With the Marriage (Same Sex Couples) Act 2013 coming into force and the first gay marriages due to take place at one minute past midnight on Saturday 29 March 2014, here is my family lawyer’s overview of the new legislation.
1. Civil partners can’t marry (yet). The Government says those in civil partnerships cannot get married until systems are updated, which they should happen before the end of the year. Civil partners will be able to “convert” a partnership into marriage in the future, but are under no obligation to do so. When a civil partnership is converted into a marriage, the civil partnership will come to an end and the marriage will be treated as though it had existed from the date of the civil partnership.
2. There is a consultation about the future of civil partnerships. A consultation on the future of the Civil Partnership Act 2004 is currently in progress, closing on 17 April 2014. Some of the questions under consideration: now that we have same sex marriage, should civil partnerships be abolished? Or should their validity be restricted to those who have already entered into them? Or, instead, should civil partnership be opened up to opposite sex couples?
Same sex marriage is seen as being more of a spiritual commitment than a civil partnership. To enter into a civil partnership, you have to sign a document. By contrast, a marriage ceremony also requires an oral contract: in other words, you have to stand up and speak.
3. Same sex marriages from overseas are already recognised here. Same sex marriages contracted under foreign law are recognised as marriages in England and Wales. This applies to marriages entered into in the future, as well as current marriages. However the Civil Partnership Act 2004 does not provide a mechanism for civil partnerships celebrated according to the laws of other countries to be converted into a marriage.
4. For same sex spouses, adultery cannot be given as the reason for divorce. Nor will same sex spouses be able to have the marriage annulled on the grounds of non-consummation. Although not defined in statute, case law defines adultery as sexual intercourse between persons of the opposite sex. So a man can be divorced because of a sexual relationship with another woman, but cannot be divorced because of his sexual relationship with another man.
Stonewall, the gay rights group, has pointed out that even if this persists, a gay spouse can still petition for divorce on the basis of their partner’s unreasonable behaviour. This could include having an ‘inappropriate relationship’ with another person.
However I would also like to point out that technically speaking, there is one scenario in which a same sex married couple could divorce because of “adultery”. This would be if one spouse entered into a sexual relationship with a member of the opposite sex.
5. When it comes to pensions, gay married couples cannot yet count on equality. Instead, they are to be treated in the same way as civil partners: by law, they are only required to be treated equally with married couples of the opposite sex with regard to “pensionable service” on or after December 2005.
At present, a loophole in the Equality Act 2010 permits private occupational pension schemes to disregard years of contributions by gay employees and limit survivor benefits for civil partners. The Department for Work and Pensions is currently reviewing the imbalance, so the situation may change in the future.
6. The new Act is also good news for transsexual spouses. Until now, a transsexual person could not be married, if he or she was to get a Gender Recognition Certificate. This certificate gives its holder all the same rights as other people of his or her acquired gender. The restriction was in place because, under UK law, a marriage was only valid if it was contracted by two people of the opposite sex in law. In effect, the new Act means that a spouse who undergoes gender assignment, but who wishes to remain married, can now do both. [EDIT: But see Nell’s comment, below, for details about the “spousal veto”.]
With the rainbow flag flying from Whitehall, the new legislation is a cause for celebration. Congratulations to all those planning to tie the knot in the coming weeks and months!