The Civil Partnership Act - Essay Example

Introduction The Civil Partnership Act 2004 (hereinafter “CPA” or “Act which received Royal Assent on 18 November 2004 and came fully into forceon 5 December 2005, provides the legal framework for the recognition of same sex relationships in the United Kingdom. As Jacqui Smith M.P., the Minister of State for Industry and the Regions and Deputy Minister for Women and Equality in 2003 states, “same-sex couples living in stable and committed partnership” suffer from unfairness and injustice because “the law rarely recognises their relationship” (Mallender and Rayson 2005: 1), an injustice that the Act aims to remedy by its enactment. The Act is therefore a landmark legislation in elevating the legal status of same sex relationships to that close to heterosexual marriages. However, while it is undeniable that the Act is a step in the right direction, it is doubtful whether it can actually achieve the objective it was set out to fulfil - to eliminate the discrimination and injustice suffered by same sex relationships within society. In this respect, this essay will argue that eliminating discrimination and injustice for same sex relationships is a task that cannot be achieved through the Act alone, but through the more colossal task of social change, instead, what the Act can achieve for same sex relationships are increased protection and privileges, as well as responsibilities similar to heterosexual married couples. Moreover, the essay will also argue that by increasing the privileges of same sex relationships, the Act is also likely to increase the pressure for greater privileges and rights for heterosexual unmarried couples. To illustrate this point, the essay will first discuss the status of same sex relationships under the law prior to the Act. It will then discuss salient points of the Act, followed by the possible effects it will have on same sex relationships, heterosexual relationships, as well as marriages in general. Same Sex Relationships before the Civil Partnership Act Prior to the Civil Partnership Act 2004, same sex relationships in the United Kingdom simply do not have the legal status given to marriages. The Family Law Act 1996 under s 62§1, for example, limits the definition of cohabitants to “a man or a woman living together as husband and wife.” The Local Government Act 1988 also provides a similar definition in defining same sex relationships as “pretended family relationships” under section 28, indicating a lack of recognition both from a legal and social point of view. As a result, same sex relationships have been discriminated against by a number of statues and court decisions, which places same sex couples at a disadvantage compared to married couples. One of the areas same sex couples are discriminated against is with respect to raising children. For example, under section 30 of the Fertilisation and Embryology Act 1990, the application for parental orders of surrogacy is limited to married couples alone. The same limitation is provided under the Adoption (Scotland) Act 1978, where joint applications for adoption are only limited to married couples. With respect to child custody, in Re P (A Minor) (Custody) [1983] 4 FLR 401 CA, it was stated by Watkins LJ that although it mothers under a same sex relationship should not be prevented from gaining custody of her child, such arrangements should only be tolerated if there are no other possible custodial arrangements available (cited in Gray and Brazil 2005: 1) Furthermore, same sex couples are also discriminated in the manner that they are prevented from enjoying certain social benefits and incentives available for married couples. These benefits include pensions, family and child credits, inheritance, housing, and other social benefits limited to married couples. Under the Rent Control Act 1977, for example, assured tenancy is extended only to a deceased tenant’s living spouse, who by definition is limited to persons living with the original tenant “as his or her wife or husband” (para. 2§2 of Schedule 1). On the other hand, family credits under section 128 of the Social Security Contributions and Benefits Act 1992 are limited to unmarried couples consisting of a man and woman and are not extended to same-sex relationships, even if they have the same legal status as unmarried couples. Thus, based on this shortlist of statues, it is clear that by not legally recognising same sex relationships, these couples experience great losses, both in terms of financial incentives and other protections and benefits placing them at a disadvantage regardless of the length of time that they live together in a monogamous, loving, and committed relationship. However, while same sex couples lack the legal recognition given to married couples, it is important to note that their rights and freedoms, at the very least, has been recognised with the enactment of the Human Rights Act 1998. By incorporating Article 14 of the European Convention of Human Rights and Freedoms under domestic laws, the rights of same sex couples, and gays and lesbians in general, against discrimination are recognised. However, while this is true, such recognition is still inadequate because invoking Convention Rights under the Human Rights Act requires judges to “[s]o far as possible to do so … read and [give] effect [to legislation] in a way which is compatible with Convention rights” (Human Rights Act, s.3). Unfortunately however, this is a task in which according to Lord Nicholls, “the courts, including your Lordships’ House, are still cautiously feeling their way forward as experience in the application of section 3 gradually accumulates” (Ghaidan v Godin-Mendoza [2004] UKHL 30, para. 27). However, while Article 14 of the European Convention recognises that all individuals should not be discriminated against on the basis of sex, Article 12 of the same declaration states that “[m]en and women of marriageable age have the right to marry and found a family, according to the national laws governing the existence of this right”. Thus, while protection from discrimination is a right that must be recognised at all costs, marriage, as a human right, is subordinated to the current laws of the United Kingdom, such that each country under Article 12 still has the final decision regarding the rights to marry and build families (Herring 2001: 42). Other similar developments in this respect include changes under the Adoption and Children Act 2002, which allowed same sex couples to apply for joint adoption; the Domestic Violence, Crime, and Victims Act 2004, which redefined the term “cohabitants” to include same sex couples; and the Gender Recognition Act 2004, which allowed transsexuals to marry individuals of an opposite gender to his or her acquired gender (cited in Gray and Brazil 2005: 2-3). However, like the inadequacies of the Human Rights Act, these piecemeal legislations still does not give same sex couples the same legal status of married couples, but only recognition under certain areas of the law. In this respect, the enactment and coming into force of the CPA is therefore an important step in recognising same sex relationships because it provides these couples with the same rights and protections available to married heterosexual couples, without requiring the need for statutory interpretation under the Human Rights Act. The Civil Partnership Act 2004 Under the CPA, same sex couples are given the rights, protections and responsibilities similar to married couples. Among the Act’s salient provisions include the registration of civil partnerships under a system of registration where rules are provided to govern the creation, dissolution, and nullity of the civil partnership similar to the processes undergone by a marriage as delineated under Chapters 1 and 2. Thus, by bearing similar procedures as that of a marriage (Gray and Brazil 2005: 4), same sex couples will therefore receive the same rights and responsibilities, as well as financial burdens, experienced by heterosexual couples either planning to get married or undergoing the process of divorce or annulment. Moreover, through the Act, same sex couples who register as civil partners will also be treated as husband and wife by the law where they can claim financial relief from each other under British courts under article 72 and Schedules 5 to 7 of the Act similar to the provisions under the Matrimonial Causes Act 1973, Domestic Proceedings and Magistrate Courts Act 1978, and the Matrimonial and Family Proceedings Act 1984 (Gray and Brazil 2005: 4). With respect to wills, administration of estate, and family provisions (Art. 70), the Act also amends current legislation to ensure that civil partners are treated similarly as spouses. The same treatment is also given with respect to fatal accident claims under Art 83 of the Act; and succession with respect to housing and tenancies as stated in Art 81 and Schedule 8 of the Act. With respect to pensions and Social Security benefits, the Act also amends current legislation to award civil partners similar tax credits as those enjoyed by married couples, as well as ensure that surviving civil partners are treated as widowers under Section 11 of the Married Women’s Property Act 1882 (CPA, Art 70). With respect to children, the Act amends the Children Act 1989 by inserting the phrases “or a civil partner of” with respect to the acquisition of parental responsibility (CPA, Art 72§2) and “or civil partner” with respect to financial provisions for the child (Art 78§3); and by including civil partners as among those entitled to obtain parental responsibility (Art 75), guardianship (Art 76), apply for residence or contact order (Art 77), and receive financial provisions for children (Art 78) giving same sex couples registered as civil partners the same rights and responsibilities as parents. The Act also amends the Adoption Act 2002, where the term couple was made to include “two people who are civil partners of each other” as stated in Art 79§12 of the Act. It should be noted however, that these rights, protections, and responsibilities are given to same sex couples not under the institution of “marriage” per se but under that of a “civil partnership”. The distinction made between civil partnerships and marriage is an important aspect of the Act within the context of discrimination against same sex couples because on one hand, while it elevates the legal status of these couples under the law and provides rights and responsibilities almost identical to married couples such that as Liberty claimed in 2003, it is “marriage in all but name” (Kitzinger and Wilkinson 2004: 128); on the other hand, the creation of a separate institution questions why the legislation did not opt for same sex marriage in its entirety. Same Sex Relationships and the Civil Partnership Act As mentioned, understanding the CPA with respect to the discrimination of same sex couples requires understanding the difference between a marriage and a civil partnership, as well as the implications these terms entail. According to Peel and Harding (2004), this distinction can be understood through the difference between formal equality, where “the law applies in exactly the same way across different groups”, and substantive equality, where “the law applies differently to different groups, but the impact of the law is equitable” (593). Hence, while marriages and civil partnerships are essentially identical in terms of their rights, protections, and responsibilities; there lies a significant difference in the manner that marriages entail both formal and substantive equality for heterosexual couples while civil partnerships only entail substantive equality if one compares same sex couples with heterosexual couples. As noted by the Women and Equality Unit in 2003, “[t]he Government is content that proposed arrangements [under the CPA] for civil partnership registration are consistent with the principle of equal treatment” (cited in Peel and Harding 2004: 593), indicating hesitation on the part of law makers and the Government to extend formal equality. Hence, while same sex relationships legally enjoy characteristics of marriage, they still do not possess the “label” it is attached to. This therefore indicates discrimination in the manner that same sex couples are formally recognised under the law. The hesitation to extend formal equality seems to be rooted on the European view of marriage as essentially “traditional normative prescriptions of Christian morality” (Rigaux 2003: 205). As Justice Berger describes Blackstone’s comments on same sex relationships they are “’the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act ‘the very mention of which is a disgrace to human nature’” (cited in Rigaux 2003: 203). While it is arguable that the recognition of civil partnerships may not necessarily be an indication of the Government’s hesitation to recognise same sex relationships as a marriage; but instead is an indication further relaxation of the laws that may lead to the formal recognition of same sex marriages, the generous provision of rights and protections given to civil partnerships under the CPA actually removes the need for formal equality of same sex relationships. According to Rigaux, by fixing “the extreme boundaries of what is tolerable”, registrations such as civil partnerships will, in reality, prevent lawmakers from further extending the rights of same sex partners quashing attempts for further advancement (2003: 204). The same view is adopted by Peel and Harding (2004: 593). It should be noted, however, that this essay is not making a case for same sex marriages, but is simply stating that if eliminating discrimination against same sex relationships is the goal of the CPA, then it fails to achieve this objective in its reluctance to extend formal equality and only succeeds in giving these couples extended rights. Furthermore, aside from denying same sex relationships with formal equality, the CPA also fails in preventing discrimination through the its adopted language and concepts. The Act does not prevent discrimination per se, instead it only ensures that discrimination under current laws are avoided (Gray and Brazil 2005: 5). By indicating which areas of the law same sex relationships should be given due recognition, there is nothing in the Act that prevents these couples to be discriminated against in areas unmentioned. Hence, if protection against discrimination is a human right recognised by the Human Rights Act just as individuals must be protected against torture or violations of their liberties, then same sex relationships should also be protected not only against violations under current laws but also against possible future violations. By failing to achieve this form of protection, the CPA therefore fails to prevent future violations against same sex relationships making it unable to prevent discrimination entirely. The impact of the CPA with respect to the legal recognition of same sex relationships should therefore be qualified. Hence, while it is undeniably preferable for same sex relationships to receive the rights and protections under the Act indicating a step towards the right direction, it is still inadequate insofar as eliminating discrimination is concerned, such that individuals must be wary in ensuring that further discrimination on acts not yet recognised under current laws do not take place. Heterosexual Relationships and the Civil Partnership Act The impact of the CPA, however, is not limited to same sex relationships directly affected by the Act alone. Instead, such landmark legislation will have significant effects both on family law in general, and unmarried heterosexual couples in particular. With respect to unmarried heterosexual couples, these relationships prior to the Act have had the same legal status and received the same rights and privileges as same sex relationships. Under the Social Security and Contributions Act, for example, section 137 treats unmarried couples and same sex relationships similarly, where they are defined as “a man and woman who are not married to each other but are living together as husband and wife”. Thus, they both enjoy the same privileges and suffer the same disadvantages under the said legislation, given their legal status as an unmarried couple. In this respect, by giving same sex couples an elevated status under the law through an institution that is substantially similar to but formally different from marriage compared to unmarried couples, it can potentially create the momentum for unmarried couples to pressure the government in creating a similar institution, where heterosexual couples can enjoy its substantive benefits without the formal label attached to marriage. Thus, sparking a similar movement based on the assumption that they are, under law, substantially equal with same sex relationships. Furthermore, as individuals against same sex marriages and civil partnerships argue, such arrangements would “put marriage on a slippery slope and remove any barrier to incestuous and polygamous marriages” (Rigaux 2003: 205). This fear is based on the conservative view that same sex relationships are essentially polygamous such that steps taken to further recognise them will lead to negative consequences on traditional married couples. According to the Times, however, in referring to the then Civil Partnership Bill, . . . far from undermining marriage the Bill encourages the long term commitment and mutual support that make marriage such a benefit to society. Gay couples will not enter lightly into civil partnerships, for their dissolution will be as complicated and painful as divorce. In order to avail themselves of the tax and legal advantages of a civil partnership they will also have to take on the responsibility to care for each other and live together as a loving and supportive couple. (cited in Mallender and Rayson 2005: 2) The effect of the CPA on marriage as an institution however can only be speculated for now. Given its recent enforcement, only time can tell what its significant effects on society will be. Conclusion As this essay has illustrated, same sex relationships have suffered an injustice under the law due to its lack of legal recognition. The CPA in this respect, by giving same sex relationships legal recognition under a civil partnership is therefore a significant landmark legislation to protect the rights of same sex partners, giving almost identical rights and responsibilities as married couples. However, while the Act is commendable from a rights point of view, it cannot be denied that the Act still falls short in eliminating discrimination against same sex partners and preventing further discrimination in the future, such that it failed to create safeguards under the law to ensure that the rights of same sex partners are still protected in future legislations. What it succeeded in achieving instead, is simply removing discrimination in current laws. This form of inadequate protection resulted from the distinction that the Act makes between a civil partnership and a marriage, where unlike marriages that enjoy both formal and substantial equality; civil partnerships lack formal equality under the law. Thus, under the CPA, while it allows same sex couples to receive equitable impact under the law, the laws are still not applied to them in exactly the same manner as other groups in society. The Act therefore, did not eliminate discrimination, but instead only prevented same sex couples from complaining about discrimination. References Gray, N. and Brazil, D. (2005) Blackstones Guide to the Civil Partnerships Act 2004. London: Oxford University Press. Herring, J. (2001) Family Law. 2nd Ed. Essex: Longman. Kitzinger, Z. and Wilkinson, S. (2004) ‘The re-branding of marriage: Why we got married instead of registering a civil partnership’, Feminism & Psychology. 14(1): 127–150. Mallender, P. and Rayson, J. (2005). The Civil Partnership Act 2004: A Practical Guide. London: Cambridge University Press. Peel, E. and Harding, R. (2004) ‘Divorcing romance, rights and radicalism: Beyond pro and anti in the lesbian and gay marriage debate’, Feminism & Psychology. 14(4): 588–599. Rigaux, F. (2003) ‘Same-gender marriage: A European view’, Journal of Family History. 28(1): 199-207. Cases and Primary Legislation Adoption and Children Act 2002 Adoption (Scotland) Act 1978 Civil Partnership Act 2004 Domestic Violence, Crime, and Victims Act 2004 European Convention of Human Rights and Freedoms Family Law Act 1996 Fertilisation and Embryology Act 1990 Ghaidan v Godin-Mendoza [2004] UKHL 30 Gender Recognition Act 2004 Human Rights Act 1998 Local Government Act 1988 Rent Control Act 1977 Social Security Contributions and Benefits Act 1992 Read More