Thursday, 21 June 2012

Gay Marriage. Gay Divorce. Same Difference.

As the deadline for the government’s consultation paper approached on 14 June 2012, it was difficult to avoid the media battle between those in support of the Church of England and those in support of gay marriage.  I am not going to give an extensive review of all the arguments for and against gay marriage here (there is plenty of information out there already) but rather I wanted to give some consideration to one particular argument and to the practical challenges which may arise for family law practitioners if gay marriage is legalised.

Confusing Uniformity with Equality
Part of the case against gay marriage is that equality can be, and has been, achieved without the need to legalise gay marriage.  After all, they have civil partnerships which confer the same rights in terms of property and finances as married couples enjoy.  What more could they want?

Civil partnerships were a huge step forward for the gay rights movement but I can’t help thinking that they were a bit like the ‘Women’s Bar’ at the golf club.  Fortunately, that is not something you see much of these days but there was a time when, as long as the facility was provided (even if it was through the back door or on the other side of the car park), it was considered that you had complied with the need for equality.  But that is a false equality.  Even if the Women’s Bar is just as grand, what is wrong with the women using the Main Bar (almost never referred to as the Men’s Bar) and participating in that particular part of the club’s heritage?
Uniformity is not always necessary to achieve equality.  That is true. In fact, in some cases a non-uniform approach may be necessary to ensure that equality is achieved.  But the question here is whether the non-uniform approach of providing gay couples with civil partnerships and straight couples with marriage achieves equality.  I submit that it does not.

Is a Civil Partnership Equivalent to a Marriage?


It is not before God, it does not have the same social and historic connotations and, whilst I cannot speak for those who have entered into a civil partnership, my own experience of marriage is something quite profound.  There is nothing quite like referring to my ‘husband’ and being called his ‘wife’.  I’d hate to deny anyone that, no matter who their choice of partner is.
I have seen it suggested that there is a fundamental difference between a gay couple and a straight couple that needs to recognised and accommodated in law and religion.  I do not accept that that stands up in this modern society.

Whilst there may be arguments that marriage, in the traditional sense, is rooted in a need to create offspring and a suitable environment within which to raise them, that is simply not the case anymore.  Not every straight couple who marries chooses to have children and not everyone who has children chooses to get married.

Furthermore, every couple will be different no matter what its composition.  Every two people in a relationship will have their own way of loving each other, expressing that love and building their lives together that will be unique to them.  Even if there is an inherent difference in the way in which two men or two women relate to each other, as compared to a man and a woman, it is a completely arbitrary test and it cannot be considered grounds for determining what legal rights they are entitled to.
Same old, same old.

So what of those challenges that the family practitioner may face when dealing with gay marriage?   Let’s take s.25 of the Matrimonial Causes Act 1975; we know from Lawrence v Gallagher [2012] EWCA Civ 394 that the courts will not be treating the dissolution of a civil partnership any differently to the breakdown of a marriage.   It is possible that there may be various factors to consider that will come up more often in same sex relationships, perhaps in relation to children (IVF or surrogacy disputes), or consideration of contributions to the ‘marriage’ that might require a further re-evaluation of the traditional relationship stereotypes.  In that regard, it may widen the scope of issues that practitioners may have to consider when advising clients but ultimately, there will be few new challenges that family practitioners don’t already face in dealing with the wonderful array of colourful characters, with their quirks, questions and unique relationships arrangements, who come to us for advice on the breakdown of traditional marriages or civil partnerships.

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