This essay will firstly address the similarities and differences between marriage and civil partnerships. It will then address the various commentators, who have argued for the legitimacy and fairness of the distinction and then highlight invaluable oppos

The reasons held for the legitimacy of the distinction between marriage and civil partnerships are invalid. Commentators from the Christian Institute have however argued for the legitimacy of the divide based upon a number of propositions; The Christian institute has argued that it has always been the teachings of the Church of England, that marriage is an institution for committed permanent relationships between a man and a woman. It furthered this proposition by stating that this is essential to ‘the stability and health of human society’ and ‘the best context for the raising of children’ Bankst takes these arguments further by outlining that the concept of same-sex marriage worries people, as the act of sex is associated with the procreation of children. Bankst furthers this by asserting that the concept of procreation is encompassed within the institution of marriage.

 These propositions are strengthened by the long standing definitions of marriage encompassed within UK case law. A definition of marriage was given by Lord Penzance in the case of Hyde v Hyde ‘the voluntary union for life of one man and one woman, to the exclusion of all others.’ Recent case law has also echoed this viewpoint as demonstrated by Lord Nicholls in Bellinger v Bellinger ‘Marriage is an institution, or a relationship, deeply embedded in the religious and social culture of this country. It is deeply embedded as a relationship between two persons of the opposite sex.’These statements have been further strengthened by the Matrimonial Causes Act (MCA) 1973, which stipulates in section 11(c) that a marriage is void unless it is between a man and a woman.

Potter J asserted in the case of Wilkinson v Kitzinger that same-sex marriage should not be permitted seeing as:

“...governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children.”

Bankst elaborates further asserting that same-sex marriage would change the longstanding historical meanings of sex and marriage. Bankst outlines that even married same-sex couples would not be having sex to procreate. The image of marriage would no longer act, ‘as a haven from sexual hedonism’ or, ‘unrestrained carnal exploration’ resulting in the undermining of the image of marriage.

Rainscourt addresses other reasons for the legitimacy of the distinction, highlighting that the enactment of the CPA 2004, basically affords same-sex couples the same rights as those provided by the MCA 1973 exampling that they receive the same treatment as opposite-sex couples. Lord Falconer conferred, that the acceptance of gay relationships within England has been a gradual process, exampling that gay relationships were accepted in 1967 by their decriminalisation and they are now formally acknowledged within the law through the CPA 2004. This observation indicates that a body of commentators see the distinction as a part of a gradual process towards the creation of same-sex marriage. Commentators of the Christian Institute add to this concept by arguing that the Governments enactment of the CPA 2004 will enforce a moral change within society and undoubtedly change people’s attitudes towards same-sex marriage in the UK. However Beresford et al argues that other countries such as Canada, ‘no longer require marriage to fulfil a unique status in order to fulfil the interests of society.’This outlines the irrelevance of the Governments need to gradually allow same-sex couples to marry.

What invalidates these propositions for the legitimacy of the distinction is the allowance of same-sex marriage by other countries such as the Netherlands, Canada, Belgium and Spain. Beresford et al assert that the inequality of same-sex couples as opposed to opposite sex couples lies within the enactment of the CPA 2004 itself; Beresford et al outline that as countries such as Canada have allowed same-sex marriage, the UK’s denial of their entry represents an inequality. They also state that the existence of the CPA 2004 is a form of ‘...sexual apartheid...’ rendering same-sex couples as “second best.” Beresford et al highlight pressure groups such as Outrage who argued that the separate statute, ‘entrenches inequality’ and is discriminatory to same-sex couples. Beresford et al in addition state that such finds of discrimination is at odds with the Governments claims for putting an end to all inequalities. 

This is supported by Potter J who acknowledged in Wilkinson that the distinction was discriminatory as it is based upon the longstanding notion that marriage is meant for procreation. Potter J also added that to allow same-sex couples into the institution of marriage would be ‘to fly in the face of the Convention as well as... fail to recognise the physical reality.’

Assumptions by the Christian Institute conferring that gay relationships are unstable when compared with opposite sex relationships can easily challenged by the enactment of the CPA 2004. Humphreys asserted that by gaining recognition with the law same-sex couples demonstrate that they too are capable of having, ‘stable, faithful, life-affirming, joyful and loving’ relationships. The CPA in itself demolishes this type of justification for the exclusion of same sex couples from marriage.

Arguments claiming that the distinction is justified due to a longstanding history of marriage being between ‘a man’ and ‘a woman’ are easily invalidated for two reasons. Firstly when a piece of legislation renders a group of people discriminated against, it surely cannot be justified based upon longstanding tradition. This was the reasoning presented by the Ontario Court of Appeal in the case of Halpern v Canada, where it asserted that the recreation of a pre-existing distinction cannot hold to justify a distinction; and secondly the Court asserted that the distinction was in violation of section 15(1) of the Charter as it was based upon sexual orientation. The Court held that this was unconstitutional.

In addition the Court also asserted that the UK’s justifications for the divide based upon judgements in Hyde and Corbett v Corbett, were flawed and ‘based on outdated, narrow notions of sexual relationships between women and men.’

Arguments which have been posed to support the legitimacy of the distinction due to the concept of marriage being entrenched within the concept of procreation are inescapably flawed. In Bellinger  Mrs Bellinger brought an appeal to the House of Lords for the recognition of her marriage to Mr Bellinger in 1981. She appealed arguing that the non recognition of her marriage was incompatible with the ECHR and therefore unlawful under the HRA 1998. The House of Lords held that under s.4 HRA 1998, s.11(c) MCA 1973 is incompatible with Articles 8 and 12 ECHR. This resulted in Governments enactment of the Gender Recognition Act 2004 which allows for those who undergo gender re-assignment surgery to acquire a ‘gender recognition certificate’ enabling them to enter into either a valid marriage or civil partnership.

In light of the above, the validity of the distinction between marriage and civil partnerships based upon the concept of procreation is flawed, seeing as transsexuals cannot procreate. This is demonstrated by the judgement of Goodwin v United Kingdom  in which it was held that transsexuals’ not being able to procreate was an invalid reason to exclude them from marriage. Wright suggests the same reasoning could be applied to same- sex couples as well.

Wright strengthens this viewpoint by highlighting that heterosexual couples sometimes do adopt and seek artificial insemination in order to have children. Wright furthers this point by outlining that it is not an essential pre-requisite of the State for couples to show an intention to procreate or to procreate in order to marry. 

In conclusion civil partnerships are marriage in all but name, and there is little legitimacy for the distinction between the two.

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