SAME SEX MARRIAGE – THE LEGAL POSITION

You may have heard about what the newspapers tend to call “gay” marriage.  In fact the Marriage (Same Sex Couples) Bill is about to become law.   My focus here is the legal position rather than the political agenda.

At the moment same sex couples cannot marry.  Instead they have civil partnerships.  Civil partnerships are expressly non-religious and conducted only in Registry Offices or other licensed premises but not in churches.   It has been said that there is discrimination in not allowing same sex couples to actually marry.

In fact civil partnership, from a legal perspective, is exactly the same as marriage. In any event it is certainly the same when it ends.

When a married couples marriage ends it is, as we all know called a “divorce”.   When a civil partnership breaks down it is “dissolved”.   However if you look at the legislation it is exactly the same as the legislation for divorcing couples.  The main difference is that everywhere that the law referred to marriage, it instead refers to civil partnerships. Everywhere the law referred to husband or wife it instead refers to civil partner.  Everywhere that the law said Decree Absolute it says Decree of Dissolution.  There is no ground of divorce called “adultery” in civil partnerships but apart from that it is just the same.

In practice we have not seen the case law or indeed settlements produce a different result in civil partnership breakdown than marriage breakdown. The financial orders that are available are the same and the rules that govern the Judge’s decisions are exactly the same.

One of the results of the change in the law is that same sex couples will have available to them the choice of civil partnership or marriage.   Opposite sex couples will not.  It is uncertain whether the law on this will be changed.

For a more detailed analysis, Adam Wagner a barrister at 1 Crown Office Row has written an article in The New Statesman which you can read following this link, www.newstateman.com/politics/2013/05/myths-and-realities-about-equal-marriage.