Marriage Equality

Sarah Wyburn Considers the Implications of the Marriage (Same Sex Couples) Act 2013

On 13th March this year the Marriage (Same Sex Couples) Act 2013 came into force. The new legislation heralds a significant change to the legal landscape governing couples’ relationships, and the first marriages under the new law are due to take place on 29th March.

In a landmark move, the new law allows same-sex couples in England and Wales to marry, in both civil and religious ceremonies. Religious institutions will be able to “opt in” to perform same sex marriages and will seemingly not fall foul to the Equality Act 2010 if they chose not to do so.  The Church of England and Church in Wales still preserve the position that marriage is for couples of the opposite sex.

The Act also also contains less-heralded provisions for married people to change their gender without having to end their existing marriage.

Following the introduction of civil partnerships during the last decade, public opposition to same-sex marriage appears to largely have melted away. Research conducted over the last five years has shown the British public is increasingly in support of gay marriage, and this overdue legislation is simply catching up with public opinion.

Most of the practicalities of the new law will be relatively minor from a legal point of view, as there were very few legal differences between a civil partnership and a marriage to begin with. The biggest change is in the social equality the legislation represents. There are, however, some issues with the drafting and implementation of the Act that have caused and may continue to cause practical problems. The biggest hurdle to overcome presently penalises those who have already taken the plunge and entered into a civil partnership with their partner.

Attitudes towards civil partnerships were initially shaped by the two sides of this compromise, sold as either “marriage in all but name”, or “a distinct and inferior offering”, depending on who was being addressed. As a result, now that gay marriage is to become a fact in British life, the new law leaves the previous civil partnership legislation in something approaching legal limbo.

Most importantly, and perhaps most shockingly, there is no immediate provision for couples that are already in a civil partnership to convert that partnership to marriage. The UK Government has been strenuously avoiding referring to the process as an “upgrade”, so as not to contradict earlier messages that civil partnerships were “separate but equal” and not in themselves inferior to marriage. This process will eventually become available – a rough timeframe of “late 2014” has been mooted – but in the meantime, a committed couple in this situation will have to dissolve their civil partnership before getting married.

In my professional experience as a family lawyer practising in Wales, the couples who are keenest to convert their civil partnerships into marriage are those who had waited a long time to marry and who took up the chance to have a civil partnership at the earliest opportunity; ironically, it is these most committed of couples, those who most ardently want to be married, who are disadvantaged by the implementation of the new law. It is hard to understand how this obvious problem was not foreseen when the Act was drafted.

One consistent theme during the last eight years has been the demand for civil partnerships to be opened up to heterosexual couples who, for whatever reason do not wish to define their relationship as a marriage. Given that research has shown the general public in the UK regards civil partnerships as being equivalent to marriage, with the ceremonies universally called “weddings” and civil partners routinely referred to as husbands and wives, it will be interesting to see what happens to civil partnerships as an unambiguous distinct option now that marriage is an equally available choice.

Nonetheless, this is a long overdue move that finally reflects public opinion and brings England and Wales into line with moves already seen in other western countries, and despite its technical flaws, it should be warmly welcomed.

It is worth noting, that the Act does not apply to Scotland and the Scots are making their own arrangements to implement this policy. The same could be true for Wales if law making powers were further devolved. Despite significant recent debate, however, it seems a Law of Wales is some way off.

Sarah Wyburn is an Owner Director of Wendy Hopkins Family Law Practice in Cardiff, the first law practice in Wales to be a Stonewall Diversity Champion.

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