Has the Marriage (Same Sex Couples) Act 2013 levelled the playing field for LGBT+ couples to marry? The introduction of the Act was a milestone for LGBT+ rights and it should be there to protect the parties, not just when they marry but when they separate as well. However it does not seem that LGBT+ couples have the same equality when it comes to grounds of divorce compared to mainstream marriage.
When first introduced, marriage equality was largely seen as an empty gesture to the LGBT+ community rather than a revolution in the legal system. This is because although it is an important right to have there are more immediate issues such as the high percentage of LGBT+ homeless youths and their mistreatment. What is important to remember when introducing a new standard in human rights is that “there is nothing wrong with equality but the goal is not simply to be included in the status quo, but to transform it” ensuring that the law protects and does not provide its current standard of “inadequate protection” (Rosemary Auchmuty, 2015). The differences between civil partnership and marriage are legally negligible. They are housed under two separate acts, the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013.
Civil partnerships have “a status that is in almost all respects the same as marriage” (John Eekelaar, 2014), legally recognising the bond between gay and lesbian couples. In a civil partnership a document is signed and no words are required to be spoken making it a largely secular affair. Also in terms of divorce there are similar grounds, on death, dissolution, annulment to divorce and separation orders. A view on civil partnerships which the Equality Network argues that “civil partnership was invented specifically to deny same-sex couples access to marriage, and is seen by many same-sex couples as a second-class status” (Frances Hamilton, 2013).
The European Convention on Human Rights is a recent legal and social milestone which has the outward universal appearance to protect all people but shockingly “in 2010 the European Court of Human Rights confirmed the view that the ‘right to marry’ protected by Article 12 of the European Convention did not require states to introduce same-sex marriage” (Eekelaar, 2014). This shows obvious negligence to LGBT+ rights, not in fact making the right to marry equal under what is believed to be held as the current standard.
Marriage can be seen as equalising in name, not needing an alternative title and offering LGBT+ couples the main advantage of it being respected as a mainstream marriage. This perception is important especially in as it is taken into consideration when boarder agencies examine immigration appeals. The fact it is called a “marriage” in itself is significant as “same-sex relationships are demeaned by dismissing them as ‘only civil partners’ or ‘not really married’ ” (Eekelaar, 2014), but now this should be less of a concern.
The main difference between civil partnerships and marriage is that the main religions of the country and of the world do not recognise LGBT+ couples as couples. In the Marriage (Same Sex Couples) Act 2013, religious groups were given the caveat of not being legally permitted to perform civil partnerships or marriages under Section 2. This lacuna in the legislation is a wide one as arguably it legally permits discrimination. LGBT+ couples are allowed to marry, but not by anyone or anywhere they chose, but instead only by those who agree to grant them their legal rights.
There is one ground in which any couple can claim for divorce and that is that the marriage has irretrievably broken down. This is then proved by evidencing only one of five factors, these are adultery, unreasonable behaviour, and separation of two years with consent, desertion and separation of five years. When using adultery in practice, there are concerning inconsistencies as the legal definition of adultery is defined as intercourse with a member of the opposite sex, and depending on the sexual orientations of the people in the marriage or civil partnership this causes problems. What the Act has done is “confine adultery to heterosexual acts because the legal definition of adultery pre-supposes heterosexual intercourse” (Eekelaar, 2014). Adultery is judged by using a standard of hetero-normativity that is nullified in the face of a non-heterosexual couple. This problem largely manifests itself in that if both partners are gay or lesbian this fact for divorce is not available to them, a major cause for concern. In a civil partnership adultery cannot be claimed at all, even if the intercourse was with a member of the opposite sex.
A small positive is that “any manifestation of infidelity could entitle divorce as ‘unreasonable behaviour’” (Eekelaar, 2014). However the issue stands that the legal definition in practice are out of date an inapplicable to all couples therefore not making the Act, despite its intentions, equalising.
An inequality in annulling a marriage, (proving it was voidable), is clear when comparing mainstream marriage to same-sex marriage and civil partnerships in that “unlike opposite-sex marriages, same-sex marriages and civil partnerships would not be voidable for non-consummation” (Eekelaar, 2014). Non-consummation is a more historical ground for annulment but is still a valid ground for ending a marriage however “consummation is defined in heterosexual terms” for people who are not heterosexuals (Eekelaar, 2014). This not being made available to people in same-sex marriages or civil partnerships only goes to highlight how these were not conceived to be held equal by the legislators when creating them, as the legislators had “used the concept of equality in different ways” (Eekelaar, 2014). There are less grounds and rights available to them to allow them to legally and safely end a marriage or partnership, making the union not equal to mainstream marriage despite what is believed.
To conclude, it is not fair to say that equality for non-heterosexual marriage was produced as a result of the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013 as it seems that “provided the legal provisions were virtually identical, nothing more mattered” (Eekelaar, 2014). The law is clearly lacking as simply lifting same definitions from previous acts is a lazy attempt at granting superficial equality for LGBT+ people. Although in name there is equality, there is little sensitivity to the nature of much needed new definitions needed in relation to LGBT+ couples.