Family Law

Hannah Saxe, Irwin Mitchell, Manchester

The City of Manchester is getting ready for Manchester Pride this weekend and a hot topic for many of the festival goers and LGBT rights groups is likely to be the recent reforms surrounding equal marriage.

From 29 March 2014, same-sex couples have been able to marry in England and Wales thanks to the Marriage (Same-Sex Couples) Act 2013. This was a great stride forward in achieving equality for many people but there is still work to be done.

Opponents of the Act claimed that equal marriage was unnecessary as it has been possible for same-sex couples to enter into civil partnerships since 2004 giving them many of the same legal rights and responsibilities towards one another as married couples. There are, however, key differences between civil partnerships and marriage. For example, a marriage is formed by saying prescribed wording or vows. A civil partnership is formed by signing a civil partnership document. In addition, civil partners are not permitted to legally call themselves ‘married’ or use the terms ‘husband’ or ‘wife’. Supporters of equal marriage highlight that these differences indicate that society attaches less weight to civil partnerships. Marriage is after all an institution at the heart of English culture. The fact that it is now available to same-sex couples therefore represents significant progress in terms of social inclusion.

Where does this leave civil partnerships? It is still possible for same-sex couples to remain in or enter into a civil partnership as an alternative to marriage. A government consultation in June 2014 about the future of civil partnerships concluded that they should not be abolished, closed to new couples or extended to opposite sex couples.

In addition, the Act provides for couples who are in a civil partnership now to convert it into a marriage, although delays in implementing parts of the Act mean there is no current procedure for doing so. The government have indicated that this will be possible from December 2014.

The Act allows for any religious organisation that wishes to conduct same-sex marriages to do so. It is not, however, currently possible for same-sex marriages to be conducted by or in the premises of the Church of England or Wales. This means that many religious couples will be confined to having a civil marriage at a registry office which cannot legally include any religious content.

It was the case that someone living in an acquired gender could not receive a full gender recognition certificate if they were already married because a marriage was only valid if it was between two people of the opposite sex. This led to people ending marriages in order to obtain a full gender recognition certificate only to thereafter enter into a civil partnership with their former spouse. The good news is that this is no longer necessary: people living in an acquired gender who are already married and wish to apply for a full gender recognition certificate can now do so and remain married if their spouse consents. It is, however, still only possible for a civil partnership to be between two people of the same sex. Therefore, if a civil partner wishes to change gender and obtain a full gender recognition certificate they must end their civil partnership unless (in the pretty rare circumstances) their partner wishes to change gender and apply for a full certificate too.

Equal marriage remains out of reach for those who are non-binary transgender and do not identify as male or female. If they want to get married or form a civil partnership they can only do so by saying that they identify as a particular gender.

It is not possible for a civil partner seeking dissolution to rely on their partner’s adultery, as the legal definition of adultery is sexual intercourse with someone of the opposite sex outside of marriage. This also means that a person in a same-sex marriage cannot seek a divorce on the basis of their spouse’s adultery if the infidelity in question was with someone of the same sex, as the definition has not been changed by the Act. There is also no legal requirement for a same-sex marriage to be consummated, as is the case with heterosexual marriage. These remaining variances could still lead to different treatment of same sex couples.

When I recent spoke to a local LGBT group in Manchester, LGBT Youth Northwest, their views were that whilst there is not yet equality for everyone, the Act certainly represents a ground breaking and significant step in the right direction that will hopefully lead to further social change and support for additional legal reforms.

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