Peter Kellner
:Cameron's EU Tactics Backfire
Deborah Jack
:End Homophobia to Reduce HIV
Philip Mansbridge
:G8 or Too Late: Obama, Cameron and G8 Heads Must Tackle Ivory Poaching Crisis Now
European Parliament Web Team
:Homophobia: One-In-Four LGBT People Victim of Violence or Threats in the Last Five Years
Neil Durkin
:A Week's Delay Should Suffice: Is the UK Still Dragging Its Feet on Guantánamo?
After months of speculation and, at times, fairly heated debate, the detailed proposals for same-sex marriage in England & Wales have now arrived. The "Marriage (Same Sex Couples) Bill" was published by the Government on 25 January 2013, in a document running to some 50 pages. There has been a great amount of speculation and misinformation about the proposed laws, so what does it actually say?
1. It will make same sex marriage lawful
Currently, gay and lesbian couples are only able to enter into civil partnerships. While these give almost all of the same rights and responsibilities as marriage, there remains a legal distinction between the two relationship statuses. This proposal will mean that there will be no legal distinction between couples who are married, whatever their sexual orientation.
2. No religious organisation will be compelled to marry same-sex couples
One of the biggest points of contention has been the involvement of religious organisations in marrying same-sex couples, with concerns that there would be insufficient legal protection. The proposals state that no person may be compelled to conduct, be present at or participate in any such marriage in a religious venue. It also specifies that there will be no duty on any Church of England minister to solemnize same-sex marriages. This will not, however, apply to civil marriages in register offices.
3. Religious organisations will have to "opt-in" to same-sex marriage
The proposals provide for a default position that religious organisations will not conduct same-sex marriages in places of worship unless they specifically "opt-in" to the scheme to do so. Individual premises would have to obtain the permission of their relevant governing authority, so it is likely that there will be uniformity across individual religious branches. The exception to this is the Church of England, which in one of the more controversial proposals is specifically excluded from being able to opt-in.
4. The Church of Wales will be allowed to conduct same-sex marriages
Initially, the Government had indicated that the legislation would prevent both the Church of England and the Church of Wales from being allowed to opt into the scheme, to alleviate the former's concerns that they may be required to do so unless specifically prevented. However, following stringent criticism from the Archbishop of Wales, who indicated that he supported the proposals to allow same-sex marriage, they will not be prohibited from doing so.
5. Existing civil partnerships can be "converted" into same-sex marriages
Any couple currently in a civil partnership will be able to convert it into a marriage. The exact details of this are yet to be published, so the procedure and cost of doing so will have to be established. However, for those who do wish to convert their relationship, the proposals provide that while the civil partnership will come to an end on the date of the conversion, the marriage will be treated as having existed from the day the couple entered into a civil partnership. Those who do not wish to convert their civil partnership will not be required to do so, and it will be interesting to see how many will be keen to take up this provision.
6. Civil partnerships will remain available, but only for same-sex couples
One issue raised by the proposals is that same-sex couples will be able to decide whether or not to enter into a civil partnership or get married. However, this choice will not be available to straight couples, who will only be able to get married. It is ironic that proposals introduced to make the law more fair and equal will still leave in place a situation in which there is still a two-tier system, and it is entirely likely that, if passed, this aspect is challenged in the courts.
7. No adultery and non-consummation for same-sex couples
One issue that has exercised some critics of the proposals has been what provision would be made for dissolution of the marriage due to adultery or non-consummation. The Government's answer has been to avoid the issue altogether.
8. If a married person changes their gender, they will no longer need to divorce
Previously, any married person who changed their gender was required to divorce their spouse, which has created a great deal of hardship and distress for those involved. Happily, the proposals provide that if their spouse consents, then they will no longer need to do so.
It is important to remember that these are only proposals, which will need to be voted through both Houses of Parliament, and so there could be further changes. The bill is due to be debated by the House of Commons on 5th February 2013, and no doubt the papers will continue to be filled with arguments between supporters and critics. Hopefully, for many gay and lesbian couples, same-sex marriage is one step closer.
Follow Richard Adams on Twitter: www.twitter.com/BTNFamilyLawyer
Mike Judge: Cameron's 'Disco Dad' Push for Gay Marriage
Joe O'Donnell: Equal Marriage Plans Reveal Government's Deep Unease Over Gay Sex
Of course, unless the proposed inequalities of same-sex marriage are removed, it will not be possible to "reinstate" the original marriage, which would create first-class heterosexual marriages with second-class (i.e. not entitled to adultery or non-consummation protection, equal pensions, etc.) same-sex partners.
That the sex of partners will still be legally material also dashes hopes that those who have changed their sex but are unable to obtain Gender Recognition Certificates will be enabled to marry at last, leaving some of those most in need of human rights still outside the law, probably forever. The minimum age of 18 for gender recognition also now means marriage inequality. Requests that this opportunity be taken to end all the relevant discrimination of that act have been contemptuously ignored, despite most of its content having the primary purpose of avoiding allowing same-sex marriages.
Mt Adams has also missed that the pension entitlement of a same-sex partner will be discriminatory too, as in Civil Partnerships.
These differences mean that there will be two unequal forms of marriage, necessitating them being recorded separately, with the sex of the partners being highly material. In turn that is going to maintain problems for those changing gender or sex as there will still be a material change of rights (and even titles, since a same-sex marriage will not allow use of both "husband" and "wife") between types of marriage.
Effectively this is not equal marriage, but Civil Partnerships renamed marriage.
If Equal Marriage is intended, then substantial amendment of the bill is required. Unfortunately there seems only a headlong rush for blinkered supporters to already say "I do".
In many ways, this would be the perfect time to remove adultery as a reason for divorce and introduce no-fault divorce, which many have been calling for for some time now. Sadly, I think that unlikely to happen.
Unfortunately the GEO is well practised in using "equality" as the rallying call to stampede through discriminatory legislation, aided and abetted by the EHRC. The Equality Act being the huge example. Those seeking amendments are easily smeared as endangering it completely.
And Stonewall is already billing this as the final brick in the wall.
We raised these with the GEO 18 months ago, and in the official consult, then were not included in further T consultation. We raised them at a Stonewall/T coordination meeting, and the LibDem rep - obsessed with having her marriage restored - dismissed them as being amendments we might try to float, but of no interest to her. There are distinct diversities under Gender Incongruence.
The Scottish one is a draft bill, the Westminster one is real, and tabled.
I know that back in 2004 many of us were happy to have access to the separate legal status of civil partnerships which gave LGB couples respect and protection in law whilst sidestepping the social, cultural, religious and politcal 'baggage' of traditional marriage. We've come a long way since the Gay Liberation Front Manifesto of 1971.
I think many of us have been surprised by the speed with which majority mainstream attitudes have changed in favour of LGBT equality since then. The need for a separate status of civil partnership now seems like an anachronism. Yes, it gave us the same civil rights as marriage, but continued to define our lives and loves as 'separate', 'other', tolerated but not valued.
I have some sympathy that there may be some who may still prefer the counter-cultural identity of civil partners, foremost those who have that legal status. But it really is a nonsense to have a three tier system (holy matrimony, civil marriage and civil partnerships).
It seems a reasonable trade-off that new civil partnerships cease upon the enactment of equal marriage. Consultation should take place with existing civil partners about this phasing out. My guess is that in time most will want to convert them to marriages. Those that don't should be respected. But it is ridiculous to have marriage and civil partnerships running concurrently as options for LGB people only. That is not any kind of equality.