Civil Partnership and Marriage Are the Same - Essay Example

?Civil Partnership and Marriage are the Same, Hence Extending Marriage to Same-Sex Couples or Civil Partnership to Different-Sex Couples are Unnecessary: A Critical Discussion Introduction In English law, the classic definition of marriage dates back to 1866, given by Lord Penzance in Hyde v Hyde, as “the voluntary union for life of one man and one woman to the exclusion of all others” (Horrigan 2003: 175). Thus, the four conditions related to marriage include the requirement for it to be voluntary, intended for a life-time, a heterosexual union, and must be monogamous. Additionally, the parties should be of marriageable age. Regarding civil partnership, the Civil Partnership Act 2004 defines it as “a formal legal relationship between two people of the same sex formed when they register as civil partners of each other” (LexisNexis 2011). To be eligible for a civil partnership, the parties should be of the same sex, be unmarried and not already a civil partner, be over the age of 16 and have parental consent if under 18 years of age, and should not be within the prohibited degrees of relationship. The formalities of marriage are predominantly governed by “the Marriage Act 1949, the Marriage Act 1983 and the Marriage (Registrar General’s Licence) Act 1970” (LexisNexis 2011). They include requirement for licenses, the conduction of marriages in a prescribed place, the fulfillment of formalities that relate to the hours of marriage, the attendance of witnesses, and other factors. Failure to comply with the formalities may form grounds for nullity. The formalities governing the formation of a civil partnership are contained in the Civil Partnership Act 2004. They include the requirements pertaining to notice and residence, the place of registration, delivery of the civil partnership document, registration, publicity, objections, and the waiting period. There is recognition of particular overseas relationships in England and Wales, which derive the same benefits as civil partnerships, and may be terminated in the same way as civil partnerships. Thesis Statement: The purpose of this paper is to critically discuss the statement that civil partnership is simply marriage by another name; therefore there is no need to extend marriage to same-sex couples or civil partnership to different-sex couples. Civil Partnerships and Marriage Until 1967 the concept of same-sex partners had not been acceptable in the United Kingdom; and sexual relations between two people of the same gender was considered illegal. The law was changed in 2004 as a result of extensive pressure from the gay community and the government’s commitment to equality and social justice. Ultimately, the law recognised the relationship between same-sex couples as similar to the marriage relationship between opposite-sex people. These reforms are significant, particularly for those generations of same-sex couples who suffered discrimination because of their relationship being considered illegal (Family Law 2, 2007). Thus, The Civil Partnership Act 2004 (CPA) has had long-term legal effects. It creates a new legal status of ‘civil registered partner’, and aligns English law with that of “the Netherlands, Belgium, parts of Canada, Denmark, Sweden, Portugal, Spain and Germany” (Family Law 2, 2007: 30). The Act grants several rights and responsibilities to homosexual partnerships that have been registered. Like marriage, the Civil Partnership Act, 2004 has particular formalities which need to be in place. The formation of the civil partnership is procedurally similar to the civil wedding. Thus, “the registration cannot take place in a place of religious worship and no religious service is permitted” (Family Law 2, 2007: 30). However, a specific difference between a civil marriage and a civil partnership is the form of words used; that is, no specific forms of words need to be used for a civil partnership unlike the case of a civil wedding. Only people of the same sex can register Section 2(1) of the Civil Partnership Act, 2004. This necessitates the signing of the civil partnership document by both civil partners. This indicates that the partnership has been registered. However, it is not as restricting as a civil wedding and underscores the fact that the partnership is not a marriage. For nullifying the Civil Partnership, the substance of the existing law applies to civil partners. The form is different, and can be found in ss.49-s.50 CPA. “Here the same grounds of prohibited degrees, age limits, defective formalities, already married or in a civil partnership” (Family Law 2, 2007: 30) and the parties being of the same sex apply, and will result in the partnership lacking validity, and thus being void. The Gender Recognition Act 2004 (GRA 2004) came into force on 4th April, 2005, and enabled the application for a gender recognition certificate. Application for a gender recognition certificate may be made by a person of either gender of a minimum of 18 years of age. The two bases of application include “living in the other gender, or having changed gender under the law of a country or territory outside the United Kingdom approved by order made by the Secretary of State” (LexisNexis 2011). These are referred to in the statute as the acquired gender. The Gender Recognition Panel determines the application. If the panel is satisfied that the applicant meets the requirements in GRA 2004, it must grant an application based on living in the acquired gender. In the first two years from the commencement of GRA 2004, there are transitional provisions that are applicable. For obrtaining a gender recognition certificate (GRC), it is not a preconditon that the applicant should have undergone gender reassignment surgery. An interim GRC granted if the applicant is married serves as potential ground for a decree of nullity of the marriage. With the granting of a decree of nullity, a full certificate must be issued. The GRC ensures that a person’s gender becomes the acquired gender. However, subsequent to European Court of Human Rights’ enactment of the GRA 2004, “gender change does not affect status as the father or mother of a child” (LexisNexis 2011). Current English law related to the celebration of a marriage, given in Statute 1-006 is enclosed in the Marriage Act of 1949 which strengthened earlier legislation that has been amended several times over the past six decades. The formalities for registering civil partnerships given in Statute 1-049 are modeled on those for civil marriage (Masson, Bailey-Harris & Probert 2008). The Consequences of Marriage include several factors: a marriage can be ended only by a decree of divorce or nullity; an obligation to make reasonable financial provision for the other during and after termination of the marriage; spouses’ rights of occupation and the right to protection from eviction, by the matrimonial home rights under the Family Law Act 1996; parental responsibility for a father who is married to the mother of his child (LexisNexis 2011). Similarly, the Consequences of Civil Partnerships include same rights for civil partners as for married partners, according to the Children Act 1989. These cover the right to apply for a parental responsibility order in the same way as a step-parent in the case of a married couple; ability to acquire the same financial relief in dissolution of the civil partnership by nullity or separation as in the case of a married person under the Matrimonial Causes Act 1973, Part II. Further, a civil partner is treated in the same way as a spouse or former spouse in relation to inheritance and with respect to each other’s estate, including rights upon intestacy, according to the Inheritance Act 1975 providing for family and dependents. Protection from domestic violence is accorded to civil partners as to a spouse, by amendments to FLA 1996 Part IV (LexisNexis 2011). The law could also set out the minimum requirements for a marriage or civil partnership, to delineate the extent to which a ceremony may deviate from the prescribed form before it loses any legal status, and identify the specific point at which a couple become married. Whether a civil ceremony should become the only legally effective way of contracting a marriage as seen in many foreign countries, needs to be determined. This would bring the law of marriage in alignment with the law governing civil partnerships; and the parties would remain free to subsequently undertake any preferred religious ceremony. There is a long history for such proposals for reform being rejected (Masson et al 2008), Beyond the similarities, there are some key differences between civil marriage and the registration of a civil partnership. No prescribed vows have to be exchanged by civil partners. The Act states that two people are to be considered to have registered as civil partners of each other, after both of them sign the civil partnership document. Thus, signing the register indicates a combination of consent, ceremony and proof. Additionally, the consequences of failing to comply with the necessary formalities are the same for married couples and civil partners (Masson et al 2008). Whether Extending Marriage to Same-Sex Couples is Essential Besides gay and lesbian people, liberal politicians and civil libertarians as well, “are ready to challenge the earlier, near-universal assumption that marriage is a union of male and female in a permanent and exclusive relationship primarily for the bearing and raising of children” (Almond 2006: 18). The European Union does not support such a definition, since it complies with a wide programme of gender equality in various areas. There is a tacit consensus in European countries with the definition of marriage as a union between a male and a female. However, in the United States of America, battle lines are drawn between those who seek to have written into the Constitution a definition of marriage as a union of male and female, and advocates of same-sex marriage on the opposing side. The notion of marriage as a voluntary and exclusive union is also reflected in Canadian law, although in that case the reference to ‘persons’ instead of ‘man and woman’ was a prelimary indication pointing to the controversy that developed about same-sex marriage. Unconventional unions between heterosexual couples cohabiting without being married, or in relationships without commitment, and the unions between same-sex people are causing fragmentation in western societies. The decline of the traditional family in western democracies may appear beneficial, but any advantages would only be short-term. This fragmentation can threaten the continuity and existence of the communities. The most adverse impacts may be “relative changes in population numbers and an ensuing shift in cultural influence and power” (Amanda 2006: 20). The fragmentation of the family in western societies in accelerating rapidly. Some greet this trend as a positive development. Influential commentators such as the sociologist Anthony Giddens stated that “the persistence of the traditional family – or aspects of it - is more worrisome than its decline” (Bronner & Thompson 2006: 84). Giddens relates his adoption of cosmopolitan values, gender equality and individual freedom to the notion of “detraditionalisation”. According to the sociologist, under globalisation, although traditions in public institutions and every day life remain, “their hold on people is broken and they can no longer be defended through their own internal claims to truth but must be justified externally” (Bronner & Thompson 2006: 84). Although traditions are useful in some domains such as academics, detraditionalisation is fundamentally a positive change, according to Giddens. By introducing rationality extensively into all remaining traditions, the process of detraditionalisation produces a cosmopolitan morality in which various traditions can exist together. Similarly, Giddens welcomes the new individual freedoms that accompany detraditionalisation, because new worlds of life-choice possibilities are now opened up by creating and recreating self-identity on a more active basis than before. The requirement for same-sex marriage is considered as surprising because same-sex couples are already offered a civil union or legally recognised partnership in most western countries. The reasons for this concern are numerous, and should be differentiated from the issue of the moral and legal status of homosexuality itself. “In Britain the decriminalization of homosexuality took place in 1967 with the introduction of the Sexual Offences Act” (Amanda 2006: 19). This underscored the perspective that what consenting adults do in private is not a concern of the law. Therefore, the forces that drive a same-sex couple towards marriage may not be related to living an openly gay life. On the other hand, the pressure may be due to the attraction of the marriage ceremony and the recognition it gives, the desire to be on par with heterosexual couples “in legal and financial arrangements such as inheritance, tax, and insurance” (Amanda 2006: 19), or the yearning for a union that includes children either through adoption or reproductive technology. Identifying these different aspirations is the first step in considering whether they can be fulfilled, the way to satisfy these desires, and whether they ought to be satisfied. The concept of same-sex marriage becomes more complex where the desire is the more fundamental one of founding a family with an intention of producing progeny. Bradley (2008) questions what is in the name ‘marriage’, whether it is a meaningless verbal preference. Similarly whether civil unions which presuppose sex are really marriage by another name, “a distinction without a difference?” (Bradley 2008: 614). If so, then parallel concepts with their own restricted implications are necessarily irrational, and should be eliminated for that reason. Further, the author questions whether there is more to the name ‘marriage’. In the cultural clash over same-sex marriage, the word marriage itself, without taking into consideration the rights and benefits of marriage, has an evocative and important meaning to both parties. The same-sex couples who wish to get married, seek not only the legal standing of marriage, but also social acceptance which in their perspective is the last step toward true equality with heterosexual married couples. Thus, parallel structures of marriage and civil partnership amount to these institutions being separate but equal. This is similar to public facilities being open to persons of both races, “but signs indicating ‘coloureds only’ were retained as a political concession to popular prejudice” (Bradley 2008: 614). A marriage-defining law would mean a sexual relationship that is recognized and affirmed by the state. Such a law means that no benefits or privileges may be established on a non-marital sexual relationship. Where the legal definition of marriage as the union of man and woman is constitutionally specified, any statute or municipal ordinance or court decision creating sexualized civil partnerships or unions violates the fundamental law. Additionally, norms against unjust discrimination and in favour of equality do not lead to same-sex marriage. Traditional marriage laws do not imply inequality or second class citizenship. At the same time, “they do not preclude the prudent extension by competent authority of some benefits traditionally reserved to married couples, to unmarried couples, and even to groups living in household community” (Bradley 2008: 614). Arguments opposing same-sex marriage emphasize the sanctity of marriage as a procreative union between a man and a woman. Additionally, arguments against same-sex marriage are usually based on religious rather than legal principles. Civil marriages have always taken place without religion playing a part. Today, however, any unified religious objection to a same-sex marriage is slipping away because religions such as Reform Judaism, Unitarian Universalism, and some sects of Buddhism openly support gay marriage. Conservatives’ popular argument is that “a host of social ills will result from legal recognition of gay marriage” (Gomes 2003: 18). The definition of marriage itself would change, and various types of marriages such as bigamous, incestuous, and others would have to be recognised. Conversely, it is argued that the predictions of potential disaster are incorrect. As surely as states have for all these years restricted legal marriage to one man and one woman, they can also extend marriage to encompass same-sex couples and nothing else. “Life partnerships and childrearing between consenting adults are experiences that contribute to quality of life and enjoyment of full personhood” (Gomes 2003: 19). Two additional methods commonly used to attack the legalisation of same-sex marriage relate to laws pertaining to physical intimacy between two people of the same gender, and the Defense of Marriage Act. The former is biblical in origin, intended to regulate morality, intrudes on privacy, and is discriminatorily enforced against same-sex couples. However, Gomes (2003: 18) reiterates that “all these arguments are weak because they are based on outdated ideas about sexual relations and marriage”. Extending Civil Partnership to Heterosexual Couples The Civil Partnership Bill passed by Parliament in Britain in 2004 allows same-sex couples to formalise their relationship and have the same rights and responsibilities as married couples. Kiernan (2004) states that before the bill was passed, there was much debate on whether civil partnership status should be extended to heterosexuals. However, the British government decided that heterosexual couples did require the civil partnership registration scheme to the same extent as same-sex couples, because a religious or civil marriage affords a legal and socially recognised status. However, if heterosexual couples do not opt for marriage that is their decision, and cohabitants are accorded some protection by the welfare and legal authorities. Cohabitation among heterosexual couples leads to major unresolved issues pertaining to property and inheritance rights, particularly in Britain and other European nations, as in Canada. Hoewever, for granting services such as sickness and family benefits, welfare authorities tend to treat cohabitants in the same manner as married couples. ‘Civil union’ laws or those pertaining to civil partnerships have same-sex limitations. A same-sex couple who had lived together for years were in a lasting relationship of mutual affection. The court underscored the state’s interest in extending official recognition and legal protection to the professed commitment. However, the same-sex couple in a civil union cold not be permitted to another civil union or marriage. Being of the same sex, they were excluded from the marriage laws of this state (Bradley 2008). At the same time, excluding heterosexual couples from these unions has two parts. The first is that a man and a woman interested in each other sexually do not require access to civil unions, because they already have an equivalent alternative: they can marry. Same-sex couples with the same interest may enter civil unions. Therefore, there is no unjust discrimination against a courting couple of the opposite genders. Second, excluding heterosexual couples from civil partnerships is irrational unless civil unions are also not permitted for platonic same-sex couples. Bradley (2008) states that civil partnership laws base benefits only on the presence of a sexual relationship. Therefore, civil partnership laws function wherever these forms are limited to same-sex couples or have a consanguinity limitation, or where all or almost all marital benefits are on offer, and when two or three of the above criteria are present. In a Civil Partnership, if the couple of the same sex wish to have children through assisted reproduction or adoption, they may try to adhere to the root conception of the family. This is because, unlike the traditional notion of family, a “weakened and dilute conception of the family like that favoured by the Red-Green coalition in Germany” (Almond 2006: 17) which supports the notion of ‘family is where children are’, deprives children of many of the rights taken for granted till now. This concept denies them not only their particular parentage, their own mother or father, but may also adversely impact their self-concept and sense of contextual identity. This is an important feature in the discussion of same-sex civil partnerships. While traditional marriage between two people of the opposite gender, and the terms in which it is conducted are familiar, same-sex unions pose a more radical challenge to the concepts of marriage and family. “This new challenge focuses on the issue of gender” (Almond 2006: 18). Ironically, while heterosexual couples are more frequently taking to informal arrangements such as cohabitation, or simply ‘relationships’ which are based on freedom from commitment, same-sex couples are seeking out legally recognized marriage as a campaigning goal. By 2006 it had been achieved in a number of countries including Belgium, the Netherlands, Spain, Canada, and parts of the U.S. According to Gomes (2003), civil unions simply are not good enough. Although civil unions and domestic partnership protections offer important benefits to couples which cannot marry, only a true civil marriage provides complete equality at the state and national level. This includes entry into a legally recognised relationship in any jurisdiction; the ability to move freely throughout the country with the assurance that the relationship’s legality will be acknowledged; and accessible protection of laws and policies for the benefit of married couples. Thus, heterosexual couples will not be benefited even if civil partnership were offered to them, because they can get married. Conclusion This paper has highlighted civil partnership and marriage, and critically discussed the statement that civil partnership is simply marriage by another name; hence there is no need to extend marriage to same-sex couples or civil partnership to different-sex couples. Civil partnership takes place only between two people of the same sex; while marriage is between a heterogenous couple. Functionally, civil partnership and marriage are similar to a great extent, with a few differences in the procedural formalities undertaken in both type of unions. The legal requirements for obtaining civil partnership, and critical perspectives of current law on marriage and civil partnership were examined. It was found that a number of reforms are required to be undertaken with social changes taking place, with cohabitation without marriage, and gay partnerships becoming increasingly common. On extending marriage to same-sex couples, the evidence indicates that this reform can be undertaken easily, without causing any major societal drawbacks. With increasing numbers of same-sex couples in civil partnership desiring to have a family by means of adoption or technologically assisted procreation, their desire to achieve complete equality with heterosexual married couples, can be fulfilled in a rapidly developing contemporary world. Moreover, procreation and child-rearing are not the exclusive domain of heterosexuals. Further, almost all legal benefits such as right to property and right to inheritance as available to married partners are increasingly being made available to same-sex civil partners also. Same-sex marriage will also provide opportunities for recognition of married status across the country and perception as a mainstream partnership with full rights and responsibilites. These changes will greatly promote same-gender couples. On the other hand, it was not considered essential to extend civil partnership to heterosexual couples, who have the optimal option of marriage always available to them. Further, modern trends of cohabitation without marriage, with or without children is a matter of choice, but they have to forego various legal benefits as a result. Therefore it is concluded that although civil partnership and marriage are almost similar in formalities, procedures, legal status and eligibility for benefits, there is a need to extend marriage to same-sex couples; although extending civil partnership to heterosexual couples was not found to be necessary. ---------------------------------------- Bibliography Almond, B. (2006). The fragmenting family. Oxford: Clarendon Press. Bradley, G.V. (2008). What’s in a name? A philosophical critique of ‘Civil Unions’ predicated upon a sexual relationship. The Monist, 91 (3-4): pp.606-620. Bronner, S.E. & Thompson, M. (2006). The logos reader: Rational radicalism and the future of politics. The United States of America: University Press of Kentucky. Family Law 2. (2007). Marriage and civil partnerships. 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