Family Law Blog

Same-Sex Marriage

In what can feel like acres of bad news, the recent Australian vote in favour of same-sex marriage equality offered a rainbow-coloured beacon of good cheer to splash across our headlines. The postal vote was non-binding and legislation is needed to create a legal right to same-sex marriage. A bill to change the law was introduced in the Australian Senate shortly after the vote so we can hope that this will become law sooner rather than later, giving same sex couples in Australia similar rights to opposite sex couples, as they do in the UK.
Same-sex marriage in the UK
In the UK, same-sex marriage has been a legal right since the Marriage (Same-Sex Couples) Act 2013 became law. Civil partnership has been available to same-sex couples since 2005 – a kind of halfway house which offered most of the rights and protections to same-sex couples that were available to opposite sex couples who married in either a civil or religious ceremony.
The majority of the provisions came into force on 13th March 2014, but couples must wait 16 days after giving notice of the proposed marriage before actually saying “I do”, so the first marriages took place on 29th March 2014. In one case, the Registrar General did waive the notice requirement because of the failing health of one of the couple.
How is same-sex marriage different from opposite sex marriage?
In terms of the status the relationship acquires following marriage, there is little difference between same-sex and opposite sex marriage. The major practical benefits in areas such as next of kin and inheritance arrangements, tax and pensions all apply regardless of whether it’s a same-sex or opposite sex marriage. The differences, such as they are, relate to the formation and dissolution of the marriage.
Getting married as a same sex couple
Although same-sex couples have the right to be married in law, many of the major religions in England and Wales do not recognise same-sex marriage. The legislation allows individuals and religious organisations to choose not to ‘opt in’ to the legislation and recognise same-sex marriage. The Marriage (Same-Sex Couples) Act 2013 amends the Equality Act 2010 so that those who choose not to opt in aren’t breaking the law.
In practice this means that a same-sex couple may not be able to have a religious marriage ceremony. Although this remains the case as far as the Anglican Church in England and Wales is concerned, in Scotland, the Scottish Episcopal Church has chosen to ‘opt in’ and has already conducted a number of religious marriages for same-sex couples. The first same-sex Anglican Church wedding took place in Edinburgh back in August 2017 . On 10 December 2014 provisions regarding the conversion of civil partnerships into same-sex marriages came into force.
Entering into a civil partnership
As we’ve mentioned in a previous blog, civil partnership is only available to same-sex couples. Opposite sex couples can only formalise their relationship through civil or religious marriage. A civil partnership can be registered in private, while a marriage must be public. When a couple marries, only the names of the fathers of those getting married are included on the certificate. In a civil partnership, the names of both parents are included.
Ending a same-sex marriage
Sadly, there’s no cast iron guarantee that any marriage or civil partnership will endure, whatever the intentions of the couple at the outset. To end a same-sex marriage you must apply for a divorce – and you must have been married for a year before you can do so.
Grounds for divorce are
– Adultery – although only conduct between one party to the marriage and a person of the opposite sex can constitute adultery for the purposes of Matrimonial Causes Act 1973, s 1(2)(a)
– Unreasonable behaviour
– two year’s separation, where both parties consent to the divorce
– 5 years separation with no need for consent
– 4 years’ ‘desertion’.
Dissolving a civil partnership
You have to dissolve a civil partnership rather than apply for a divorce. In many respects, the procedure is the same. However, unlike marriage, adultery is not a ground for dissolution.
The benefits of same sex marriage and civil partnership
While there is little difference in practical terms between same-sex marriage and civil partnership, there is a huge advantage to regularising your relationship one way or the other. As with opposite sex couples who do not marry, the law offers no protection to same-sex couples who choose not to marry or civil partner, however long they have been together. This means that a same-sex partner is not recognised in the intestacy rules, and may find him or herself financially disadvantaged if the relationship breaks down.
Same-sex couples who choose not to marry or civil partner can consider a cohabitation agreement in the same way as opposite sex couples – and should also protect themselves through the use of up to date wills and conscientious attention to the details in paperwork around pensions and insurance.
If you have any questions about same-sex marriage or civil partnership, do get in touch. We are family law specialists and will be happy to help, whether you need a cohabitation agreement or are considering ending your relationship.