From Civil Partnerships to Same-Sex Marriage

Interdisciplinary Reflections

Nicola Barker, Daniel Monk, Nicola Barker, Daniel Monk

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317632047
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013 are important legal, social and historical landmarks, rich in symbolic, material and cultural meanings. While fiercely opposed by many, within mainstream narratives they are often represented as a victory in a legal reform process that commenced with the decriminalisation of homosexuality. Yet, at the same time, for others they represent a problematic and ambivalent political engagement with the institution of marriage. Consequently, understood or labelled as 'revolutionary', 'progressive' and 'conservative', these legal reforms provide a space for thinking about issues that arguably affect everyone, regardless of sexual orientation or relationship status.

This edited collection brings together scholars and commentators from a range of backgrounds, generations and disciplines to reflect on the first ten years of civil partnerships and the introduction of same-sex marriage. Rather than rehearsing the arguments 'for' and 'against' relationship recognition, the essays ask original questions, draw on a variety of methods and collectively provide a detailed and reflective 'snap shot' of a critical moment, a 'history of the present' as well as providing a foundation for innovative ways of thinking about and engaging with the possibilities and experiences arising from the new reality of relationship recognition for gays and lesbians.

Chapter 1
From civil partnership to same-sex marriage

A decade in British legal history

Nicola Barker and Daniel Monk

Introduction

The Civil Partnership Act 2004 (CPA) and the Marriage (Same Sex Couples) Act 2013 (MSSCA) are important legal, social and historic landmarks. For beyond their practical implications, same-sex relationship recognition, throughout the western world, has become a key site of political contestation, rich in symbolic, material and cultural meanings. While fiercely opposed by many, within mainstream narratives they are often represented as a victory in a legal reform process that commenced with the decriminalisation of homosexuality. Yet, at the same time, for others they represent a problematic and ambivalent political engagement with the institution of marriage. Consequently, understood or labelled as 'revolutionary', 'progressive' and 'conservative', these legal reforms provide a space for thinking about issues that arguably affect everyone, regardless of sexual orientation or relationship status.

This edited collection brings together scholars and commentators from a range of backgrounds, generations and disciplines to reflect on the first ten years of civil partnerships and the introduction of same-sex marriage. The contributors have different views about these reforms - some are in favour, others more ambivalent. But rather than simply rehearsing the arguments 'for' and 'against' relationship recognition, these essays, while informed by earlier debates, collectively ask a different set of original questions and provide a detailed and reflective 'snap-shot" of a critical moment, a 'history of the present'. At the same time, as globally same sex relationship recognition is no longer a proposal to debate but increasingly an aspect of lived experience (both for those who enter them but also for those who for various reasons remain outside them), we hope the essays will provide a foundation for both encouraging and suggesting ways of thinking about and engaging with this new reality.

In this opening chapter we provide an overview of the last decade of legal history relating to same-sex relationship recognition. We refer to this as British rather than UK because while the CPA includes Scotland and Northern Ireland, in the former separate legislation introduced same-sex marriage (see Norrie in this collection) and, to date, the MSSCA does not include the latter. This introduction concludes with an outline of the subsequent chapters.

The legal background

Before civil partnerships were created through the CPA, same-sex relationships had been recognised only for some limited purposes through incremental changes in certain laws. For example, they were recognised in the Immigration Rules if, amongst other things, a couple could demonstrate that they were in a cohabiting relationship 'akin to marriage'.¹ Similarly, case law had come to recognise bereaved same-sex partners who had lived in rented property in their partner's name, as belonging to the category of 'family' for the purposes of tenancy succession.² Same-sex partners had, since 2002, also been able to jointly adopt prior to the CPA (see Cocker in this collection). This was particularly striking because while the other European jurisdictions that had created registered partnership provisions had done so with several exclusions relating to parenting, including prohibitions on joint adoption by same-sex couples, the UK had allowed joint adoption without any comprehensive recognition of the relationship between the same-sex parents who were adopting the child.

The CPA, introduced by the New Labour government in 2004, was not the first attempt to create civil partnerships. In the 2001-2 parliamentary session two Private Members' Bills introduced same-sex relationship recognition provisions.³ Both Bills would have extended recognition not only to same-sex couples, but also to different-sex couples who chose not to marry. As a result, a key objection made to each of these Bills was their potential for undermining marriage through the inclusion of different-sex couples.⁴ Pre-empting a debate that would recur in the context of the government's Civil Partnership Bill 2004, Baroness Buscombe also expressed disappointment at the exclusion of close relatives from the Bill:

Why should close relatives - for example, two cohabiting sisters who may have pledged to care for each other - not register and thereby enjoy the same rights and responsibilities as others? Surely that exclusion is discriminatory in principle, particularly against the elderly. Is the noble Lord interested only in protecting the rights of couples in a sexual relationship?⁵

Though neither progressed beyond second reading, these two Private Members' Bills prompted the government to review the issues (Odysseus Trust 2002) and the government introduced its own Civil Partnership Bill in 2004, following a consultation process.⁶ The government's Bill, which became the CPA, excluded heterosexual relationships and mirrored marriage much more closely than the previous Bills.⁷

The Civil Partnership Act 2004

The CPA, according to the government, provided 'a measured and proportionate response' to the exclusion of same-sex couples from marriage.⁸ The government emphasised that its intention was to provide 'parity of treatment'⁹ between registered same-sex couples and spouses in terms of legal protections and the focus of arguments in support of the Bill during the parliamentary debates was very much on access to financial provisions and formal equality arguments (see also Stonewall 2003, 2004a, 2004b, 2004c). There was surprisingly little overt homophobic reaction to the Civil Partnership Bill (though see further Browne and Nash in this collection). Instead, those opposed argued that as the Bill was an equality measure and not a 'gay marriage' measure, as the government had insisted, there ought to be no objection to extending this equality to deserving family members who remained 'unequal' through their exclusion from the Bill.¹⁰ A series of amendments were attached to the Bill in both the House of Commons and House of Lords that would have allowed siblings and other close family members to register as civil partners in order to avoid inheritance tax. These were not only tax-avoidance measures but also wrecking amendments because the marriage-like provision would have become unworkable if it were extended to family. How would three or more siblings choose which two of them were to register? What if one of the siblings forms a romantic relationship and wants to marry or civilly partner their lover? How would they demonstrate irretrievable breakdown of their relationship? The amendments were designed to undermine the recognition of same-sex relationships as marriage-like relationships but they were all defeated during the parliamentary process (see further Barker 2014, and in this volume).

Key provisions of the Civil Partnership Act 2004

The CPA takes marriage as its template and replicates most of its legal rights and responsibilities so, from the beginning, there were few significant legal differences between civil partnerships and (heterosexual) marriage, and some of those that existed when the Act was first passed have now been removed. Originally, registration of civil partnerships could not take place in religious premises (s6(1)(b)) but this has now been permitted since 2011 with the implementation of the Equality Act 2010, s202. There is no provision for a civil partner to be assumed to be the legal parent of a child born to her partner during the relationship, unlike a husband who would be presumed to be the father of a child born to his wife, but the Human Fertilisation and Embryology Act 2008 changed this in relation to children born through assisted reproduction (s42). The differences that remain are those of language, sex and pensions.

In addition to the label 'civil partnership' rather than 'marriage', differences in language extend to the terminology of 'dissolution⁵ rather than 'divorce' and there is no offence of 'bigamy'; rather, s80 amends the Perjury Act 1911, s3(1) to include making a false statement with regard to a civil partnership. These statutory language differences have often been ignored in practice, with civil partnership registrations referred to as weddings, dissolutions as divorces, and the first criminal conviction for making a false statement widely reported as being a bigamy conviction (see, for example, Barnett 2007; Walker 2007; and Auchmuty and Heaphy in this collection). Civil partnerships are contracted when the couple signs the register (s2) so there is also an absence of language where marriage vows would be spoken, though there is no prohibition on creating vows for civil partnership ceremonies and in practice many ceremonies do contain vows.

There is no consummation requirement and adultery is not a specific ground for dissolution of a civil partnership. This is not because civil partnerships were intended to be asexual or non-monogamous but rather it was explained by reference to the difficulties of attempting to apply a definition of consummation and adultery that is explicitly heterosexual to same-sex relationships (Baroness Scotland, HL Hansard, 10 May 2004, col GC19 and see Collier 1995: 152). For example, to divorce based on adultery there must be, amongst other things, 'consensual sexual intercourse between a married person and a person of the opposite sex during the subsistence of the marriage' (Dennis v Dennis [1955] P 153, at 160, per Singleton LJ). It is interesting that there was an assumption that someone in a civil partnership would never act in a way that meets the definition of adultery (i.e. have sex with someone of the opposite sex), thereby making invisible both bisexuals and the fluid nature of sexuality. Instead, and rather than legislating a different definition of consummation and adultery into the CPA, the government made vague references to civil partnerships being 'loving and caring' relationships ( Women and Equality Unit 2005) to create an implication of conjugality. The reason why it is perhaps unnecessary to include adultery in civil partnerships (or, indeed, marriage) is because a spouse or civil partner can petition for divorce if the respondent has behaved in such a way that 'the petitioner cannot reasonably be expected to live with the respondent' (Matrimonial Causes Act 1973, sl(1)(b); Civil Partnership Act 2004, s44(5)(a)). This easily encompasses not only adultery but also behaviour that would fall short of the legal definition of adultery but a partner may nevertheless consider unfaithful. Consummation itself is arguably unnecessary and outdated (for a feminist critique of consummation, see Barker 2006 ).

The difference between civil partnership and (heterosexual) marriage that has the most concrete impact on civil partners, though, is the different treatment in relation to survivor pensions. Whereas a heterosexual spouse would have access to a spousal survivor pension relating back to the beginning of the pension contribution, a civil partner (and now a same-sex married spouse) can be lawfully prevented from accessing the benefits of any pension contributions made before 5 December 2005, when the CPA came into force (this is permitted by an exception in the Equality Act 2010, Sch 9, para 18).¹¹ This is arguably contrary to European Union (EU) anti-discrimination law¹² but was recently unsuccessfully challenged in an Employment Appeal Tribunal, when a man who had already retired when he entered a civil partnership challenged the pension scheme's decision that his civil partner would be entitled to a survivor's pension of only £500 per year, whereas a heterosexual spouse would have been entitled to two-thirds of his £85,000 annual pension (Innospec Ltd and others v Walker [2014] ICR 645). The court held that the relevant EU law did not have retrospective effect and the unequal treatment was not unlawful at the time it was done. They further held that even if they had concluded that the provision was incompatible with EU anti-discrimination law, they could not have permitted Walker's claim because to do so would 'be diametrically opposed to the thrust of the legislation ... and to the apparent intention of Parliament' (at p 667). They also justified the different treatment on the basis that 'Marriage is a status which is not exactly comparable to that of civil partnership' (at p 660). This case is awaiting appeal and it will be interesting to see whether this reasoning holds up not only in the higher courts, but also in subsequent cases brought by same-sex couples who are married yet still denied equal treatment in relation to pensions, because same-sex married couples are treated the same way as civil partners for this purpose rather than as different-sex married couples.¹³

Criticisms of the Civil Partnership Act 2004 within the lesbian, gay, bisexual and transgender communities

Despite the CPA being 'a victory for the politics of compromise' (Stychin 2006: 79, and Weeks in this collection) and an undoubted improvement in the legal position of same-sex couples, there remain some criticisms of the legislation both from within the lesbian, gay, bisexual and transgender (LGBT) communities and from those who opposed the provision for religious or other (homophobic) reasons. First, like marriage before the MSSCA, civil partnership remains an institution that is defined by gender. This means that trans people who are in a civil partnership would need to get a dissolution before they are able to get a gender recognition certificate (see Renz in this collection). Second, the same criticisms that feminists and some queers¹⁴ make of the institution of marriage apply to civil partnership precisely because it does mirror marriage to such a close extent (see Barker 2012),, though these critiques were largely absent from the mainstream debates prior to the CPA being passed (Young and Boyd 2006; Auchmuty 2007). Finally, the CPA was criticised by those seeking access to marriage who considered civil partnership to be a second-class provision, drawing on the critiques of 'separate but equal' during racial segregation in the United States as an analogy to argue that this was discriminatory. For example, speaking on behalf of the Equal Love Campaign, Professor Robert Wintemute said:

There is no longer any justification for excluding same-sex couples from civil marriage and different-sex couples from civil partnership. It's like having separate drinking fountains or beach...