Insights

Same-Sex Marriage and Civil Partnerships – What’s in a Name?


20/07/2012

There has been a gradual global movement towards legalising same-sex marriage and the debate is increasingly on this country’s public agenda. Under the current law, same-sex couples cannot get married in this country. Marriage, whether it is civil or religious, must take place between a man and a woman.

The Civil Partnership Act 2004 was enacted to give same-sex couples rights equal to those possessed by married couples. This was achieved by creating a status that is very similar, but not identical, to marriage.

Civil partners are now entitled to the same rights as married parties, including property rights, exemptions from inheritance tax, social security benefits, and insurance and pension rights. They can also make financial claims on the dissolution of a civil partnership that are identical to the financial claims that can be made upon divorce.

So, if civil partners have the same legal rights as married couples, is there any real difference between them?

Human Rights Act 1998 (“HRA”)

In the case of Wilkinson v Kitzinger, in 2006, it was asserted that the continuing prohibition on same sex-marriage is incompatible with various rights enshrined in the European Court of Human Rights (“ECHR”), including Article 8 (respect for private and family life), Article 12 (right to marry) and Article 14 (prohibition of discrimination). The case concerned a same-sex couple who had married in Vancouver, where same-sex marriage is legal. They came to England and sought to register their ‘marriage’ here. The courts did not accept their arguments and refused to recognise their relationship as a marriage. This approach has since been upheld by the ECHR in the 2010 case of Schalk and Kopf v Austria.

Pre-Nups and Pre-Cips

The parties to a civil partnership can enter into a Pre-Civil Partnership Agreement to set out how their financial arrangements should be dealt with in the event of a dissolution of their partnership. As with Pre-Nuptial Agreements, Pre-Civil Partnership Agreements will be given effect unless it would not be fair in the particular circumstances.

The Ceremony

There are procedural differences between the ceremonies by which a marriage and a civil partnership are effected. A marriage takes place when the couple exchange formal vows and sign a marriage register, whereas a civil partnership is formed when a couple sign the civil partnership document.

Parties to a marriage have a choice between a civil ceremony and a religious ceremony, but civil partnership ceremonies cannot include religious readings, music or symbols.

Further, until relatively recently civil partnership ceremonies could not take place in religious venues, but recent changes in the law now permit civil partnerships to be registered on religious premises if they have been approved by a religious organisation which is prepared to conduct the civil partnership ceremony which must remain secular.

The Roman Catholic Church and the Church of England are not willing to host civil partnership registrations, but other religious groups, such as the Quakers and the Liberal Jews, are more open to the idea.

Divorce and Dissolution

Upon divorce, a heterosexual couple may rely on one or more of the following five bases of divorce:

  1. adultery;
  2. unreasonable behaviour;
  3. desertion for a continuous period of two years;
  4. two years’ separation with consent; or
  5. five years’ separation (if no consent)

There is a process similar to divorce for dissolving a civil partnership which is largely based on the heterosexual divorce model, but same-sex couples cannot rely on adultery as this is a term which specifically refers to heterosexual sexual intercourse. If infidelity has taken place within a civil partnership, the other party can rely on unreasonable behaviour as a fact for dissolving the civil partnership.

Governmental Proposals

On 15 March 2012, the Government launched a consultation proposing to:

  • allow same-sex couples to marry in a register office or other civil ceremony;
  • retain civil partnerships for same-sex couples only and allow couples already in a civil partnership to convert it into a marriage;
  • allow people to stay married and legally change their gender; and
  • maintain the legal ban on same-sex couples marrying in a religious service, even if the religious group in question is happy to conduct them.

Some Conservative MPs are uncomfortable with these proposals, arguing that they will undermine the traditional idea of the family. Supporters of the proposals argue that prohibiting same-sex marriage devalues and denigrates the love of same-sex partners, and to maintain separate laws for heterosexual and same-sex partners is a form of sexual apartheid.

Nick Clegg has said his party will be supporting same-sex marriage, and David Cameron has given Conservative MPs a free vote on the issue of samesex marriage as he believes this is a ‘conscience issue’. This may be an attempt to avoid a rebellion from those members of his party who oppose samesex marriage.

While some people believe that true equality can only be achieved by allowing same-sex marriage, others argue that the legalities of marriage and civil partnerships are so similar that it does not matter what they are called as this is merely a question of semantics.

Gordon Dadds