Family Law

As the latest salvo in the ongoing gay marriage debate, the Telegraph (on 18 June 2012) included an article headed "Civil partnerships should have been called marriage, says top divorce lawyer".

The piece, peppered liberally with quotes from a London family lawyer, sounds a call to arms to the government to legislate for gay marriage in secular ceremonies, leaving religious groups to decide amongst themselves whether to recognise and celebrate same-sex unions.

Whilst not an original train of thought - see, for example, the Briefing produced by not-for-profit Christian think-tank Ekklesia as long ago now as 2006 entitled "What Future For Marriage?", which contemplated this and other reforms to the institution of marriage to make it more relevant - it is undoubtedly the right solution. It neatly traverses the schism that has emerged between equality on the one hand, and offended religious sensibility on the other.

The lawyer quoted went on to lambast the then Labour government for not seizing the nettle in 2004, and introducing secular marriage irrespective of participants' gender, rather than the "half-baked" institution of civil partnership ("CP").

Is this criticism fair? I believe not. Further, the suggestion that parliament would have endorsed a legislative change in 2004 allowing same sex couples to marry is naïve. It fails to take account of the reality of how rights-driven legal evolution occurs.

Family law is rich with illustrations of that evolution in action. Take divorce, for example. Until the 19th Century, divorce was (for practical purposes) only available to men. It had to be granted by Act of Parliament, limiting it further still to rich men. The Matrimonial Causes Act 1857 allowed ordinary folk to divorce, but women divorcing on account of their husband's adultery had to prove both infidelity and additional faults:  these might include cruelty, rape and incest.

The next development came in 1923, making it easier for women to petition for divorce citing adultery (albeit this still had to be proved). Further grounds were added in 1937, including drunkenness, insanity and desertion. "No fault" bases for divorce - demonstrated by the parties' separation - were added by the Divorce Reform Act 1969.

Even then, divorce continued to exhibit gender bias until well into the 21^st Century, with awards and maintenance for the less-wealthy spouse - usually the wife - being limited to her needs. The case of White -v- White [2000] 2 FLR 981, which went to the House of Lords in 2000, re-evaluated and rejected that approach, culminating (via several more recent cases) in the current assessment of financial awards largely by reference to the touchstones of fairness and sharing. 

Would it have been better for legislators in the 19^th Century to get on with it and make divorce gender-blind?  Without question. Likewise, it would have been preferable for a fairness-focussed approach to the division of financial resources on divorce to have come about without the need for decades of case law. The fact that those development happened slowly has meant that many people - predominantly women - have suffered unfairness and discrimination as a consequence.

But for that slow pace of evolution, however, these changes would never have come about at all. I cannot conceive of a Parliament in the 19^th Century passing legislation giving women equal rights on divorce. What was introduced instead was a compromise, moving things forward at the limit of what the then legislature (and the population electing it) would permit. And with each such compromise, divorce rights marched further down the road to the end point of equality.

The same is true of CPs. In 2004 (when the Bill that became the Civil Partnership Act was being debated), legislation calling relationships between same-sex couples marriages would have been defeated. As it was, the passage of the Bill was a rocky one, with numerous attempts made in the House of Lords to derail it. Its history is fascinating - see for example Stonewall's biography of the Bill.

The reality is that, without the compromise of introducing CPs as an option for same-sex couples, we would have seen little progress in the legal recognition of their relationships. CPs have helped accelerate the debate to where we are currently, with same-sex marriage being a reality and the only issue being when and how. CPs have helped change the definition of marriage in the most literal, linguistic way. I don't know a single person in a CP who doesn't refer to themselves as being married and having a husband or wife. We didn't get there immediately, and there has been some stumbling along the way. Nowadays, however, no-one (regardless of sexuality) ever says to same sex couples anything but "When did you get married?"  

CPs have given us a shared attitude and a common usage, against which opponents of same-sex marriage are largely defenceless.

So, far from castigating the Labour government for introducing CPs instead of skipping straight to same-sex marriage, we ought to be congratulating all MPs (of whatever party) for their contribution to equality for same-sex couples. Absent the launch-pad of CPs, same-sex marriage would not realistically be on the agenda at all.

Legal evolution to ensure social justice is still (necessarily) an incremental and gradual process. It still happens at the limits of what the government - given its mandate - will countenance. What CPs remind us is that that evolution can now occur in a handful of years, rather than decades or centuries.

Duncan Ranton is a Senior Associate at Russell Jones & Walker (part of Slater & Gordon Lawyers), part of the specialist childcare team based in the London office. 

He works exclusively in the field of family law, and with a particular emphasis on cases involving children. His expertise ranges from domestic cases involving disputes as to residence, contact and/or the attribution and exercise of parental responsibility all the way through to transnational cases that have raise extremely complex issues of private international law. 

Duncan is dual qualified in Australia, and is a member of Resolution's International Committee.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.