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Published: Fri, 02 Feb 2018

Civil partnership vs. marriage

Introduction

As a law student with a particular interest in family life, there has always been a distinctive curiosity in our full rights as human beings. It is clear that the UK law has certainly made some positive progress over the years with such things as the ‘Human Rights’ and ‘Equality’, but just how far is Parliament willing to alter their legislations in order to satisfy their British citizens. To date there have been numerous changes, from women being able to vote and improved racial laws, to the main reason for this dissertation; same-sex couples being able to express their love for each other without committing an offence.

This dissertation is an attempt to address the issue of same-sex couples not having the right to marry. Marriage is perceived as a wonderful thing between man and woman, but in today’s society things have changed immensely and Parliament has certainly recognised this. People are exploring their sexuality in many ways and now with same-sex couples having the right to live their lives more freely; more and more rights are sought after. With the Civil Partnership Act 2004 becoming part of the British legislation, it is apparent that the UK Parliament have taken advance steps to reach equality, allowing these civil partners the same rights as a married spouses.

Until 2005 same-sex couples were never able to take their relationship to a legally recognised degree, and although this act may be perceived as a good will gesture by some people, there are still some differences between marriage and civil partnerships which some same-sex couples consider to be discriminatory.

Civil partnership is believed to be equivalent to ‘civil’ marriage, although there is still diversity between the two and for this reason, this dissertation is going to focus on the question from the views of those same-sex couples who want ‘marriage’ itself. By looking into the requests and protests covering this topic of same-sex marriage, there may be evident concerns for these people and their ‘human rights’.

In order to achieve an answer to the selected question, this dissertation will need to be divided into individual chapters, which will focus on particular elements of the issue and with any luck come to a conclusion why ‘same-sex couples can not marry’, and maybe even uncover a solution as to what future changes could be made in order make this possible.

The first chapter will concentrate on the law relating to civil partners and married spouses, what differences they may have and the similarities involved. The second chapter will focus on the rights and responsibilities of civil partners, and the rights they now have which differ from those before the Civil Partnership Act 2004 came into legislation. Chapter three will cover what it is that same-sex couples want in regards to their relationships. It may show that civil partnership is not as satisfactory as thought to be and some same-sex couples may want more. Marriage has become a much desired practice within the gay community, so why has it been restricted? Many people are both for and against same-sex marriage and this chapter will cover their views. The fourth and final chapter will analyse and compare same-sex couple’s rights in the UK with those in Spain. These findings may explain and expose what the future holds for same-sex couples in the UK and if the UK law will be satisfactory for those it involves.

All of the information gathered should aid in explaining why same-sex couples can not marry in the UK, for what reasons and what could be done to make a change. Without a doubt, the Human Rights Act and Equality Act is assumed to be the answer in finding a solution for this dissertation, but depending on what is found within this work, it may be more complicated than believed.

Chapter 1- Civil partnership vs. marriage

1.1

This first chapter is going to focus on the current UK law regarding marriage and civil partnership. This should aid in finding out if the Equality Act really does play a role in today’s society for same-sex couples, or if the Civil Partnership Act is just a strategy used to help cover up the minute discrimination still going on today. Focusing on the differences and similarities will help explore civil partnership and help find out just how far Parliament has gone to achieve equality between homosexuals and heterosexuals.

Today, couples may wish to either cohabitate or form a legally recognised relationship. There are three forms of adult relationships that are recognised by the UK law: religious marriage, civil marriage and civil partnership.

Even though, it is clear civil marriage has more comparisons to a civil partnership, this dissertation will focus on marriage as a whole. By looking at the reasons why people choose to get married or enter into civil partnerships, should assist in coming to the distinction between a marriage and civil partnership.

1.2

There are different definitions or concepts of ‘marriage’ and depending on the individuals involved their definitions may vary as to what they believe it to be. For instance a husband’s understanding may be very different from those of his wife.

There were two legal definitions of marriage set, one by Lord Penzance:

‘… as understood in Christendom, may for the purpose be defined as the voluntary union for life of one man and woman to the exclusion of others’.

The other, by Thorpe LJ:

‘contract for which the parties elect but which is regulated by the state, both in its formation and its termination by divorce because it affects status upon which depend a variety of entitlements, benefits and obligations’.

There is clearly a great time difference between the two quotes; this is evident from what was stated above. Lord Penzance’s (1866) definition makes it clear that marriage under the common law of England and Wales required individuals of the opposite sex and therefore, it is obvious that the idea of same-­sex unions were not recognised or even considered at the time. Additionally, Christianity is not the only form of marriage which is acceptable today, and marriage no longer seems to last for eternity, with such things as adultery becoming common and parties choosing to exercise their rights under divorce law. (If there is exclusivity, it is not always a union of equals. According to Blackstone, the woman’s being and legal existence is suspended on marriage).

Thorpe LJ had a more contemporary explanation of marriage. A contract between the two intentional parties (unless a sham), this is a very vague definition and could be argued it includes homosexuals as well as heterosexual couples. However, due to the state regulating the formation and termination of a marriage, it is apparent that the state would only allow the heterosexual couples to do so.

In addition, a quote was taken from Ghaidan v Godin-Mendoza, which specified marriage to be a union of man and women. It stated that the spouse’s partner had to be of the opposite sex and there need not be stability, faithfulness, sex, long-lasting and consent.

This could be seen to contradict with some, if not most of the Marriage Act 1949 regulations. If a marriage did not include those listed above, then the marriage is most likely to end in divorce or be classified as a sham. It seems to be focused more on who can marry, than the content of the relationship itself. This may suggest that two complete strangers could form a valid marriage.

Although these definitions exist, there appears to be three main reasons people wish to marry or become civil partners. These incentives are: legal reasons, religious beliefs and to prove their commitment to one another.

The right of men and women of a marriageable age to marry is preserved in Art 12 European Convention for the Protection of Human Rights.However, same-sex couples do not have this privilege, as they cannot marry, but have been given an alternative of ‘civil partnership’. The Civil Partnership Act 2004 (the CPA) became part of British law on 5 December 2005 and was said to have been designed to send a clear message, which enables same-sex couples to obtain respect and legal recognition of their relationship by forming a civil partnership.

This was a new legal relationship exclusively for same-sex couples, which provides all the rights and responsibilities of a civil marriage, coupled with social recognition of the status of their relationship.For those who are in same-sex relationships the ‘Civil partnership’ was sought to be the solution for gay couples to marry, although they cannot technically marry, and possesses the same benefits, as heterosexual couples.

There are a few similarities within a marriage and a civil partnership. They both require legal formalities that need to be fulfilled in order to be valid. The ceremonies require the presence of each other and a minimum of two other persons, who will serve as witnesses and are able to sign the registration documents. Along with this, neither of the couple can already be in a civil partnership or lawfully married, and they cannot fall within prohibited degrees of the relationship, (although, two people within prohibited degrees of relationship in marriage e.g. same-sex, could in fact be permitted to become civil partners).They also have to be16 years of age and older.

Persons between the ages of 16 and 18 may marry under the same conditions; however this should be done with written consent from their parents or other lawful guardians.Nevertheless, a marriage is not deemed void without consent of a person which has parental responsibility, as a child has a right to challenge their parents’ refusal by going to the courts, as a consequence the courts may override the parents’ refusal. With this said, the question is, is parental consent essential? This is purely based on the fact that 16- 18 year olds are allowed to consent to life saving medical treatment and have sex, these are very mature decisions to have to make at such an age, so needing permission to marry could be a little patronising.

The differences within the legal formalities are, marriages have to be formed by people of the opposite sex and civil partners are of the same sex. A civil partnership or marriage could be void or voidable if none of those stated above were followed.

The law insists that the parties intending to form a civil partnership or marry have to publicise their civil partnership/marriage before it can be solemnised. This could aid in reducing (sham marriages) human trafficking and illegal immigration. This is good for both parties involved and will improve UK marriage laws. Although to some this can be seen as an invasion of their privacy as they may not have the means to do so.

There are many differences concerning the ceremony itself. Firstly, civil partners can only have the signing a civil partnership document, which is restrained from any religious activity; whereas, married couples exchange vows, rings and marriage banns, and secondly there are four types of ceremonies which the legislation permits for marriages only:

  • Civil ceremonies,
  • The Church of England,
  • Jewish & Quaker weddings,
  • Marriages in a registered place of religious worship

It could be disputed that these ceremonies are not fair for those who have their own religion e.g. Muslims, this is because they have to proceed with a civil ceremony as well as their own ceremony in order for their marriage to be recognised in UK. Several different religions have been created. Accepting these religions to be used as a basis for legitimising a marriage in the UK would be impractical, but some religions such as Muslim weddings should be, Islam is one of the most recognised religions in the UK, but is still unable to have their marriage recognised under UK law; surely this could be seen as unjust.

However, when comparing marriage to civil partnership, it is clear that marriage has more benefits. The sites where same-sex couples could enter into a civil partnership were restricted. There were certain offices where the registration could take place; some examples being: hotels, restaurants, and prestigious buildings. However, on 17 February 2011, the Government announced that it intended to launch a consultation on implementing section 202 of the Equality Act 2010; this was considered as a move towards building equality between civil marriage and partnerships. With this announcement came mixed reviews, which will be explained in more detail in chapter three.

In reality, heterosexual couples have the choice between civil marriage and religious marriage, so why deny gay couples a similar choice. The CivilPartnership Act 2004prohibits civil partnership registrations taking place in religious premises. However, section 202 of the Equality Act 2010removes this prohibition. This made it possible for civil partnerships to be registered on religious premises where religious organisations permit this. The section also states, for the avoidance of doubt, that religious organisations will not be obliged to host civil partnerships if they do not wish to do so.

With this said; if same-sex couples were to consider having their ceremony take place on religious premises’, but were refused permission to have their civil partnerships registered in the Church, could the couple choose to take legal action (breach of Equality Act)? In recent times a same-sex couple have had their blessing rejected by a church in the UK, where the Rt Rev Thomas McMahon, said:

‘We would not be hold civil partnership services in our churches because it goes against our teachings and what we believe marriage to be.’

Nothing in the Civil Partnership Act 2004 obligates any religious organisation to host civil partnerships if they do not wish to, and the Equality Act 2010 states that religious organisations will not be obliged to host civil partnerships if they do not wish to do so.

There is an interesting clash between section 202 (4) Equality Act 2010 and section 29 of the Equality Act. Section 29 makes it illegal to discriminate on grounds of sexual orientation in relation to the provision of services. However, with a marriage ceremony and civil partnership registration, there are different services, so if a church simply refused to offer the specific service of civil partnership registration, they could not be said to be discriminating in the provision of that service. A refusal could certainly have a discriminatory appearance, but this would be protected by the separate regimes provided by statutory law.

The Equality Act is unlikely to assist legal action against religious organisations which refuse to conduct civil partnership registrations on their premises, even if it did amount to a form of discrimination. Paragraph 2 of Schedule 23 of the Equality Act provides a sexual orientation discrimination exemption for churches, synagogues, mosques and other religious organisations that refuse to facilitate civil partnerships.

Although religious organisations are protected, it could be argued that the religious organisations should never have been put in this predicament in the first place. Most, if not all religions believe marriage is for man and woman, so this could be seen as an offense towards their religious beliefs.

Archbishop Peter Smith of Southwark has strongly criticised the Government’s intention to consider definition of marriage to include same-sex couples. He argued that marriage

‘did not belong to the state……..It is a fundamental human institution rooted in human nature itself. It is a lifelong commitment of a man and a woman to each other, publicly entered into, for their mutual well-being and for the procreation and upbringing of children. No authority – civil or religious – has the power to modify the fundamental nature of marriage…..‘A consenting minister is perfectly free to hold a religious ceremony either before or after a civil partnership. That is a matter of religious freedom, but it requires no legislation by the state.’

This could be argued that the Government may have exceeded its boundaries.

If religious organisations refuse to carry out a civil partnership, could this facilitate the diversity between the marriage and civil partnership? Civil partnerships are alleged to be marriage in all but name under UK Law; which is explained in Wilkinson v Kitzinger (2006). The claimants argued:

‘…simply not acceptable to be asked to pretend that this marriage is a civil partnership. While marriage remains open to heterosexual couples only, offering the ‘consolation prize’ of a civil partnership to lesbians and gay men is offensive and demeaning…. access to this institution is an equal rights issue….the argument of ‘separate but different’ is unacceptable……..marriage and civil partnership is clearly not equal…’

This quote shows that civil partnership is not enough and same-sex couples want everything heterosexual couples are entitled to, including the title. The claimant see civil partnership as a consolation prize, and describes it as offensive, surely this confirms that civil partnership is not enough for some couples and cannot be considered equal if they cannot have the title ‘marriage’, let alone a religious activities.

Any marriage which is celebrated in UK must be registered in accordance with s 53 Marriage Act 1949. This registration is proof that the ceremony did take place. However, failure to do so will hold the marriage as void. If they have undergone a ceremony they would need to show beyond reasonable doubt the marriage was invalid. This is the only way to presume if there is a marriage or not.

There are possibilities of a presumption of marriage. In A-M v A-M, it was presumed that they married overseas, and was held as a non-marriage. However, Martin v Myers presumed marriage was rebutted.

The Matrimonial Causes Act 1973, s 11-13 sets out the grounds in which a marriage is voidable. In addition, a marriage can come to an end. Where a marriage is annulled, the law recognises that there has been a flaw in the establishment of the marriage, rendering it unsuccessful. A divorce is when the creation of the marriage is considered proper but subsequent events signifying that the marriage should be brought to an end.

A Civil Partnership can end in either annulment, a death of a party, or on an order of dissolution. Dissolution is the termination of a civil partnership; this is divorce for civil partners. This is done in the same manner as divorce for civil marriage.

Dissolution is the equivalent of divorce .The process for dissolution of civil partnership is the same as for divorce. The only exception is adultery, which is a specific legal term relating to heterosexual sex and cannot be used as grounds for dissolving a civil partnership. If your partner is unfaithful the grounds for dissolution would instead be unreasonable behaviour.

The question which needs to be raised here is, why? If same-sex couples have been given the right to form a legally recognised marriage and are now allowed to form their civil partnerships on religious premises, which was once only for married spouses, Parliament must be able to amend the legislation to enable civil partners to get divorced. The fact that dissolution is only for civil partners segregates them from married spouses, adultery formed by same-sex couples should be adultery and not be classed as unreasonable behaviour.

1.3

It is apparent that people choose to form a marriage or civil partnership for many different reasons, although there are three which stand out the most. The formation of legal relationships seems to vary with both similarities and differences between them, not forgetting when these relations sadly come to an end. It seemed almost absurd that a civil partnership ends in dissolution because of the word ‘adultery’, with a slight amendment both civil partners and married couples can end in divorce.

There are surprisingly only a few differences between civil partners and married spouses, but why is this, considering the reason for civil partnership being passed. Stephen Cretney explained,

‘the care taken by Parliament to ensure that marriage and civil partnerships were treated in the same way is revealed by the fact that the CPA 2004 amends legislation as diverse as the Explosive Substance Act 1883 and the Law of property Act 1925′.

Parliament has unquestionably given same-sex couples more rights than they previously had, however if this were true, why are there are still alterations to be considered:

  • At present, civil partnership can only be a civil and not religious procedure, and even though the law says it can now take place on religious premises, it is down to the religious organisations discretion. Furthermore, opposite-sex couples can, in relevant circumstances, choose to have either a religious or a civil marriage ceremony.
  • A civil partnership is formed when the second partner signs the relevant document, whereas a civil marriage is formed when the couple exchange spoken words and then the register is signed.
  • Adultery is not a ground for dissolution of a civil partnership (as it is for divorce), nor is consummation a measure for validity (as it is in marriage).

This could be due to the fact that the Civil Partnership Act 2004 carefully avoids basing civil partnership on a sexual relationship. Baroness Scotland said,

‘There is no provision for non-consummation in the Civil Partnership Bill. We do not look at the nature of the sexual relationship; it is totally different in nature.’

This may signify that there was and still is a reluctance to accept homosexual relationships at full value. Non-consummation cannot invalidate a civil partnership and adultery is not a ground for dissolution, this is because the law regards the marital relationship as essentially a sexual one, unlike civil partnerships. The possibility of a non-sexual civil partnership could question the legality on forming a civil partnership with blood relatives.

Weighing up the law on marriage and civil partnership shows that there are differences which prove civil partnerships have not achieved the same privileges as a marriage. Looking at the listed rights and responsibilities of a civil partnership should help to continue in the search for an answer.

Chapter 2- Respective rights and responsibilities

2.1

This chapter will explore the rights which same-sex couple’s gain from entering a civil partnership and compare them to their rights before the Civil Partnership Act 2004 became part of the UK legislation. In addition, the distinctions found within the first chapter will aid in the investigation to whether these changes and differences could be considered right or wrong towards homosexual couples.

In Secretary of State for Work and Pensions v M, it was noted that civil partnerships have ‘virtually identical legal consequences to marriage’. Lord Filkin, the Minister of Constitutional Affairs said that marriage was:

‘A template for the rights and responsibilities that go with the civil partnership.’

If this is the case, assessing their rights and responsibilities should show similar results.

2.2

The Civil Partnership Act has theoretically given civil partners important legal rights and responsibilities of a civil marriage. Section 254 and Schedule 24 CPA 2004 places civil partners in the same positions as spouses. There are differences in the language used, however no real difference in the rights made available.

Civil partners have the same rights and responsibilities as a married spouse in many areas including: tax, social security, parental responsibility for their partner’s child, rights for immigration and nationality purposes, the right to receive bereavement benefit if their partner dies, and domestic violence protection:

Like traditional marriage, those that are involved in a civil partnership are exempt from being required to testify in court against one another.

These rights and responsibilities have been given to same-sex couples as a way to maintain equality, additionally; it has been reluctant to launch same-sex marriage because of the religious views of holy matrimony.

With this said, there is a definite improvement towards making it better towards civil partners. Prior the Civil Partnership Act, homosexual couples had no rights in the UK at all, and their relationship was once deemed offensive. The English law identified anal intercourse and bestiality as offences punishable by hanging as a result of the Buggery Act 1533. It seems rather callous to compare the two.

However, many changes and enforcements have been made in order to actually enable the rights and responsibility of civil partnerships to match those of a married couple. Section 61 of the Offences against the Person Act 1861 removed the death penalty for homosexuality. Nevertheless, only male homosexual acts still remained illegal and were punishable by imprisonment and section 11 of the Criminal Law Amendment Act 1885 extended the laws regarding homosexuality to include any kind of sexual activity between males. The decriminalisation of homosexual acts was established in 1967.

In spite of not having any rights, the Adoption and Children Act 2002 allowed same-sex couples to adopt children before the Civil Partnership Act 2004 was passed; formally a joint application for an adoption order could only be made by a married couple. Nevertheless, in 2002 it was clear that adoption applications could be made by an unmarried couple. This is defined as two people (no matter the sex) living together as partners in a long-term family relationship. Now, with consent from the Civil Partnership Act, civil partners may choose to legally adopt their partner’s child.

Although this is now possible, same sex couples formally recognised relationships with their partners child was not recognised in law or socially to the same degree as a married spouse before 2004.

These rights have helped civil partners to a great degree. Their sexual orientation is no longer such a concern. Until now, there were several cases which had to determine whether having gay or lesbian relationships would affect the residence of the child. In Re G, Lord Thorpe had said that judicial attitudes towards homosexuality were very different today than it was twenty years ago.

Author J Herring states:

‘Lord Thorpe indicated that there should be no difference between a case involving a women who had received assisted reproductive treatment with a partner who was male from where she was female’.

This indicates that today’s judicial system is up to date with society and the changes that have occurred over the years. It argues why there should be a problem with same-sex couples wanting to receive reproductive treatment. For those with religious views, same-sex couples cannot reproduce and this could be seen as an act against nature. The Human Rights Act states ‘the right to privacy and respect for family life’.Therefore, if same-sex couples were prohibited from accepting such treatment it would be a breach of their human rights

Prior to the civil partnership coming into force, homosexual couples who lived together had the same legal rights as any heterosexual couples which had chosen to cohabitate, (which amounted to nothing in actual fact).When a relationship had broken down or a partner had died, they had no right to automatically claim a share of the home they lived in together if the deeds did not specify the partners’ name.

Civil partners were not given automatic parental rights over children. This meant they did not have a say on medical treatment or schools. The next-of-kin rights were not acknowledged at the time and no matter how long they had lived together financial support could not be claimed. Inheritance tax would also have to be paid by the partner on any home that was jointly owned.

However, some discriminatory legislations have been repealed, such as section 28 of the Local Government Act,which made the promotion of homosexuality illegal (S28a), and the 2008 Human Fertilisation and Embryology Act now recognises same-sex couples as legal parents of children conceived through the use of donated sperm, eggs or embryos.

There is evident progress being made in this area, but still does not make up for civil partners being denied the right to call themselves ‘married’ as well as divorce . As they are now able to enter into civil partnerships on religious premises by law, which was one of the main issues and debates to begin with, this should have some sort of impact on changing things

2.3

Until now, this dissertation has generally focused on why same-sex couples cannot marry and how discriminatory the UK legislation is being. However, a question of why civil partnerships exist at all, maybe an interesting thought. A civil partnership was not just intended to propose inferiority, but rather difference. Homosexual couples should have the confidence in themselves and their relationships to develop their own institutions and traditions, which will ultimately grow to become as respected and established and heterosexual’s relationship. Why should same-sex couples fight for their rights to have a legally recognised relationship, only to be given marriage? Same-sex couples should be proud to have their own identity and traditions, as it is something they have had to fight for over many years.

In many ways, Civil Partnerships are already ‘marriage’, in that they give many of the same rights, but aren’t allowed to be the equivalent of marriage since that’s reserved for straights. If anything, allowing heterosexual couples to form civil partnerships and homosexual couples to marry could either (1) strengthen both, since they would each have an equal validity, allowing either to choose based on what was important to them or, (2) make the significance of marriage become minimal. Heterosexual couples choose to join in civil partnerships to avoid marriage and divorce costs.

Marriage and civil partnerships represent the exact same commitments, but with different names. By attempting to strip heterosexual institutions of their identity and tradition, (by granting homosexual couple


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