Equal Marriage

The UK Parliament passed the Marriage (Same Sex Couples) Act 2013 on 17 July 2013. This allows same-sex couples to marry in England and Wales and certain couples who are civil partners to “convert” their civil partnership into a marriage.

The introduction of equal marriage ends some but not all the discrimination against same-sex couples, which came about by having a separate institution of civil partnership.

Civil partnership remains as an alternative option for same-sex couples.

This page has information about:

Abolished Discrimination

  • While civil partnership was not abolished, there is generally just be “marriage” and not a separate institution or label. So same-sex couples are able to refer to themselves as married and to each other as husbands, wives and spouses etc.
  • For those religious groups who want to do so, marriage for same-sex couples is possible as a religious wedding.

Remaining Discrimination

  • Same-sex couples who are already in a civil partnership are not be able to marry at all if they registered their civil partnership in Northern Ireland, Scotland or abroad. This provision is probably not compliant with the Human Rights Act and should be challenged.
  • Pensions are still not backdated. By legislating for a new exception to the equal treatment of same-sex married couples the Act in fact creates new discrimination rather than just ignoring existing discrimination. It is also worrying that the relevant paragraph (paragraph 17 of Schedule 4) creates a new category of “opposite-sex marriage” with more rights than same-sex marriage.

Differences between Civil Partnership and Equal Marriage for Same-Sex Couples

  • The name is different.
  • Although you can have a civil partnership registration on religious premises for those religious groups which opt into this, it cannot be part of the service and has to be entirely separate from it. A wedding of a same-sex couple can be as any other wedding very much part of a wedding service.
  • A civil partnership is registered once everyone has signed the document. No vows are required. A wedding of a same-sex couple (as any other wedding) is legal once vows are exchanged and they are an integral part of the legal formation.
  • For a dissolution of civil partnership you cannot rely on “adultery” (but you can use the same facts as “behaviour”); for a divorce of a same-sex couple you can use adultery, but only if it was between two people of the opposite sex.
  • International recognition: Marriage should be recognised in at least all countries which allow same-sex couples to marry, but also some others (e.g. Israel). It may also be recognised in countries which have registered partnership for same-sex couples but not marriage (e.g. Germany), although the legal status is likely to be one of a registered partnership not of a marriage. This is a tricky area and must be checked in each case. The law in each country and the interpretation keeps changing. Civil partnership is not necessarily recognised in countries which allow same-sex couples to marry (e.g. Portugal).
  • You can apply for a marriage of a same-sex couple to be annulled as voidable if the respondent was at the time of the wedding suffering from a “venereal disease”. This is not possible for an annulment of a civil partnership.

Legislative Muddle

There are a number of points where the Marriage (Same Sex Couples) Act 2013 is in a muddle:

  • Only those civil partners who registered their civil partnership in England or Wales can convert it into a marriage. If a couple registered elsewhere, they are barred from getting married to each other. They could of course dissolve their civil partnership, but there is unlikely to be a reason for that if they want to get married to each other. This is likely to be a breach of human rights and should be challenged.
  • EU-law provides where in the EU people can get divorced (see Jurisdiction for Divorce – Brussels II). The Act assumes that under EU law “marriage” is defined as the marriage of an opposite-sex couple only and makes provision for the jurisdiction for the divorce of same-sex marriages to be dealt with separately. This is wrong: EU law leaves it to each member state to define marriage. While this may not have many practical consequences, it assumes that other EU member states do not have to recognise an English same-sex marriage.

FAQs

Can we convert our civil partnership into a marriage?

The Act provides only for those couples who registered in England and Wales to convert their civil partnership into a marriage. This will be possible later in 2014.

If you simply got married (here or abroad), your marriage would arguably be void as you are already in a civil partnership. This is something you may want to challenge in court under the Human Rights Act.

We got married years ago in Canada. What is our status in England?

Until the Act came into force, you were treated as civil partners. Now you are treated as a married couple.

I am a male retired teacher and paid contributions for a widow’s pension in the 1980s, will my husband get a full widower’s pension when I die?

No, not under the Act as it is drawn up. However, this almost certainly contravenes EU equality legislation.

We are living in London, but one of us is from another country. Should we go for marriage or civil partnership?

This is a tricky one and depends very much on your circumstances. For example, France at one stage recognised marriage of same-sex couples if they were both from the country where that was allowed (e.g. between two Dutch men), but it did not recognise UK civil partnership. It did change later after the UK government lobbied for it because some English couples who moved to live in France were facing high inheritance tax bills after one of them died. Portugal has equal marriage but it seems does not recognise civil partnership. If you can predict which other country is involved now and either you may inherit from that country, or have a house there etc. you should take legal advice from lawyers here in England and in that country. You should also go to a specialist to draft your wills.

We are both British but may retire in on the Med in the future, should we marry or become civil partners?

Again, this is a tricky one. If you become civil partners in England or Wales you could later convert that into a marriage (but not the other way round). If your move is some time in the future, it is impossible to predict the legal situation in any particular country at that time. You should get very good and specialist advice before you move and buy any property abroad.

We are already civil partners; do we have to upgrade?

There is no duty to convert your civil partnership into a marriage. You do not have to do anything at all and can just remain civil partners.

For advice on your specific circumstances please contact a solicitor

12 May 2016 by Andrea Woelke