Background
Civil partnerships were introduced in the UK in 2005, but legislation such as the Matrimonial Causes Act 1973 has historically prevented the marriage of same sex couples. In a bid to step closer to equality, the Coalition Government introduced the Marriage (Same Sex Couples) Bill (“the Bill”) which will legalise the civil and religious marriage of same sex couples. If the Bill receives Royal Assent it will undoubtedly mark an important milestone in the battle for equality. A number of YouGov surveys published between 2012 and 2013 reveal that although the precise figures vary, the majority of participants have confirmed their support of the legalisation of same sex marriage.
On overview of the area
While the majority of the British public appear to be in favour of same sex marriage, presumably many of us anticipated that making it legal would simply require the Government to extend the current legislation to include the gay community. However, some unanticipated difficulties have arisen during the drafting of the required new legislation.
One of the main causes of confusion that has arisen is that under the present drafting adultery will only be a ground for divorce if the adultery has taken place between the cheating spouse and a member of the opposite sex. In other words, if two men are married and one of them is unfaithful with another man, his husband will not be able to petition him for divorce on grounds his adultery. Instead, he will have to rely on grounds of unreasonable behaviour. If, however, his husband were to be unfaithful with a woman, the aggrieved husband could petition for divorce on grounds of adultery.
There has been concern that some couples will choose to wed to benefit from tax and other reasons disassociated from traditional factors such as love and children. Others argue that those who take this view are simply opponents of same sex marriage seeking to opportunistically discredit the viability of the Bill.
The Marriage (Same Sex Couples) Bill was not featured in the Queen’s Speech this year, but it continues to progress speedily through the House of Commons and is expected to reach the House of Lords in June. The Bill may be subject to amendment on its way to Royal Assent and once it becomes law certain aspects may be made subject to judicial interpretation (for example, notions of consummation and adultery seem particularly vulnerable to litigation given the unanticipated difficulties). Despite the technical difficulties faced by the legislators so far, the majority of the British public supports the right of same sex couples to marry and we are well on the way to making it legal, despite some bumps in the road.
For more information on same sex marriage of any area of family and matrimonial law contact Lisa Kemp
Katie McCann: Kuits Family Law
