The differences in Civil Partnership and Same-Sex Marriage
We are delighted to have been invited to share with you some of the blog posts by Family and Children Law solicitor; Melissa Symes. Melissa also specialises in working with LGBT clients. Her contact details can be found below so, please don't hesitate to contact her if there are any legal issues you would like advice on.
Civil Partnerships and Same Sex Marriage – Are they the same thing? Or still different?
This is a question many have asked over the last year, particularly by those who opposed same sex marriage. After all, if gay and lesbian people can already have a civil partnership, why do they need to get married at all?
When the Civil Partnership Act 2004 came into effect, it meant for the first time that those in same sex relationships could finally have their relationships recognised by the state, finally giving both parties (almost) the same right rights and responsibilities as those in civil marriage.
Civil Partnership enabled property rights, social security benefits and exemptions on inheritance act, together with parental responsibility for a partner’s children. It also bought in protection on tenancy rights and most importantly, addressed the long standing issue of next of kin rights in respect of medical care.
In the same way that partnerships were recognised at law, mechanisms were put in place, with the somewhat clinically sounding “dissolution of a partnership”. Petitions for dissolutions for Civil Partnerships could only be started at specific courts, namely the Principal Registry of the Family Division in London and county courts in Birmingham, Brighton, Bristol, Cardiff, Chester, Exeter, Leeds, Manchester and Newcastle.
The government at the time didn’t include adultery as a reason for the relationship breaking down; presumably because they didn’t think it would happen. This completely disregarded those who identified as bisexual, or those who chose not to label themselves as gay or lesbian, all of whom could enter a Civil Partnership. The only recourse for the “wronged” partner was to cite unreasonable behaviour as the reason for the irretrievable breakdown of the relationship.
Civil partnership ceremonies couldn’t include religious readings, music or symbols and could not be carried out in religious venues. There were LGBT members of many faiths and beliefs who had no choice but to use either a traditional registry office or pay private venues such as hotels to conduct ceremonies.
Finally, Civil Partnerships did not give the same pension rights to surviving spouses as with civil marriages. For married heterosexual couples, the surviving partner would get a pension based on the number of years their spouse contributed to a pension fund which could be a significant amount of time and money.
Same sex couples, regardless of their late partner’s contributions, were only entitled to contributions made back to 1988 for public sector schemes or as late as December 2005 for private sector schemes. Many considered this as something far short of equality.
Campaigners felt, with perhaps some justification, that Civil Partnerships were a form of sexual apartheid, that by their nature Civil Partnerships were still unequal. Earnest campaigning began, which was met with an equally vocal lobby from those who opposed equal marriage on religious grounds.
On 12 March 2012, the Coalition government announced a formal consultation on equal civil marriage in England and Wales. The initial proposals were to enable same-sex couples to have a civil marriage, but still restricted to civil ceremonies in registry offices or hotels.
The government didn’t want to include the possibility of religious marriages, which would only remain legally possible between men and women. The government also proposed a mechanism to allow couples in civil partnerships to convert to same sex marriages. Finally, the government proposed allowing people undergoing gender reassignment to be granted gender recognition certificates without requiring them to divorce first.
The bill was eventually passed, but with quite a few changes from the original proposals. Many progressive faiths, such as Quakers, free churches and liberal and reform Judaism were the first to publicly support equal marriage and from 29 March 2014, the first same sex marriages will take place. Those with religious beliefs can now subject to conditions, get married in religious ceremonies, with the clear exception of the Church of England.
Moving full circle, adultery is now included as one of the facts for proving a divorce within a same sex marriage, albeit with the remaining exception being a quaint notion dating back to the 1930’s that adultery can only happen between a man and a woman. Unreasonable behaviour remains the only fact that can be used for same sex infidelity.
Unfortunately, there are still two key areas equality has not been achieved for all under the Marriage (same sex couples) Act. A bill currently proceeding through Parliament will give a surviving spouse in a same-sex marriage the same pension rights as a surviving civil partner, but crucially not the same rights as an opposite sex surviving spouse.
The Government attempted, somewhat awkwardly to justify this position in its paper ‘Equal Marriage – the Government’s Response’, published in December 2012. The government felt that granting fully retrospective spouses’ pensions to same-sex married couples ‘would entail an unforeseen retrospective cost to schemes in a challenging economic climate when schemes are already under significant pressure’. Such a statement could be considered as indirect discrimination under the Equality Act 2010.
The Government subsequently amended the Bill at Third Reading to require a review of the differences in survivor benefits in occupational pension schemes between opposite sex couples and same-sex couples in legal relationships. This review will look at the effect of eliminating differences in treatment because of sexual orientation and a report of the review will be published by 1 July 2014. I'll publish a blog looking at that review in due course.
I’ll also discuss the Spousal Veto in a further blog, because it’s quite complicated and has massive implications for those who are trans.
Melissa works for and can be contacted, for legal issues at:
Allan Rutherford Solicitors
3 Woolgate Court
St Benedicts Street, Norwich,
Norfolk, NR2 4AP
T: 01603 724342 | F: 01603 621722
The team at Pink Wedding Venues would like to thank Melissa for allowing us to share her article. Melissa's original blog, along with other interesting articles, can be found HERE!