I Do, Do You?

David Cameron last week spoke out; “It’s a crime”, he said, and “it should be a crime.” “We need to change the culture and say loudly and clearly it is unacceptable.” He was talking about criminalisation of forced marriage, but this could easily be the view of a Wilson-era Briton objecting to the government’s open social liberalism. It has been half a decade since the legalisation of divorce, homosexuality and abortion, yet the rights of homosexual couples remains on the agenda.

The media has been ablaze with discussions over same sex marriage, with harsh words from the Church of England, and others declaring that the lack of a right to same sex marriage is a breach of human rights.

So does the lack of same sex marriage encroach on our rights? Article 12 of the European Convention of Human Rights, provides a right to ‘marry and establish a family’, so far only available to couples of the opposite gender. This was confirmed in Gas & Dubois v France (decision no: 25951/07, European Court of Human Rights, March 2012). The case concerned two women’s right to adopt, but the judgement, which guides UK law, stated that the lack of availability of same sex marriage did not contravene the couple’s human rights, as long as some other legal avenue, such as a civil partnership, provided them with the same ‘social, personal and legal’ rights as wedlock.

Since the introduction of the Civil Partnership Act in 2004, same sex couples have been able to formalise their union through a civil partnership, but the consultation process is underway to consider whether to go a step further and allow same sex marriages. Critics of the proposal will argue that there is no practical difference, and that the marriage-civil partnership distinction is minimal. But many homosexual couples feel slighted by the offering of a ‘second tier’ union, and the reality is that significant disparities exist.

At first glance civil partnerships share many of the same characteristics as marriage. Yet, upon examination, some differences emerge. When it comes to divorce, a couple must rely on a list of legally outlined ‘facts’ in order to file a petition. These include a spouse’s ‘unreasonable behaviour’, having lived apart for a certain period of time, and adultery. These are mirrored in the dissolution of civil partnerships, but the ‘adultery’ fact is not included. Whilst we can muse on the reasons for this, it is difficult not to see the omission as discriminatory. Was it because Parliament baulked at the idea of redefining adultery to include homosexual acts, or was it due to a belief that same sex couples do not place as high a value on a devoted relationship as married couples?

Another important question to consider is if, eight years ago, the newly created law of civil partnership was deemed appropriate, then why has the same sex marriage debate reappeared now? The Civil Partnership Act 2004 was extensive, with more than 200 sections; a result of a considerable amount of government time and money. It seems a waste of precious Parliamentary resources to revisit the Act so soon – why was same sex marriage not created in the first place?

Allowing homosexuals couples to validate their relationships in any manner was controversial. Some will argue that the civil partnership created an opportunity for homosexual couples to distinguish their unions from religion-heavy church marriages. However, sceptics explicate that all the effort in creating the Civil Partnership Act was just an initial stage, so that when the topic of same sex marriage was breached in the future, the reaction from the Church would be lessened. It is interesting that this second stage has come around so soon.

Despite contention the first time around, the Church of England remains staunchly against the progression from civil partnership, which it has stated will ‘permanently diminish’ the significance of marriage. Ironic, considering the institution was created to legalise divorce for a monarch famous for his respect of matrimony. If the Church is relying on scripture to back up its argument, then in the same vein, the biblical transgression of eating pork and prawns should also be illegal. Alternatively, using logic, should paedophiles and murderers be permitted to marry, whilst same sex couples cannot? Civil ceremonies account for 68 per cent of marriages in the UK, and it has long been possible to marry outside of the Church, in an entirely secular service, so it seems absurd that the Church of England is still attempting to assert authority over government decisions.

With an increasingly multicultural, secular and diverse society in the UK, and opinion polls evidencing that more and more people are in favour of same sex marriage, it will be interesting to see the results of the Government’s proposal. Will it be a step too far, too soon? Or has the time for equal rights arrived?

By Judy Benmayer of HighStreetLawyer.com