Mind the Gap. Why gay marriage changes may be about to take the wrong step

19 June 2012

The recent fuss about Coalition plans to bring in gay marriage hasn’t centred on legal aspects so much as political and cultural ones. Is David Cameron pushing for a free vote, or will MPs be whipped into following the government line? If the law is changed, is the Church of England going to refuse to conduct gay marriages, because the Church says a man and woman, only, can marry? Will the Church be permitted to do this? Currently, civil partnership ceremonies are devoid of religious language - and the Church wants to keep it that way, and to keep marriage heterosexual.

In fact, we already have gay marriage in law, as family lawyers can tell you. Civil partnership is exactly the same bundle of rights and obligations. A civil partner receives the same treatment in divorce and upon death as a married person (in death this notably includes inheritance tax benefits and survivor’s pension benefits). But the stigma remains of having a different label – making many civil partners feel second class. Hence the proposed change to the full “marriage” label.

Against this, a relatively little-reported legal case is currently going to Strasbourg for a declaration about the compatibility, against European human rights norms, of our laws in England and Wales on same-sex civil partnerships, and those on full marriage. (See Ferguson and Others v UK ). The heterosexual couples involved were recently refused permission in the UK for civil partnerships, and the same-sex couples involved were refused permission to marry. The claim requires the European Court of Human Rights to declare whether the parallel institutions of civil partnership and marriage constitute discrimination and/or breach the right to marry or private life. At least one academic commentator believes the result of the case will be to require the government to provide for same sex marriage and that second tier same-sex civil partnerships will disappear.

If Strasbourg goes that way, and in any event if the government legislates that way as it may do soon anyway, we will be left without a statutory alternative to marriage for either same-sex or heterosexual couples – no more civil partnerships – and so an all or nothing legal situation.

For many groups of people, including those of an ideological persuasion (feminists and those against organised religion) or those with experience of other jurisdictions, and for family lawyers this will seem a shame. For example in both Scotland and France, our legal neighbours, provision is made for those in heterosexual relationships, short of marriage, to have rights on separation or death. The laws do not work perfectly in either jurisdiction, but the laws there show up to the huge gap we may be about to create here – we may have marriage, but otherwise nothing. And for the lack of protections in the “nothing” category, try talking to family lawyers about the mess of our unreformed law on unmarried cohabitant rights to property. There basically are no such rights. As we like to say, there is no such thing as a common law wife.

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