On the debate surrounding legislation for same-sex couples - Essay Example

?On the Debate Surrounding Legislation for Same-Sex Couples Changing social attitudes in recent years have sparked the debate that laws dealing with marriage and partnerships are outdated and need to be modernised to include same-sex partnerships. This is evident, if nowhere else, in the large number of couples (both heterosexual and same-sex) who are currently cohabiting. Many are perplexed by the current law’s stance on civil partnerships and marriage, and question why, if the same rights are given to same-sex couples in a civil partnership as married couples, the law simply does not ‘go all the way’ to allow same-sex couples to get married. Is the failure of the law to do so until now merely based on traditional moral conceptions of the sanctity of marriage, or is there a deeper element behind such reluctance? This paper will explore and question why the law has not succumbed to obvious calls to allow same-sex couples to be given the right to enter into civil marriages. It will be ultimately argued that the apparent reason is merely based on attitudes towards the sanctity of traditional marriage and the attempt to prevent it from being modernised. Any other reason does not seem apparent. Accordingly, it will be argued that same-sex couples in civil partnership are not given exactly the same rights as married couples, and that the law would need to straighten these discrepancies before considering the extension of civil marriage to same-sex couples. As the law now stands, a same-sex partner residing with his/her partner is considered to be a cohabitee. Such an arrangement causes the person to have no rights invested in the property and the risk of homelessness is very real should separation occur (Burns v Burns (1984); Singer, 2009). Cohabitants possess no statutory rights to occupation; such rights are only claimable through the use of equitable principles such as trusts or proprietary estoppels. The court indeed has shown a desire to rule in a manner that prevents injustice, though this is a far cry from the positive rights that are granted to married couples. (Standley, 2010: 54). The courts have indeed expressed a need as well as a desire for Parliament to reform the law in cases such as Hammond v Mitchell (1991) and Stack v Dowden (2005). Many ask why, if the law is prepared to assign the same rights to same-sex couples and married couples, it does not simply allow the former to enjoy the institutions of marriage. The same need for reform is evident in the law in relation to children. While the Children Act 1989 defines parental responsibility in a gender-neutral manner (s. 3(1)), it is most often the case that the mother of a child born out of wedlock is given automatic parental rights (CA 1989 s. 2(2)(a)). How does this fare when applied to same-sex couples who are parents? It is clearly recognised that “the legal definition of families has changed over time” (Herring, 2007: 5). This is evident in, as has been stated, the change in social attitudes towards the institution of marriage, the birth of children out of wedlock, and the rights of unmarried couples. The law, although it has greatly moved forward in relation to heterosexual partnerships, has been reluctant to codify any such similar approach to same-sex couples. The courts have attempted as far as is possible to interpret the law in a manner that allows unmarried couples (heterosexual and same-sex) to be granted the same, or similar rights to married couples. In other decisions, the court has clearly expressed a desire for legislation which gives them the freedom to positively grant same-sex couples the same rights as married couples, recognising that this needs an extension of the law of civil marriage to same-sex couples. In the case of Fitzpatrick v Sterling Housing Association (2000), the House of Lords recognised that the definition of family has increasingly become a legal concept. While the couple in the case were not married, the court could not class them as family, yet it expressed a need to reform the law to allow the surviving spouse of a heterosexual or a same-sex couple to be granted the right to continue a tenancy. The decision of the court in Mendoza v Ghaidan (2004) was evidently more aggressive in its interpretation of the Rent Act 1977, extending paragraph 2(2) of schedule 1 to include both married and unmarried couples living together. The court clearly stated that this would be inclusive of same-sex couples living together on a long term basis. Such decisions show that the law has been increasingly “willing to accept that other less formal relations can be family” (Herring, 2007: 6), and this has gathered much ground in asserting the rights of same-sex couples. The law since 2006 has allowed same-sex couples to enter into civil partnerships, which is often defined as giving almost the same legal status as marriage in terms of rights and obligations. The Civil Partnership Act 2004 indeed codifies civil partnerships which actively gives same-sex couples the same rights as married couples, though the government and thus the courts have made it clear that the term ‘marriage’ would not be used (Wilkinson v Kitzinger (2006)). The question thus must be asked: if the law is willing to give the same rights to same-sex couples as it does married couples, why does it refuse to allow such couples to become married? This stance of the law smacks of moral valuations, as it is rather difficult to see how any other explanation can be ascertained. The government in 2011 due to much pressure, formally began considering the possibility of allowing same-sex couples to enter into civil marriages (Travis, 2011), though whether such considerations will amount to anything remains to be seen to date. Others argue that actual expansion of civil marriage to same sex couples will actually function to remove many of the rights currently enjoyed by same-sex couples in civil partnerships (Kitzinger & Wilkinson: 2004; Shipman & Smart, 2007). For example there are differences in the law between marriage and civil partnerships which function to grant different rights to the two. It is recognised that the Civil Partnership Act 2004 does not refer to sex, and this has the effect that civil partnerships cannot be annulled due to non-consummation, as well as removing the adultery basis as grounds for dissolution of a civil partnership (Barker, 2006: 241). There is, however, a general consensus between the rights given to same-sex couples and married couples. Such issues also raise the question of whether, in light of the same rights afforded to married and same-sex civil partnership couples, the law should indeed bother to extend civil marriage to the latter. While the implications of such an extension would be more symbolic than anything, are there any real benefits that can increase or improve the rights of same-sex couples if such an extension of the law is made? Despite claims that the law regulates civil partnerships and marriages largely the same, there are still areas in which the law differentiates between heterosexual and same-sex couples, particularly in the area of cohabitation. It is argued that these differences need to be overcome before any appeal to legislation extending civil marriage to same-sex couples can be proposed effectively. Any distinction in the law between marriage, civil partnership and same-sex couples has major disadvantages and is arguably discriminatory in relation to the degree of rights assigned to each category. There is of course a growing need to extend the law of civil partnerships to same-sex couples because such partnerships are automatically assigned legal rights to an array of things including maintenance claims, property rights, and of course the right to bring up children (Barnett, 2009; Bainham, 2006). Couples classed by the law as mere cohabitees on the other hand, face complex problems as the law struggles to place them in the sphere of family life. As a result, such couples are not automatically granted an equal share in the property, or a right to maintenance claims, as well as other rights and benefits. It is evident that the law essentially treats married and unmarried couples differently, regardless of whether they are same-sex or heterosexual couples. Minimal benefits and rights are assigned to unmarried couples, for example they are granted the right to claim child maintenance should they separate (Bates et al, 51; Hunter & Blandy, 2004). Whether this applies to the child of a same-sex partnership is not entirely clear. Yet, the fact that the law is not able to grant the same rights to unmarried couples as it does to married couples provides arguments for two major groups: same-sex couples and women in a heterosexual partnership. This has been particularly recognised by the Law Commission which suggested that reform is required to at the very least ease the disadvantages suffered by female cohabitees in relation to maintenance and property rights (Doughty, 2011). If the Law Commission recognises this inequality it is natural to assume that it would claim the same for either partner in a same-sex partnership. The Cohabitation Bill similarly recognises that reform is necessary in this area, although it is not enforceable as law; it highlights the growing need to recognise couple partnerships whether they be heterosexual or same-sex. It has indeed been argued that heterosexual couples are nonetheless at an advantage to same-sex couples, for if the former desires the rights assigned to married couples, they can simply get married. Critics of the Bill claim that the institution of marriage would be greatly undermined in the UK if unmarried and same-sex couples were to be given the rights that married couples are given. What is the alternative? The answer is clear: extend the law to allow same-sex couples to marry. This would firstly allow same-sex and heterosexual couples to be given equal rights, whilst not undermining or threatening the sanctity of marriage. Many support this solution (Park et al, 2008), and it is indeed difficult to see why such a reform has not yet been made. Indeed, the Bill’s proposals have been expressed as necessary in modern society (Bates et al; 63-64), particularly in terms of property law and cohabitant rights. There are obvious differences assigned at law to marriage and civil partnerships. It could thus be argued that the reluctance of the law to extent civil partnerships to same-sex couples is a bid to maintain such differences. Why it would want to is unclear. Attention thus must be drawn to the jurisprudential basis of the law’s recognition of partnerships and marriages separately. Can the law’s reluctance to allow civil marriages for same-sex partners be amounted to moral connotations of the sanctity of marriage in relation to homosexuality (Kiernan, 2004)? Early common law heavily condemned the notion of same-sex marriage on the reasoning of “the vehement condemnation in the scriptures of...all homosexual relationships” (Adams v Howerton (1980): 1123). Moral assumptions of the inherent ‘wrongness’ of same-sex couples caused the law to protect with eagerness the sanctity of marriage as being solely between a man and a woman because marriage was seen as “an intrinsic human good that homosexual union simply cannot achieve” (Gerstmann, 2004: 24). The law implemented such moral concepts from an early period, as it considered the function of marriage to be the biological creation of the child. As a result of both societal moral connotations, the sanctity of marriage between man and woman became deeply ingrained in the legal system (Piderit, 2012: 184, Cretney, 2006: 2-3). As a result, changes have been slow and the modernisation of the law has been cumbersome and difficult. Some even express scepticism in relation to the link between law and marriage (Stychin, 2005). Today, the recognition of the validity of civil partnerships for same-sex couples symbolises major overhauls of the approach of the law to homosexuality. It has, however, taken a long time to be fully implemented. The same is predictable of the law’s extension of civil marriage to same-sex couples, which it side-steps by granting them more or less the same rights as married couples without succumbing to the terminology of marriage as of yet. This will inevitably occur, but it is not, as some may assume, a mere failure to reform. It conveys a reluctance to press the law forward so abruptly when public and legal opinion has not yet been fully developed or formed. The fact that civil partnerships provide a suitable alternative (for all areas except terminology) will inevitably result in a slow and delayed reform of the law in this area. In conclusion, it is argued that the law does more or less treat same-sex couples the same as married couples. It has however avoided the permission of marriage of the former, most probably due to a deeply ingrained set of connotations and traditions based on the sanctity of marriage. The two potentially conflicting stances of the law have been eased through the creation of civil partnerships, and even this arguably took long enough. Is the law (and society) ready to extend marriage to same-sex couples? Though tentative steps have been made in this direction, the answers appears to be no. Indeed, it will occur, yet the issue of when it will occur depends on the ability of the law to respond to societal tolerance, as well as its ability to overcome profound bases on the traditional concept of marriage. In the meantime, the availability of civil partnerships for same-sex couples appears to suffice. Bibliography Bainham, A 2006. ‘The Rights and Obligations with the Birth of a Child’ in Spencer, J & du Bois-Pedain, A. Freedom and Responsibility in Reproductive Choice. Hart: Oxford. Barker, N 2006. ‘Sex and the Civil Partnership Act: The Future of (Non)Conjugality?’, Feminist Legal Studies, vol. 14, no. 2, pp. 241-259. Barnett, A 2009 ‘The Welfare of the Child Re-visited: In Whose Best Interests? Part II’, Fmaily Law, vol. 39, no. 2, pp. 135-141. Bates, P, Jenks, H, Golding, S, Kempton, J & Ramsey, S 2011. Law: Relationships, Families and the Law Manual 1. 2nd edn., Oxford University press; new York. Cretney, S 2006. Same-Sex relationships: From ‘Odious Crime’ to ‘Gay Marriage’. Oxford University Press: New York. Doughty, S 2011. ‘Give Cohabitees the Same Rights as Married Couples, says Britain’s Top Family Judge’ The Daily Mail, 4 February 2011. Source: http://www.dailymail.co.uk/news/article-1353117/Top-judge-Sir-Nicholas-Wall-Give-cohabitees-rights-married-couples.html. Accessed: 9-12-2011. Gerstmann, E 2004. Same-sex Marriage and the Constitution. Cambridge University Press: Cambridge. Herring, J 2007. Family Law. 3rd edn., Pearson: Essex. Hunter, C, Blandy, S 2004. ‘Relationship Breakdown, Women and Tenants’ Rights – choice or Paternalism’, Child and Family Law Quarterly, vol. 12, no. 5.. Kiernan, K 2004. ‘Redrawing the Boundaries of Marriage’, Journal of Marriage and Family, vol. 66, no. 4, pp. 980-987. Kitzinger, C & Wilkinson, S 2004. ‘The Re-Branding of Marriage: Why we got Married Instead of Registering a Civil Partnership’, Feminism Psychology, vol. 14, no. 1, pp. 127-150. Park, A, Curtice, J, Thompson, K, Phillips, M, Johnson, M & Clery, E 2008. British Social Attitudes: The 24th Report. Sage: London. Piderit, J. 2012. Sexual Morality: A Natural Law Approach to Intimate Relationships, Oxford University Press: New York. Shipman, B & Smart, C 2007. ‘’It’s Made a Huge Difference’: Recognition of Rights and the Personal Significance of Civil Partnership”, Sociological Research Online, vol. 12, no. 1. Singer, S, 2009. ‘What provision for unmarried couples should the law make when their relationships breakdown?, Family Law, vol 3, no. 12.. Standley, K 2010. Family Law. 7th edn., Palgrave Macmillan: Hampshire. Stychin, CF 2005. ‘Coupling: Civil Partnership in the United Kingdom’, Ney York City Law Review, vol. 8, no. 543. Travis, A 2011. ‘Gay Marriages and Heterosexual Civil Partnerships may soon be Welcomed’, The Guardian 17 February 2011. Source: http://www.guardian.co.uk/lifeandstyle/2011/feb/17/civil-partnerships-marriage. Accessed: 8-12-2011. Case Law Adams v Howerton 486 F. Supp. 1119 (CD Cal 1980) Burns v Burns [1984] CH 317 Fitzpatrick v Sterling Housing Association (2000) 1 FCR 21 HL. Hammond v Mitchell [1991] 1 WLR 1127 Mendoza v Ghaidan (2004) UKHL 30. Stack v Dowden [2005] EWCA Civ 857, [2006] 1 FLR 254 Wilkinson v Kitzinger (2006) EWHC 2022 Fam. Read More