"Do you take yourself to be your lawful wedded...er self?" |
Word count: 981
Time to read: 3 minutes
Er…no.
As a family solicitor you
do, on occasion, get asked some pretty strange questions. This one came from a friend on a night out
after she had recounted, with some frustration, details of a recent date which
had not gone as well as she had hoped. From that lighthearted outburst
followed a semi-serious debate about the definition of marriage, which has been
given some very serious attention in recent months due to the Marriage (Same-Sex Couples) Bill which is currently being considered by parliament. The topic has also been given some serious consideration in other jurisdictions around the world with both New Zealand and now France voting to legalise same-sex marriage within the last week.
The current position in
England and Wales is that only a man and a woman can enter into a marriage and
only same-sex couples can enter into civil partnerships. The current government is looking to change
this and allow same-sex couples to marry. This involves significant amendments
to no less than nine different pieces of primary legislation including the:
Marriage Act 1949;
Matrimonial Causes Act 1973
Domicile and Matrimonial Proceedings Act 1973;
Civil Partnership Act 2004; and
Gender Recognition Act 2004.
Domicile and Matrimonial Proceedings Act 1973;
Civil Partnership Act 2004; and
Gender Recognition Act 2004.
Some of the amendments which
might come to the attention of practitioners are:
- The creation of a ‘jurisdiction of last resort’ (DMPA 1973) for those same-sex couples who marry in England & Wales but who remain habitually resident overseas where their marriage is not recognised and therefore divorce is not available to them.
- A provision which allows individuals already in a marriage to change their gender without the need to formally end the marriage first (GRA 2004). The same applies for civil partnerships where both parties wish to change their gender simultaneously (it is not possible to have a civil partnership between a man and a woman).
- When considering the facts to support the irretrievable breakdown of the marriage, adultery can only be used if the respondent had sexual relations with someone of the opposite sex (MCA 1973). This would effectively preclude married gay couples from being able to rely on this fact when seeking a divorce.
One of the points raised by
those who oppose the amendments is that same-sex marriage violates one of the
fundamental purposes of marriage, that of procreation. Whilst there is no legal
requirement for a couple to have either the desire or ability to have children
in order to marry, the concept of a husband and wife creating a stable and balanced
environment through marriage to raise their children has long been established
in both religion and society and the traditional legal definition of marriage
has to be viewed in that context. But
let’s take children out of the equation. If procreation is truly no longer a
tenet of marriage then how important is it that the couple wishing to marry have
the biological potential to create new life without the need to resort to
science or surrogates? If the answer to
that is ‘not much’ then arguably the primary reason for marriage becomes the
commitment to each other and all that entails.
So what if you did want to
make that commitment to yourself? Why not? There are some obvious perks. You would not have to share the
wedding gifts with anyone, although writing all the thank you cards on your own
could be rather tedious. And if you decided to go your separate way then any arguments over the division of
matrimonial assets are unlikely to be acrimonious. Then again, would you be committing adultery if you slept
with someone else? A potentially
significant question if you were looking to justify divorcing yourself. Although, you might also have trouble
convincing a judge that you have not cohabited with yourself for a period of
six months leading up to the petition, depending of course on when you discovered
your adultery. As you can see the idea
quickly lends itself to absurdity.
Returning to the proposed
Bill, if the purpose of the amendments is to grant people the freedom to marry
whomever they choose then why not take that concept further and allow marriage between
more than two people (another objection raised by opponents to same-sex marriage)? Last year, a court in Brazil controversially approved a marriage between three people. This was not a traditional polygamous
marriage where a husband had more than one wife but an equal union between
three people equally committed to building a life with one another.
Were we ever to go down that route then the necessary amendments to primary
legislation are likely to be much more extensive than the current ones and the
family law profession would need to adapt significantly, particularly for when such relationships break down. After all, it is difficult enough to resolve
matters of matrimonial assets, contributions, pension entitlements and spousal
maintenance etc. when there are only two people involved let alone three or more!
Joking aside, the debate
surrounding the redefinition of marriage is a serious one and is unlikely to go
away no matter what trajectory the Marriage (Same-Sex Couples) Bill takes and
is one practitioners should be aware of. In recent decades the changes in society, science
and the law have been profound. Consider the staggering developments in IVF treatment over the last 50 years
(and the consequent rise in alternative families), not to mention the
establishment of civil partnerships in 2004 and the more recent rise in
popularity of pre-nuptial agreements since the Supreme Court’s decision in
Radmacher in 2010. It would be foolish
not to expect family law to continue to evolve as society progresses and we
cannot ignore potential amendments to legislation or the impact that such
changes will have.
Who knows
what we will be debating in 2023! That said, I don’t think I will be advising
my friend to give up on the dating scene just yet.
Thanks for reading.