Saturday, 4 February 2012

Same sex marriage is a legal can of worms

The Prime Minister intends to legalise same sex marriage and is launching a consultation in March to ask how.

But very little has so far been written about by what means it could actually be done.

Marriage is a virtually universal human institution practised by virtually all societies and cultures.

This definition of marriage has long been recognised in British law and was originally based on biblical teaching (Genesis 2:24).

Marriage was then formally defined in a famous court case late in the 19th century. Lord Penzance, in Hyde v Hyde in 1866, called it:

'… the voluntary union for life of one man and one woman to the exclusion of all others.'

So there are, in other words, four conditions for a marriage:

•it must be voluntary
•it must be for life, ie the parties’ intention at the time of the marriage
•the union must be heterosexual
•it must be monogamous


In addition, the parties must be of marriageable age.

The formalities of marriage are predominantly governed by the Marriage Act 1949, the Marriage Act 1983 and the Marriage (Registrar General's Licence) Act 1970.

By contrast the Civil Partnership Act 2004 (CPA 2004) defines civil partnership as a formal legal relationship between two people of the same sex. It gives same-sex couples virtually all of the rights and privileges of married couples.

The President of the Family Division has even described civil partnerships as conferring ‘the benefits of marriage in all but name’.

There are some differences in English law, between a marriage and a civil partnership, but these differences focus not on the rights they confer, but on the genders of the partners, the procedure and place where the partnership is formed, and the roles of consummation and adultery in making and breaking the relationship.

These differences are there because they are different types of relationship. It is not ‘one size fits all’. Currently same-sex couples cannot get married and opposite-sex couples cannot form civil partnerships.

So how might same sex marriage actually be legalized?

There are essentially three options.

1.Upgrade all civil partnerships to marriages
2.Open both marriage and civil partnerships to both gay and straight couples
3.Rename civil partnerships as same sex marriages

Option 1 would involve upgrading the Marriage Act and scrapping the Civil Partnership Act. It would also involve rewriting a lot of legislation (because of the number of other Acts of Parliament which refer either to marriage or civil partnership).

But it would also require some redefinition of marriage. At present a marriage can be declared void if it is not ‘consummated’. And if necessary, whether consummation has been achieved needs to be determined by medical examination. But how is a lesbian or gay marriage to be consummated? Interesting question!

In the same way adultery is grounds for divorce, but the legal definition of adultery is based on (how does one say this politely?) a certain kind of genital contact. So how exactly do lesbian or gay couples commit adultery? Or are the consummation and adultery definitions just to be dropped?

But the biggest problem with Option 1 is that many gay and lesbian couples might not want their relationships upgraded and may protest vehemently should civil partnerships be scrapped… which brings us to Option 2.

Option 2, that favoured by gay activist Peter Tatchell, is called the ‘Equal Love’ Option. This option is based on the assumption that ‘everyone should be equal before the law’ and would require opening up both civil partnership and marriage ‘to all couples, gay and heterosexual, without discrimination’. This would enable homosexual couples to stay in civil partnerships if they so chose or upgrade to marriage. Similarly heterosexual couples might opt for civil partnerships rather than marriage.

But, according to an assessment done for Stonewall by a former civil servant, the cost of implementing this option would be around £5 billion. The figure relates to a theoretical increase in straight couples taking up the opportunity of civil partnerships, with knock-on implications to their entitlement to pension and tax benefits.

One would have thought this is not something the government would be keen to contemplate at a time of economic recession in order to appease a small minority interest. Also it still leaves us with the definition problems described above around consummation and adultery.

Option 3 is the simplest of all administratively. It simply involves renaming civil partnerships as same sex marriages. So, essentially, the Marriage Act would be left as is, and a ‘find and replace’ done on the term ‘civil partnership’ in the Civil Partnership Act. Cheap and simple perhaps, but the problem is that it is simply a semantic trick that will not satisfy those who want ‘real equality’. Gay activists do not want ‘same sex marriage’, they want ‘marriage’.

So legalising same sex marriage is not as simple as one might think. Given that civil partnerships are already ‘marriage in all but name’, is it really worth the hassle and the huge political fight that will be necessary to achieve it?

Another reason I would have thought for leaving the whole thing well alone.

12 comments:

  1. This comment has been removed by the author.

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  2. You missed "give everyone in a civil partnership the option to 'upgrade' to marriage".

    You also display amazing ignorance about both sex (of all flavours) and English divorce law. Divorce is granted when there is "irretreivable breakdown of marrage". Adultery, being just on the the possible grounds, does NOT specifically require that an unauthorised penis must enter an illicit vagina.
    (spelling corrected)

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  3. Yes giving everyone in a civil partnership the option of upgrading to marriage is arguably a fourth option - effectively a halfway option between 1 and 2 and sharing some of the problems of each - but the main objection is that it would be 'unequal' leaving gay and lesbian couples with two options and heterosexual couples with one - hence Tatchell's 'equal love' argument.

    There are actually five grounds for divorce under English law of which 'irretrievable breakdown' is one and 'adultery' is another ('desertion' and 'separation' for 2 or 5 years constitute the other three) But the problems of legally defining consummation and adultery remain and underline the point that same sex partnerships and marriages are two different kinds of relationship.

    As to ignorance about 'sex' - I don't think so. My point is that adultery and consummation are legally defined as a certain kind of sex.

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  4. This is an enlightening article. It makes total sense. Basically, the requirement for consummation would have to be removed from marriage, and also adultery as a grounds for divorce. So you change marriage completely in nature and what we have are a series of non-specific relationships which may or may not be exclusive, and the sexual content of which is not to be questioned be anybody. I think this would appeal to many people's anarchic tendencies, but would be disastrous for society as a whole. One of the most important things I want to teach my children is that we need to know where we stand in relation to other people's family relationships. It's like when you meet someone and you can't tell what gender they are: confusing and a bit wierd.

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  5. I worked out a long while ago that the concept logically undermines the natural law definition of marriage as involving the basic good of sex between spouses. This is what is behind Robert P. George's work on the definition of marriage in the United States. A protestant account would be very similar. indeed, it would add what a natural law argument
    cannot give, which is that the bridal imagery of Christ and the church necessarily means that marriage is monogamous, as Christ can have only one body. this means that Christians who accept SSM cannot have a Biblically-based doctrine of the church.

    Basically, inventing a legal concept of same-sex marriage destroys the natural law and Christian idea of what sexual act is basic to marriage, and therefore ends up *de-defining marriage completely*.
    It will mean effectively that sexless marriages between heterosexuals will be counted as valid marriages, and will make it easier for people - especially men - to get away with porn addiction within marriage as a reason for not having sex. This would be a factor in some couples being unable to conceive children. Likewise, it would give carte blanche for men who marry women but who consider themselves transsexuals,
    and demand 'lesbian' relating from their wives (a common problem
    in marriages where the husband considers himself a transsexual).
    Quite often, wives who refuse to play along with this end up getting abused by their husbands. The same scenario, again, will pop up whereby husbands who only want 'anal sex' from marriage will get their way.

    So-called 'same-sex marriage' is a counterfeit. It opens the
    door to non-monogamy and to perverted sex as normal. It opens the door to heterosexual couples marrying then one partner turning round and saying they don't want normal sex, and getting away with it because marriage has been redefined so that normal sex is implicitly no longer the norm.

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  6. Peter, i always thought your blog was about medical issues from a Christian perspective but I've noticed recently you've been commenting not only on medical issues but also on sociological matters such as this which really has nothing to do with medicine.
    I'm curious though, now you've widened the scope of your blog, as to why you only seem to be interested in the sociological issue of homosexuality when there are far more pressing matters of Christian conscience facing our society today, you have nothing to say about the greed of the execs of RBS for example despite this being in the news for the last few days?

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  7. Thanks Sarah. the description of my blog as above reads as follows - 'This blog deals mainly with matters at the interface of Christianity and Medicine. But I do also diverge into other subjects - especially New Zealand, rugby, economics, developing world, politics and topics of general Christian and/or medical interest'

    I have posted a lot on issues around same sex marriage recently in the lead up to marriage week (this week), general synod (also this week) and the release of the government's consultation.

    Similarly I did a disproportionate number of posts on assisted suicide at the time of the Falconer Commission reporting and on abortion whilst the counselling amendment was being debated in Parliament.

    But in response to your comment my most recent post is on how a breakthrough in the treatment of neglected diseases highlights the scandal of the banking crisis. I hope you like it :-) RBS even gets a mention - but in general terms.

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  8. Good post - for once you've raised some salient legal and economic issues, rather than banging on and on about the same old objections surrounding SSM.

    >> Adultery, being just on the the possible grounds

    Did you mean ONE of the possible grounds? If so, correct.

    >> does NOT specifically require that an unauthorised penis must enter an illicit vagina.

    Yes, it does. That's the leagl definition. There are a load of other definitions, but they aren't legally binding. You cannot cite adultery (as a reason for divorce) if your partner falls in love with someone else, for example, and develops an "emotional attachment" to that person. One cannot legally evaluate "feelings", so the law only recognises physical adultery. That involves a man and a woman having vaginal sex. AFAIK, legally even oral sex does not count - but I'll check that with my lawyer mates. The divorce laws, like the marriage act, are probably antiquated, so while we may consider other forms of physical contact to be adulterous, the law as it stands does not recognise them.

    Anyway, who're we kidding - when heterosexuals commit adultery, it inevitably IS via penetrative vaginal sex. But I wouldn't have thought defining adultery for homosexuals would be all that difficult - presumuably the men would have penetrative anal sex with someone other than their partner. For the women, it could be a more difficult area. Then again, perhaps they will change this criterion for female homosexuals.

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  9. My post was largely addressed to anarchic teapot, by the way (except for the first line).
    Are you a gay man, anarchic?

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  10. "Another reason I would have thought for leaving the whole thing well alone."

    It doesn't matter how difficult it is to change, if it is wrong then a way should be found.

    In this case it is wrong not to give people equality just because their life partner and they happen to have matching genitalia.

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  11. Hi,

    Interesting blog. Legal recognition of same-sex marriage continues to be one of the most socially and legally controversial issues of the day. I would like to tell you that you have given me much knowledge about it. Thanks for everything.

    ReplyDelete
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