Law and a new order
There has been much debate about gay marriage, which unsurprisingly creates a divide of strong opinions and emotions. Here, I aim to put right some common misconceptions as there are many who believe the change in status of the relationship will create further rights for couples. If we look solely at the rights of couples when separating and within family law and separation – the rights of civil partners are almost the same as those of married couples.
The Civil Partnership Act 2004 effectively mirrors the Matrimonial Causes Act 1973, providing the same financial remedies to civil partners which already existed in relation to married couples, such as the ability to claim maintenance for yourself (as opposed to for your children) if there is a large earning disparity, or have a share of your partner's pension if it is a valuable asset of the relationship. The only difference for separation are the terms used within the court documents: Decree Nisi and Decree Absolute for marriage being Conditional Order and Final Order for dissolution of a civil partnership.
The parties who really lose out financially when relationships fail are primarily those who live together but are not married or civil partners – but that opens another can of worms. People often wonder about their rights with respect to children as well. Again, the Civil Partnership Act amends the Children Act 1989 and Adoption & Children Act 2002, allowing civil partners, as parents, the same rights over the children of the family as married couples. They also have financial remedies available to them for supporting the children, whether through the Child Support Agency or through a court order.
There are therefore, in reality very few differences in terms of legal rights between the two, and more particularly legal rights when it comes to the breakdown of the relationship. The human right to being able to marry, is of course an entirely different matter.
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Among the few legal differences in the breakdown of a relationship, which still baffles many on the basis of morality and indeed common sense, are the grounds for a divorce or dissolution.
When preparing a divorce petition you must show that the marriage has irretrievably broken down and there are five facts to prove this: adultery, unreasonable behaviour, two years' separation and consent of both parties to the divorce, two years' desertion, and five years' separation without consent of both parties.
The same grounds – showing the civil partnership has irretrievably broken down – applies and all, bar one fact are the same for the dissolution of a civil partnership which does not recognise adultery as a reason to end the relationship. Why? The legal definition of adultery is "voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom is a married person". Therefore if a homosexual woman has sex with another woman it is not adultery under that definition as they are of the same sex.
But this in turn raises further questions – what if a bisexual woman entered into a civil partnership and then had an affair with a man? This would pass the test 'between man and a woman' and, if the man was married, or even if the law has changed and the woman had entered into a gay marriage, then this would pass the second test, 'one of which is married'.
I am uncertain of this argument ever having been run; certainly the cost of doing so would far outweigh any benefit, given that you would be able to cite infidelity in a civil partnership within the ground of unreasonable behaviour but many parties who have been cheated on by their loved one feel that they wish to use this ground out of principle. But it is an interesting loophole that exists in our current law, and that will arguably, some may say, only be exacerbated by marriage being recognised universally.
The other difference is that of nullity. There are many ways to get a marriage annulled and most of these apply also to civil partnerships – save for lack of consummation. The reason again seems to be the definition used – 'to make (a marriage) legal by sexual intercourse'. Will this have to change with gay marriages as this would now fall within the word 'marriage'? Although again, the definition of marriage is written as the 'state or relationship of being husband and wife', so this is a moot point.
Will there have to be two definitions of marriage – and, if so, some may say the point for many of having gay marriage is thus diminished as there would be no equality.
Perhaps the difficulty there would not be the marriage part but the act of having sex and how it is defined. With these considerations what will the future hold for the law? Will the Civil Partnership or Matrimonial Causes Acts have to change or will a third set of laws governing relationship breakdown emerge – The Marriage (Same Sex Couples) Act? Or, do we simply merge them all, create one Act and re-write the English language (or at least a couple of terms).
We shall all wait with bated breath.
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