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Same Sex Marriage Legislation Explained

The UK Parliament passed The Marriage (Same Sex Couples) Act in July 2013 to allow same sex marriage in England and Wales. The legislation came into force on the 13th of March 2014; with the first same sex marriage taking place just a minute after midnight on the 29th March 2014. By October 2015, 7366 same sex marriages had taken place.

Why pass the act?

Supporters for same sex marriage were of the view that a different procedure and label perpetuated the notion that same sex relationships are not as valid as heterosexual ones, and the difference in legal rights equated to inequality. Further, the international recognition of marriage was sought after, as a civil partnership is not universally accepted. The intention behind the legislation is that now, irrespective of sexuality, everyone in British society can make the commitment to marry.

Where children are involved the impact of the legislation is deepened. If two people of the same sex have a child, and one of them is the birth parent, marriage rights now allow the husband/wife of the birth parent to have parental responsibility without having to fill out endless forms. However, the practicalities are only the start of it; passing this legislation has a much wider impact; it demonstrates our societies respect for individuals and their wishes, regardless of their sexuality.

The Act explained

The act allows same sex couples to marry in civil and religious ceremonies where the religious organisation has ‘opted in’ to conduct such ceremonies and the minister of religion agrees. The act also allows civil partners to convert their partnership to a marriage if they wish; just over two years after the act came into force there had already been 7732 conversions from a civil partnership to a marriage. The act further allows married individuals to change their legal gender without having to end their marriage.

Comparison between same sex marriage and civil partnership

Alongside the different wording in the legislation, there are differences in the process of marriage compared to civil ceremonies and in some of the rights afforded to the couple:

  • Civil ceremonies require no words to be spoken, whereas a marriage is solemnised by a prescribed form of words.
  • Same sex couples who got married abroad under foreign law, who were consequently treated as civil partners in England & Wales, are now recognised as being married in England & Wales. This is now the same the other way round as marriage is recognised worldwide.
  • Same sex couples can now legally refer to each other as ‘husband or wife’ rather than ‘partner’ in a civil partnership.
  • With same sex marriage, there is now the opportunity to have a religious, rather than purely civil ceremony. Though there are restrictions on this apparent freedom, as noted below.
  • Marriages are ended by divorce, whereas civil partnerships are ended by a dissolution order. The grounds vary a little between marriage and civil partnership; adultery is not a ground for dissolution, though it is only a ground for divorce if the person has sexual intercourse with someone of the opposite sex.
  • In terms of State pensions, civil partners are treated the same as men married to women, irrespective of their gender. This is the same for the inheritance of state pensions for widows and widowers; surviving civil partners are treated the same as men whose wives have died.
  • The grounds for annulment of a same sex marriage are relatively similar to that of a civil partnership.

Due to the higher levels of recognition of marriage, it is not surprising that couples opting for Civil Partnerships fell by 70% between 2013 and 2014. However, it is also to be considered that civil partnerships currently remain available only to same sex couples, though the Government has indicated that it will review this in the near future.  A recent consultation found that 61% of respondents supported civil partnerships being made available to same sex couples as well as opposite sex couples.

Comparison between same sex marriage and opposite sex marriage

The new Act remains separate from the Marriage Act 1949, which allows opposite sex couples to marry, although the provisions are largely the same and afford married same sex couples the same legal status as married opposite sex couples.  The term “marriage” and “married couple” is now extended to include same sex couples however some differences do still remain:

  • Under the 2013 Act, for state pensions, married same sex couples are treated the same as men married to women, irrespective of their gender.
  • A highly criticised aspect of the Marriage (Same Sex Couples) Act 2013 is that same sex couples receive less pension inheritance rights than opposite sex couples. With Occupational Pensions, the amount that a previous employer has to give is based only on contributions made since 2005, before this, any money paid out is discretionary. Opposite sex couples would be entitled to the full amount of the pension that remained. This criticism is currently under government review, though with the review starting in 2014, change does not appear to be imminent.
  • The grounds for annulment of same sex marriage also differ from opposite sex marriage. In cases of same sex marriage, non-consummation of the marriage and adultery do not act as grounds for an annulment, whereas in opposite sex marriage they do. This is because adultery, in the eyes of the law, remains to be having sexual intercourse with someone of the opposite sex outside of the marriage.
  • The divorce procedure for a same sex marriage is the same as that of an opposite sex marriage. However, adultery is again only considered if it is with some one of the opposite sex, highlighting arguably out-dated laws. A same sex spouse would therefore be unable to obtain a divorce based on adultery (although any alleged infidelity with another person of the same sex could be used as evidence of unreasonable behaviour in support of a divorce application).

The conflict

The elephant in the room is the conflict between same sex marriage rights and the Church. The Marriage (Same Sex Couples) Act 2013 aims to protect religious freedom alongside the rights of those wishing to marry someone of the same sex. This means that religious organisations and their representatives who do not wish to conduct marriages of same sex couples are protected from successful legal challenge. This is based on Article 9 of the European Convention on Human Rights, which guarantees the right to freedom of thought, conscience and religion. Religious organisations then have the choice to ‘opt in’ to same sex marriage ceremonies. Whilst this appears to be parliament trying to strike a fair balance, the decision has been criticised by LGBT campaigners, mainly because the part that is kept quiet in promotion of the new legislation is that the Church of England and Church in Wales are explicitly banned from performing religious same sex marriages.

The area is highly contentious, whilst a fair balance is intended, both sides can still argue that the rights are unfair. ‘Canon Law’ is the law of the Church of England, it is part of the law of the land and it specifically states that marriage is in its nature a union of “one man and one woman”. If the legislation were to apply to the Church of England, this would question the laws upon which the whole Church of England is based on. The Church have even warned that the legislation of same sex marriage could have led to the disestablishment of the church due to the fact that if same sex marriage were allowed in the Church of England, the whole range of rights and duties that exist in relation to marriage and the church of England would have to be re-examined.

The other side of this of course is not one based on tradition, or old laws, but on the rights of individuals who wish to express their love for each other, and their commitment to their religion in the same way that heterosexual people can.

Conclusion

Whilst there is still conflict and a need to continue campaigning in the eyes of some, the change is welcomed by the majority and considered a step in the right direction even for those campaigning for more. It appears that Parliament has sought to strike a balance, and despite disagreement it cannot be argued that they have not achieved this to an extent.

The rights of same sex couples are now recognised in our legal system, and the writer would argue that this in itself is a massive step forward to reaching equality.

Article created by Tabitha McKie.

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