Discuss and explain: a) How same-sex relationships have come to be increasingly recognised under English law; and b) Whether, in your view, the position is now satisfactory.

On 5th December 2005 the Civil Partnership Act came into force across the UK. There is little factual difference between marriage and civil partnership; indeed the Act was introduced specifically in order to remove the legal, social and economic disadvantages of same-sex couples and has proved to be revolutionary in a huge number of fields.  Previous to this piece of legislation, same-sex couples had no way of gaining legal recognition of their relationship. As a result, many faced the very real possibility of, for example, being forced to leave their home after the death of their partner, as same-sex couples were not given provision under inheritance laws. It is a separate union which provides the .

Michael Scott-Joynt in his article says that ‘a relationship that is not marriage has been treated in law almost wholly as if it is the equivalent of marriage; the CPA has created so convincing and complete a copy of marriage that confusion between the two is - perhaps intentionally - invited by the ‘reasonable implications that can be drawn from the practical provision that is in fact made’.

There are several examples of rights given to same-sex couples under the legislation that coincide with marital rights. One of the most major of these is the extension of access to life insurance payouts. Thus, when one civil partner dies and is covered by a life insurance policy, under the new legislation, the automatic beneficiary will be the other partner.

Also, when a married individual dies, their entire estate passes automatically to their spouse, unless another course of action is specified in the individual's will. This means that, if they were to die intestate there would be no question of the surviving spouse being forced from the family home. As a result of the Civil Partnership Act, however, this provision has been extended to civil partners.

In addition, the rules regarding Inheritance Tax have also been extended to cover those in a civil partnership.

The key conceptual difference between civil partnerships and marriage is that one is essentially same-sex and the other is essentially opposite-sex, with the corollary that children cannot be conceived naturally by the partners. The practical differences in law relating directly to that physiological difference, namely the absence of provision regarding non-consummation and adultery and, in the usual run of things, the conception of children illustrate how the law is unwilling to accept same-sex relationships to the same degree as marital relationships. In my view, the conception of children is one of the fundamental reasons for marriage and so I agree with the law on disallowing same-sex marriage.

Whether it is correct to regard civil partnerships as same-sex marriage depends on whether one regards those aspects of marriage that are the same as civil partnerships- voluntary, permanent, sexual, monogamous, mutually supportive, nurturing of children and probably sexually faithful -as more or less vital to the definition of marriage than the key difference, which is the sex of the persons entering the status.

For many the exclusion of same-sex couples from marriage is not cause for concern. Auchmuty (2004), for example, highlights that for many feminists, like O-Donovan, the institution of marriage is too burdened with historical and ideological baggage and is therefore ‘irredeemable’. Many lesbians and gay men who are excluded from marriage thus have no wish to enter into it, claiming that to support same-sex marriage denies legal and social recognition of what is different about same-sex relationships; to them the claim for the right to marry is merely a claim for the right to assimilate into a patriarchal institution.

Others, however, see same-sex marriage as an opportunity not ‘to participate in traditional family life, but to redefine what counts as a family’.

Thus far Article 12 ECHR has not been interpreted by any court to permit the marriage of same-sex couples.  This is due to marriage being interpreted in the traditional sense. However, courts in Canada and the US have done so and may provide guidance on the possible directions European courts may take in the future.

In the US the California Superior Court does not see that registration of partnerships remedies discrimination against same-sex partners: ‘The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal.’ The court is saying that partnerships generate a feeling of inferiority as to their status in the community.

In 2006 the  rejected a legal bid by a British lesbian couple who had married in Canada to have their union recognised as a marriage in the UK and not as a civil partnership. They argued that it was legal in the country in which it was executed and met the requirements for recognition of overseas marriages and should thus be treated in the same way as one between opposite-sex couples. They rejected the conversion of their marriage into a civil partnership believing it to be both practically and symbolically a lesser substitute. The  ruled that their union would not be granted marriage status and would continue to be recognised in England and Wales as a civil partnership. I agree with the decision of the court that civil partnerships are a parallel and equalising institution designed to redress a perceived inequality of treatment of long-term monogamous same-sex relationships, while at the same time demonstrating support for the long established institution of marriage.

Marriage is the most sacred institution in this country, and every society considers it the joining of a man and a woman. It makes biological sense since only a man and woman can pro-create.

However, the number one reason that heterosexuals marry is not to establish legal status, allow joint filing of taxes, or protect each other in medical decision-making. They marry because it is the ultimate expression of a person's love for another.

The incumbent  government has stated that they have no plans to legalise  and, in my view the position on same-sex couples is now satisfactory. Same-sex marriage is however supported by the  and . There is also a campaign in  to allow same-sex couples to marry in the country.

Although England and the Republic of Ireland may not yet be ready to abandon their traditional approach and embrace a right to same-sex marriage under their domestic laws, they may one day have to accept that such a right exists under Article 12 ECHR. This is because ‘much of the language in Goodwin v UK leaves the door open to acknowledge same-sex marriage at some point in the future’.

Bibliography

Hyde v Hyde (1866) LR 1 PD 130

Fitzpatrick v Sterling Housing Association Ltd [2000] 1 FCR 21 (HL)

Goodwin v UK (1996) 22 EHRR 123 ECtHR

Mendoza v Ghaidan [2004] UKHL 30

Wilkinson v Kitzinger [2006] EWHC 2022

J Herring, Family Law (4th ed., Pearson Education Limited, Dorchester 2009)

A Diduck and F Kaganas, Family law, Gender and the State: Text, Cases and Materials (2nd ed., Hart Publishing, Oxford 2006)

‘Civil partnerships: a pastoral statement from the House of Bishops of the Church of England’ (2005)

J Humphreys, ‘The Civil Partnership Act 2004, same-sex marriage and the Church of England’, (2005) Ecc. L.J. 8(38), 289-306

M Scott-Joynt, ‘The Civil Partnership Act 2004: dishonest law?’, (2007) Ecc. L.J. 9(1), 92-94

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