Same Sex Marrage and the Effect on Civil Partnerships

Marriage (Same Sex Couples) Act 2013

Has the enactment of the Marriage (Same Sex Couples) Act 2013 impacted on the validity and social acceptance of Civil Partnerships and Cohabitation in the United Kingdom?

What is the Marriage (Same Sex Couples) Act 2013?

The MSSC Act 2013^[1] enacted on 17^th July 2013, enables same sex marriages in the United Kingdom and Wales. This Act serves the purpose of giving the very much needed green light to same sex couples who have been waiting to marry for a number of years. The Act came into force on 29^th March 2014.

The Same Sex Marriage bill was labelled ‘historic’ when granted royal assent in July 2013. The general view on the bill was of a positive nature and can be demonstrated by the following statement made by culture secretary Maria Miller where it was identified that the Act “is a wonderful achievement… making marriage available to all couples demonstrates our society’s respect for all individuals regardless of their sexuality^[2]“.

The MSSC Act extends the term ‘Marriage’ to include that the marriage of same sex couples is lawful^[3], and alters the original restrictions of Marriage under the Marriage Act 1949 which states that a marriage will be void if the parties are not man and woman^[4].

However a same sex marriage must still meet the requirements of a valid marriage primarily set out under the Matrimonial Causes Act 1973^[5] which are; that the parties are not within the prohibited degrees of relationship, principally meaning parties who are related^[6]. Additionally both parties must be over the age of sixteen^[7], also that at the time of the marriage either party is not already lawfully married or in a civil partnership^[8], and that both parties are domiciled in England and Wales at the time of the marriage^[9].

Strengths and Weaknesses of the MSSC Act 2013

Since the Act came into force, there have been a number of controversial opinions, however the vast majority of views have been of a positive nature from a number of different individuals including the current Prime Minister David Cameron, who stated that same sex marriage was one of his proudest achievements in 2014, and also made the powerful statement that [same sex marriage] “also sends a powerful message to young people growing up who are uncertain about their sexuality… it clearly says ‘you are equal’ whether straight or gay”^[10].

This statement clearly demonstrates the positive effect the Act has had on the United Kingdom and gay rights in general, proving that discrimination will not be tolerated.

Strengths of the MSSC Act 2013

The most prominent strength of this Act is the enablement of same sex couples to marry. However it does not stop there, this Act also permits persons who have entered into a Civil Partnership prior to the Act to convert into a same sex marriage^[11], provided the correct regulations are adhered to^[12] as with heterosexual marriage.

Additionally once married, same sex couples have the same legal rights as heterosexual married couples^[13], however this is debated somewhat. The Act has also extended the original wording of the Marriage Act 1949 to enable equality for same sex couples.

A further advantage of the Act is the equality it brings for same sex couples who have been fighting for the same rights for decades. Furthermore there has been a positive influence on the way individuals are now viewing same sex relationships by more people fighting for equality amongst the lesbian, gay, bisexual and transsexual community^[14].

Weaknesses of the MSSC Act 2013

The main weakness of the MSSC Act that same sex couples face following marriage is that of survivor benefits under occupational pension schemes^[15]. It has been specified that the Secretary of State must arrange a review of these matters which demonstrate a vast inequality in the law^[16].

The only amendment that has been made to the State Pension Credit Act was to change the words “married or unmarried couple” with the word “couple”^[17] and for the purposes of same sex partners has been given the definition of “two people of the same sex who are civil partners of each other and are members of the same household^[18]“. This demonstrates an inequality as the definition has not been amended to include married same sex couples which will need to be reviewed.

The law on occupational pension schemes at present is that same sex married couples will have the same entitlements as civil partners Under the CPA 2004^[19] which came into force on 5 December 2005^[20]. The law states that if a same sex partner dies, the surviving spouse or civil partner will be entitled to survivor benefits since 5 December 2005. This has not yet been extended to include same sex married couples to have the same rights as heterosexual married couples^[21].

Another distinct disadvantage of the Act is the lack of equality in where a same sex couple can marry. The Act enables same sex couples to marry in civil ceremonies however does not hold the entire right to marry in a church or religious institute. There are protections under the Act that enable religious organisations to opt out if they do not wish to marry same sex couples^[22] or opt in if they do wish to do so^[23][24].

This issue is one of a controversial nature and has been open to debate on whether the churches and other religious institutes will ever accept same sex marriage. However this has paved the way for discrimination claims in particular the first Church of England vicar who took a bishop to an employment tribunal after a job offer was revoked when the bishop refused to grant him the necessary licence^[25].

However, this case was dismissed and the courts ruled that Pemberton had not been discriminated against and no laws under the Equality Act^[26] had been breached, despite the bishop expressing to the tribunal that same sex marriage was against the church’s beliefs, which in some circumstances could constitute discrimination and a valid reason as to why a licence was not granted.

The social acceptance of civil partnerships today

A civil partnership is exclusive for same sex couples, and came into force in the United Kingdom on 5^th December 2005. The rights are not dissimilar to that of heterosexual married couples in regards to matters such as life assurance, child maintenance, next of kin rights and so on.

However civil partnerships can only be undertaken by a civil ceremony and cannot request to marry in a church or other religious institute^[27].

Once a same sex couple has entered into a civil partnership, they are now enabled to convert their partnership into a same sex marriage if they wish to do so under the Act^[28]. The process is quite straightforward and for civil partners who formed their partnerships before 29^th March 2014 will receive a £45 fee reduction, which makes the conversion free. There is also an option to hold a further ceremony to allow family and friends to attend^[29].

There are a few differences between civil partnerships and same sex marriage that need to be looked at to determine whether civil partnerships are still socially accepted.

The most distinct difference between a marriage and a civil partnership is that when a same sex couple enters into a marriage, the couple can choose between a civil or religious ceremony and the marriage is solemnized by saying a prescribed form of words, which are known as vows. However civil partnerships are an entirely civil event, and are registered by signing the civil partnership documentation, no vows are to be spoken.

Another difference falls in the annulment of a marriage or civil partnership, which can be construed as a discriminatory factor. Under the CPA there are four factors to the breakdown of a marriage^[30], however it does not include adultery which is contained as a factor for heterosexual married couples^[31]. The reason this factor is not contained within civil partnerships or same sex marriages is that a same sex couple cannot commit adultery as the definition of adultery in English Law is ‘sexual intercourse between a man or woman and a person other than the offender’s spouse^[32].

Therefore in respect of the above differences between civil partnerships and marriage, it would seem that now same sex marriage have been declared legal, there will be more same sex couples opting to marry instead of becoming civil partners in order to obtain more equal rights and privileges as heterosexual married couples. However in order to make a clear analysis of this, the statistics will need to be looked at in detail.

Statistics of Civil Partnerships in relation to same sex marriage

In order to ascertain whether there has been a rise or decline in civil partnerships entered into within the United Kingdom since the enactment of same sex marriage, the statistics must be looked at.

In the year of 2013 the number of civil partnerships formed in the United Kingdom stood at 6,276. This shows a decrease of 11% since 2012 with the average number of civil partnerships being dissolved standing at 974, an increase of 20% since 2012^[33].

Interestingly, when looked at the national statistics for the year of 2014, following the introduction of same sex marriages, the number of civil partnerships entered into has fallen by a massive 70% to 1,683 in 2014^[34].

This dramatic drop in civil partnerships demonstrates how much of an impact same sex marriage has had on the validity and social acceptance of civil partnerships to the present day, due to the fact that less same sex couples are choosing to form a civil partnership.

Additionally when looking at the latest statistics on how many same sex marriages have been entered into, it is clear that the Act has had a positive impact, this can be demonstrated by the number of same sex marriages entered into between the months of 29 March to 30 June 2014, a total of 1,409 marriages were formed^[35]. This is a considerable increase on the number of civil partnerships entered into throughout the entire year of 2014, and can establish that more same sex couples are choosing to form a same sex marriage rather than a civil partnership.

Cohabitation & civil partnerships statistics, has there been a rise in either or a decrease?

Civil partnerships have experienced a dramatic drop over the past year as a result of the same sex marriage Act. However cohabitation is still being shown as an affected method of living and can be shown as an easier and somewhat cheaper alternative to marriage, however the rights of cohabitees vary greatly in comparison to same sex marriages. In 2012 the number of same sex cohabitation in the UK stood at 69,000, which was an increase of 345% since 1996^[36].

There has been a statistical analysis of same sex cohabiting families within the United Kingdom which has increased slightly from 2014 to 2015 however has not been a significant change, just a 0.5% increase^[37].

Therefore these statistics can demonstrate there are a number of cohabiting couples and families who have yet to marry, however further statistical analysis will need to be undertaken to understand why and if cohabitation will ever be on par with marriage and civil partnerships.

Conclusion and findings

In summary, it would seem the enactment of same sex marriages within the United Kingdom has had a drastic impact on the view of civil partnerships and cohabitation significantly.

The Act has also called for a reform in the way same sex couples rights are affected, particularly with regards to the survivors benefit from occupational pension schemes which has been highlighted for reform.

The statistics of civil partnerships formed since same sex marriage became lawful indicates how more same sex couples are choosing against civil partnerships. Additionally cohabitation has not increased greatly which could possibly demonstrate that more individuals are choosing marriage to acquire the same rights as heterosexual married couples.

Therefore it would seem likely that the Act has enhanced life for same sex couples in a positive way, also the enablement of same sex couples who have already entered into civil partnerships to convert into a same sex marriage demonstrates how civil partnerships could be decreasing in popularity and may one day, be phased out.

Footnotes

^[1] The Marriage (Same Sex Couples) Act 2013 c.30

^[2] The Huffington Post UK, Ned Simons 17^th July 2013 ‘Gay Marriage is Now Legal in England and Wales After ‘Historic’ Bill Gets Royal Assent’ Click here to read the full article st November 2015>

^[3] Marriage (Same Sex Couples) Act 2013 s.1(1)

^[4] Marriage Act 1949 s.1(1)

^[5] Matrimonial Causes Act 1973 c.18

^[6] Matrimonial Causes Act 1973 s.11(a)(i)

^[7] Matrimonial Causes Act 1973 s.11(a)(ii)

^[8] Matrimonial Causes Act 1973 s.11(b)

^[9] Matrimonial Causes Act 1973 s.11(d)

^[10] Pink News, Current Affairs, Nick Duffy 10^th January 2015 Click here to read the full article st November 2015>

^[11] Marriage (Same Sex Couples) Act 2013, s.9(1)

^[12] Marriage (Same Sex Couples) Act 2013, s.9(4)

^[13] Marriage (Same Sex Couples) Act 2013, s.11(1)

^[14] Pink News ‘Tim Farron: Fighting for LGBT rights is top of my agenda’ 19^th July 2015 by Joseph McCormick Click here to read the full article nd November 2015>

^[15] Marriage (Same Sex Couples) Act 2013, s.16

^[16] Marriage (Same Sex Couples) Act 2013, s.16(1)

^[17] State Pension Credit Act 2002, s.5

^[18] State Pension Credit Act 2002, s.17 as amended by the Civil Partnership Act 2004, Sch 24, Para 142

^[19] Civil Partnership Act 2004

^[20] Civil Partnership Act 2004, s.256

^[21] Marriage (Same Sex Couples) Act 2013, Explanatory Notes, Commentary on Sections and Schedules, Schedule 4 Part 6

^[22] Marriage (Same Sex Couples) Act 2013, s.2

^[23] Marriage (Same Sex Couples) Act 2013, s.4

^[24] Marriage (Same Sex Couples) Act 2013, s.5

^[25] BBC News, ‘Will the Church ever accept same-sex marriage’ Caroline Wyatt BBC News, 15 June 2015 Click here to read the full article

^[26] Equality Act 2010

^[27] BBC News ‘Q&A Gay Marriage’ 4 June 2013 UK Politics Click here to read the full article

^[28] Marriage (Same Sex Couples) Act 2013, s. 9

^[29] The Guardian ‘Same sex civil partnerships can be turned into marriages’ By Owen Bowcott 10^th December 2014 Click here to read the full article

^[30] Civil Partnership Act 2004, s.117(3)

^[31] Matrimonial Causes Act 1973, s.2(1)(a)

^[32] Black’s Law Dictionary (7^th ed. 1999) 52

^[33] Click here to read the full article

^[34] Click here to read the full article

^[35] Click here to read the full article

^[36] Click here to read the full article th November 2015>

^[37] Click here to read the full article th November 2015>