Redefining marriage: Can I marry myself?

"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.

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.

UPDATE: Gay Marriage – Government Announces Changes

The Government has this week announced its plans in relation to gay marriage, which is to become legal for most religious organisations should they decide to opt into the legislation. I considered some of the issues that gay marriage raised for practitioners shortly after the government’s consultation on this subject ended in June 2012. The culture secretary Maria Miller, who announced the plans on Tuesday, detailed what she described as a “quadruple lock” to allow same sex couples to marry but also to protect those institutions and individuals that do not want to participate in performing same sex marriages from the threat of litigation on the grounds of discrimination. The legislation is designed to recognise equality whilst protecting religious freedoms. The biggest objections to the announcement have come from those institutions that are to be explicitly excluded, the Church of England and the Church of Wales, where it will remain illegal for same sex couples to marry. They are claiming that Ms Miller’s announcement was a surprise as they were not consulted on their exclusion and there may be discussion of an amendment. After the summer debates in which the Church of England claimed gay marriage was “the greatest threat to the Church of England in 500 years” it is be difficult to comprehend them now campaigning to be included in the opt in legislation. Perhaps their real objections lie in the fact that they were not given the final word in how they are treated in the legislation or that they are being singled out in a very public way as being opposed to this progressive, and for many much welcomed, change to the law.

The governments plans may also throw up some interesting legal questions such as the definition of adultery as being grounds for divorce.

If Family Law were a Sporting Event...

Scotland v England

I thought I’d have some fun with the blog this week in light of the sporting spectacular that has taken over London.

The nation may be united behind Great Britain as the greatest show on earth gets underway, but within our borders a gap has opened up in the family law arena with Scotland leaping ahead of rivals England (and Wales).

Round One: Cohabitation

The recent case of Gow v Grant which saw the Supreme Court consider the property rights of cohabitants in Scotland, has highlighted the protective laws that cohabitants in Scotland enjoy (and emphasized the mire of uncertainty south of the border).  Yes, there is talk of reform, but that is no match for Scotland’s Family Law (Scotland) Act 2006 with section 28’s game winning performance.  Baroness Hale seems to have taken up the mantle of team coach for England telling players that “lessons can be learned” from the opponents tactics.  For the moment though, the advantage most definitely lies to the north.  It’s Scotland 1 England 0.

Round Two: Gay marriage

The announcement this week that Scotland plans to legalise gay marriage puts the Scots even further ahead in these Family Law Games!  England’s hopes of legalising gay marriage rest with the athletic abilities of Mr Cameron.  In a recent statement no one could deny that the PM showed that he has the determination and the passion to go all the way.  But he will need more than courage of conviction to overcome the significant hurdles ahead which include a challenging head-to-head bout with the Church of England and the constant distraction of a shaky coalition.  Perhaps he is looking to play the long game, and regain some points for elegance of execution?  After all, England will have the benefit of watching Scotland go first through the process? If they slip up, England could capitalise on that and learn from their errors.  For the time being though, it is Scotland 2 England 0 after round two.

European Qualification

Should Scotland succeed in being crowned the UK Family Law Champions (I’m still working out the details), how might they fair on a European stage?

The current leaders appear to be The Netherlands, who trail-blazed the legalisation of same sex marriage back in 2001.  Other nations including Norway, Portugal, Spain, Sweden, Iceland, Belgium and Denmark have followed since then.  With its recent announcement Scotland might be trailing a little but its cohabitation laws, which have been in place since 2006, might help to boost their rankings.

In the mean time, I suggest we sit back and watch the real action unfold in this great city.  Come on team GB!

On your marks, get set…vote!

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?

No.

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.