#1774 - Civil Partnerships - Family Law

Civil Partnerships

Legal Basis

• Civil Partnership Act 2004

  • Created notion of Civil Partnership

  • Where just over 7000 in 2008, fall of 18% in 2007 – not really surprising b/c backlog of people wanting to get hitched just after the Act

  • What is says is that essentially gets same sex marriage

    • Could have been very short Act - i.e. where in law says “spouse” read “or civil partner”

    • In fact, just went line by line to change it specifically

      • So is hundreds of pages long.

What are the differences between civil partners and marriage?

• When it actually starts

  • A marriage starts on the exchange of promises (the “I dos”)

  • Civil Partnership = signing of register – bit more of objective evidence than marriage

• Cannot include a religious element

  • Civil Partnership can’t have religious bits – can have that afterwards, but can’t be part of the ceremony

  • But marriage can have some religious elements

  • Equality Act 2010 has changed that – if a religious group wishes, it can conduct a religious ceremony as part of that

    • Some Quakers and liberal Jews have said that would like to do this.

• Effect of the Civil Partnership

  • Sec of State for Work and Pensions v M

    • Baroness Hale

      • Civil Partnerships have virtually identical legal consequences to marriage

  • Manthorpe:

    • While the CPA recognises the legal relationship between the couple, it does not recognise legally any relationship between the partner’s children or wider family

• Grounds for the civil partnership being annulled under CPA 2004 s.49

  • These are the same as for marriage EXCEPT the voidable grounds are slightly different in that two of them do not appear in the CPA 2004

    • Lack of consummation is not a ground for avoiding a civil partnership

    • Nor is the presence of a Venereal disease

• Divorce

  • These are again nearly the same grounds as for marriage

    • EXCEPT that “adultery” is not a ground for dissolving the Civil Partnership.

How do we react to the differences?

• Some = minor technical differences, so does not matter

  • Signing of register is irrelevant

  • Voidable grounds only used by conservative religious views, unlikely to apply, still got legal divorce

  • Adultery – just use unreasonable behaviour – just a trivial detail.

• Others = these differences do indicate something of great significance symbolically

  • Shows distaste for same-sex sexual activity

    • Baroness Scotland: can’t define consummation in gay relationships, it is totally different

    • Herring: but can define in criminal law, why can’t we define it here?

      • Are we not making it an element because we don’t approve of it?

  • The name

    • Is this of symbolic significance

    • It can’t have the name of marriage – is it saying that not the same as marriage, or not quite as good?

What are the reasons against gay marriage?

• Gay marriage is not a human right

  • Kitzinger – X and Y went through a valid same sex marriage in Canada, before moving to the UK. They applied for their marriage to be recognised. They were told that they could have a Civil Partnership recognised, but not a marriage. X and Y argued that this was an infringement of the ECHR Art 8 and 14.

    • Sir Mark Potter

      • Article 12

        • Read in a straightforward manner it seems clear that the wording of Art.12 refers to the right to “marry” in the traditional sense

          • (namely as a marriage between a man and a woman) according to the national laws governing the exercise of that right

        • It is true that the Convention and its Protocols must be interpreted in the light of present-day conditions.

          • However, the court cannot, by means of an evolution interpretation,

            • derive from these instruments a right which was not included therein at the outset

  • Herring: This appears odd as the ECHR is not normally interpreted in terms of legislative intention...

• Gay marriage is not a “family” in human rights terms

  • M v Sec State Work and Pensions [2006]:

    • Lord Bingham

      • No doubt Ms M has less money to spend than if she were required to contribute less

        • But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life,

          • nor does it invade the sphere of personal and sexual autonomy which are the essence of private life.

    • Lord Walker

      • I am content to assume that the unit consisting of M,

        • her new partner and (especially when living with them) their children by their former marriages

          • should be regarded as a family for article 8 purposes

            • But the legislation in question only has a tenuous link to family life

    • Baroness Hale (dis)

      • The child support scheme is clearly capable of affecting the enjoyment of the right to respect for the family life of the mother and father and their children.

        • There is no doubt that family life was established between this mother, this father and their children

      • In my view, the difference in the treatment of homosexual and heterosexual relationships by the child support scheme

        • in relation to the family lives of the parents and their children has to be justified if it is not to fall foul of article 14 .

  • Wilkinson v Kitzinger [2006]:

    • Sir Mark Potter:

      • Regarding Art 8,

        • In M, a couple on its own was not considered enough to be a family for Art 8.

          • Only Lord Nicholls said it was in English law, but not in Convention law

          • Lord Walker, with whom Lord Bingham agreed, did not deal with the issue,

            • assuming the relationship and their children (particularly when living together) should be considered a family unit.

          • Baroness Hale, dissented only on the basis that the family unit discriminated against

            • was not the relationship of M and her partner alone, but was one which comprised them and their children

        • In my view, by declining to recognise a same-sex partnership as a marriage in legislation

          • the state cannot be said improperly to intrude on or interfere with the private life of a homosexual couple

          • Art.8 is designed to combat state measures which interfere with the respect to the private sphere

            • (for example by criminalising or condemning consensual sexual conduct between two adults)

      • Art 14:

        • Even if I’m wrong, the discrimination serves a legitimate aim

        • The majority of people regard marriage as an age-old institution, valued and valuable, respectable and respected,

          • encouraging monogamy but also the procreation of children and their development in a family unit

            • in which both maternal and paternal influences are available in respect of their nurture and upbringing.

        • If that is the institution contemplated and safeguarded by Art.12,

          • then to accord a same-sex relationship the title and status of marriage

            • would be to fly in the face of the Convention as well as to fail to recognise physical reality

• Marriage is some sort of special status or right – it gives some benefit to the state if heterosexual couples marry which homosexual marriages cannot provide

  • Same sex can’t have children?

    • Ghaiden v Godin-Mendoza [2004]:

      • Baroness Hale:

        • The capacity to bear or beget children has never been a prerequisite of a valid marriage in English law

        • Similarly, while the presence of children is a relevant factor in deciding whether a relationship is marriage-like

          • it is unlikely to matter whether or not they are the biological children of both parties.

  • Stability?

    • Ghaiden v Godin-Mendoza [2004]:

      • Baroness Hale:

        • Sexual "orientation" defines the sort of person with whom one wishes to have sexual relations.

          • Some people, whether heterosexual or homosexual, may be satisfied with casual or transient relationships.

            • But most human beings eventually want more than that. They want love.

        • And many couples also come to want the stability and...