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!
The “loophole” at point 5 is no such thing. Pension schemes cannot lightly be changed retrospectively. In the same way when public-sector pension schemes were changed to include widowers’ pensions it was only service after the change which counted. In time of course all service will count; as it will with c.p. and SSM.
Point number 6 is only partially correct. The sting in the tail for trans partners who are married is the clause which is known in the trans community as the ‘spousal veto.’ The effect of this clause means that written permission is needed from one spouse for the other to obtain a Gender Recognition Certificate which is required to change one’s birth certificate and gain full legal protection as one’s affirmed gender. It allows an intransigent spouse to bar the full transition of an individual for the five years until they can get a divorce without consent. It also has relevance where a spouse may not wish to divorce for legal reasons or simply not in a position to afford the costs after being thrown out of the marital home. The Scottish Parliament threw out this clause in their Equal Marriage Bill. There is nowhere in the consultation due to end next month for this aspect of the new law to be reviewed thus it will remain a major source of inequality and injustice for transgender people.
Thanks for this insight, Nell: we’ll add a pointer to the post.
Dear Neil
Thanks very much for your comment. I suspect in practice this just wouldn’t happen. In all my years in practice, I have never known anyone condemned to wait five years for a divorce unless they wished to do so. Unreasonable behaviour does not require consent, and covers a wide range of conduct and so my suspicion is a divorce wouldn’t be held up.
Regards
Marilyn
Sadly Marilyn we have examples where spouses do obstruct divorces. When submitting evidence to Parliament I heard first-hand stories of divorces which were stretched out for 4, 5 and 6 years simply because the spouse continually changes their minds. All of these cases had property and children involved. And in the meantime the trans person is simply stuck in limbo. One couldn’t get security clearance necessary for a job because they didn’t have consistent paperwork, so they then lost that opportunity. It’s not just couples containing a trans person which have difficulties either – my sales director says his divorce took four years to settle because his ex kept changing her mind.
But when divorce courts can seemingly be so easily manipulated (and it’s generally the settlement around access to children and property that takes the time) and the law offers no get-out to those couples going through a divorce, and the divorce rate is pretty high (probably between 80 and 90% for trans people – and 30% of them become “hostile”) – trans people are very often left at the complete whim of an obstructive soon-to-be-ex spouse. The spousal veto is a complete distortion of equal rights – so much so that the Scottish Parliament discarded it from their legislation.
The spousal veto is also relevant where divorce isn’t an option due to religion, or where consent cannot be obtained because the spouse doesn’t have the mental capacity or is in a coma, or where the trans spouse hopes that their spouse will change their mind eventually and can’t bring themselves to officially end the marriage. A trans person who is in an abusive relationship could also have it held over them as another element of control.
I seem to remember saying recently that divorce should be an administrative, not a judicial process . . .
My ex wife refused the divorce as a way of continuing the domestic violence, and making me wait for my GRC. SO the ‘spousal veto’ is very real issue for Trans* people and I have no doubt that some partners will prolong the divorce
Identity is very important to us.
If we’re talking labels, I’m a family law solicitor who works with LGBT clients. and I’m also a trans woman who holds a GRC and I’m in a same sex relationship.
I am very concerned about the impact of the Spousal Veto. There are many, even within the trans community, who are still seeking to downplay the significance of it. What people don’t realise is that this is the second piece of legislation that erodes the rights of those who hold GRC’s. The first was the Equality Act which completely undermined the Gender Recognition Act, by allowing discrimination against Trans people, irrespective of whether they held a Gender Recognition Certificate that is supposed to recognise one’s acquired gender “for all purposes”.
It’s quite galling that in a week when politicians are announcing equality in our name, that some remain less equal than others.
Still very aggrieved that those concerned didn’t have the forethought to put the conversion from CP to marriage through at the same time as marriage became legal . A total oversight and one that has left many CP’ers aggrieved and feeling very much st the bottom of the pile! The commitment to “sometime” before the end if the year is just not good enough!
[…] first gay marriage to take place at a British consulate will not be recognised by the country in which it took […]
As you know the legal definition of consummation of marriage is full sexual intercourse between married persons after their marriage by the insertion of the penis into the vagina; and an inability to consummate because of impotence or refusal to consummate is a ground for nullity of the marriage. There has obviously been no agreement about the legal definition of what actions are required in respect of the consummation of same-sex marriage, which is the sole reason why same-sex partners do not have the same legal rights regarding annulment and adultery. Indeed, adultery has so far also been described as the act of the penetration of a vagina by a penis, and it follows that this can therefore only take place between members of the opposite sex. This fact alone proves that the legal definition of marriage as well as the main function of marriage has been changed by this law. There is no obligation for same-sex couples to make or keep a vow of fidelity, and no direct punishment for infidelity, of sexual promiscuity. As such, sentimental or romantic love has had no historical connection with marriage, but was something traditionally conducted outside marriage; as was the rule in the Middle-ages. (ref. Troilus and Cressida by Geoffrey Chaucer) Marriage has always, so far, had more to do with the procreation of children and a duty of care by their biological parents. It should be clear that children have now lost their legal right to be cared for, and remain in contact with, their biological parents until they come of age, unless those parents are deemed unfit for psychiatric or other medical or social reasons. It is clear to me that children have become political footballs in a “gay pride” social engineering agenda, which now prohibits the expression of disapproval regarding whatever they would themselves consider to be sexual consummation of their marriages, or any disapproval of adoption by same-sex couples by those who believe that a family consists of children being raised by their biological parents – whether or not same-sex parents are able to offer them as much love and care as their parents or a heterosexual couple. I certainly believe that those children will face unnecessary developmental problems as a result of this change in the law. As far as “the love that dare not speak its name!” (until our parliament and our parley was utterly changed by Tony Blair) I think this is both ironic and tragic matter, as far as children are concerned! This matter has become more obvious elsewhere, where people have not been silenced by politically correct ideology. I am a 72 year old married man, and once discussed this issue with an old homosexual friend who referred to members of Gay Pride as “Screamers”. He told me that he preferring to stay in the closet, rather than pissing in the wind and trying to force everyone to accept his sexual orientation! I agree with him that parliament should not force school teachers to teach children that all things sexual are equal, whether or not one believes homosexuality to be an unhealthy perversion or a normal healthy sexual activity. I have always supported Civil Partnerships to protect someone from being evicted by relatives of their dead partners. However, I believe that heterosexuals, like me, should only be asked to tolerate homosexuals, rather than condone homosexuality. I should be allowed to think of that as a symptom of a personality disorder – whether due to wrong identification with a parent, or due to teenage fixation or having been sexually abused as a child. I certainly cannot believe that society should revise the definition of consummation to include anal penetration by a penis, because sperm is carcinogenic in any other orifice than a vagina, and I cannot accepted this sexual act as either healthy or normal. I have no fear or phobia in this area! I simply don’t agree that parliament should condone anal sex, or allow children to be raised in a home where any sort of homosexual activities take place. And I am not trying to hurt anybody’s feeling by trying to uphold my freedom of speech. That’s all!