Marriage under the UK Act - Essay Example

The Civil Partnership Act 2004 was always an unsatisfactory compromise between giving some legal recognition to same-sex relationships while preserving the special status of marriage. The Marriage (Same Sex Couples) Act 2013, when brought into force, will give same-sex couples the status they desire.’ Total word counts 2292 excluding footnotes, topic page , bibliography , list of statutes , list of case laws . Marriage under the UK Act A UK citizen can get married or can form into a civil partnership provided if he or she has completed 16 years. A UK citizen is free to enter into a civil partnership or free to marry one from the opposite sex if he is divorced, widowed or single and such persons should not be closely related. . In UK, marriages have to be registered under the Marriages Act, 1949. For registering a civil partnership or a marriage, one should give atleast 16-day prior notice at his or her local register office. Such notice will be displayed in the register office for 15 days for the public view. A religious marriage can occur at a chapel, a church or other religious places registered for this purpose. After a civil ceremony in a registered office, religious blessings can happen. If one’s marriage is conducted at an Anglican Church, then there is no need to give notice to the register office as the church official who is conducting the marriage will register such marriage. One has to exchange wedding vows in case of a marriage. In case of civil partnership registration, there is no need to exchange vows but one can do so if he desires. There should be atleast two witnesses for registering a marriage or a civil partnership and the applicant has to remit a fee of £45 to the register office. Further, for getting the certificate of civil partnership or marriage, one has to pay £4 on the day of event or £ 7 after the day of the event.1 Civil Partnership Act 2004 Under Civil Partnership Act 2004, the same sex-pair has the analogues’ legal privileges and accountabilities as married heterosexual pairs. Further, under the Act, such same-sex partners are entitled to get divorced as in the case of marriages of opposite sex pairs. Despite the fact that the civil partnerships between same-sex couples have been recognised from the year 2004 onwards but there is no valid acknowledgement of marriage between same-sex pairs in the 2004 Act whereas it has been recognised in the 2013 Act2. The Marriage (Same Sex Couples) Act 2013 The 2013 Act remains distinct from the Marriages Act, 1949 as the new Act 2013 permits the same-sex pairs to marry like the opposite-sex pairs. Thus, the 2013 Act offers the legal provisions which are mostly analogues’ and offer married same-sex partners the analogues legal sanctity as heterogeneous married couples. Under the 2013 Act, the phrase “married couple” and “marriage “is now covering to include same-sex pairs. The Marriage (Same-Sex Couples) Act, 2013 is to guarantee that equal marriage right is available to both opposite sex couples and the same-sex couples. However, according to Part 3 of Schedule 4 of the Act states that the difference between the two forms of marriage still exists. For same-sex couples, non-consummation will not be considered as a footing for the cancellation of marriage relationship whereas it is still applicable to the opposite-sex couples. The application of adultery will be confined to the opposite-sex couples only. The 2013 Act has been modified the Matrimonial Causes Act, 1973 to include a condition that “only demeanour between the respondent and an individual of the opposite sex may be tantamount to adultery for the purpose of this section. Hence, same-sex couples would fail to get a divorce footed upon the adultery ground despite the fact that any suspected infidelity with another individual of same- sex, which could be employed as a proof of adultery in supporting for a divorce application3. Further, 2013 Act also has made some amendments to the Gender Reassignment Act 2004, as it will now be feasible for a transgender individual to get married after transforming their gender, except with the approval of their spouse. Earlier, a statutory declaration has to be made if an application is to be made for a Gender Recognition Certificate (GRC), and such declaration should state whether or not the applicant is in a civil partnership or married, as obtaining the GRC would connote that there is no more civil partnership or marriage exists between such partners. Due to 2013 Act, this anomaly has been removed as a married individual who applies for a GRC may still remain married with the consent of their spouse.4 A same-sex marriage remains discrete from a civil partnership, despite the fact that couples might have already entered into a civil partnership, and such relationship can be now transformed into a marriage under the 2013 Act through an application. Thus, under the 2013 Act, resulting marriage will be deemed to have entered into from the date of their civil partnership. Opposing the 2013 Act, conservative critics are of the opinion that same-sex marriage cannot be regarded as equivalent to that of opposite-sex marriage.5 2013 Act facilitates the same- sex pairs to get married in public places like the opposite sex couples, to perform their marriage in the religious ceremonies or in civil ceremonies. It facilitates the married individuals to shift their legal gender without putting a full-stop to their marriage. Availability of legal marriage status to all couples reveals how UK society offer regard for individuals wishes in spite of their gender. Both under Civil Partnership Act 2004 and under the Marriage (Same-Sex Couples) Act 2013, those same-sex marriages convened under the laws of foreign countries will be recognised as valid marriages in UK also. However, under the 2013 Act, there is no provision for the civil partnership arrangements entered under the foreign laws to be legally recognised as same-sex marriage in UK. The 2013 Act recognises that same-sex couples can live together without marriage, and they will be regarded as cohabitating couples. The 2013 Act is silent about the presupposition of parentage. It states that where a kid is born to a woman when she is in marriage with another woman, presumption is not available to the issue of who is the parent of the kid.6 However, there exist major variances between the two Acts. Under the 2013 Act, the civil partners do not possess the analogues’ pension privileges as married pairs. If there is a death of one civil partner, the surviving partner of same-sex couples will receive a lower share and duration of payment of pension is also for a lesser period as considered to opposite sex couples or married couples. The main objective behind this is that the pension entitlement of a surviving partner is arrived at differently footing upon whether these couples have been married or lived in civil partnership. Public sector civil partner schemes are available since 1988 and from the year 2004 onwards, private sector schemes are also available to the civil partners. However, for the married pairs, an existing partner is authorised to receive the pension which is footed upon the number of years of contribution made to the pension fund by the spouse. Supporters are arguing that non-availability of marriage equality traditionally has established a great legal chaos for transgender people. It is really unfortunate that both the 2004 Act and 2013 Act failed to consider the legal status of transgendered people. The 2013 Act offer recognition to those same-sex pairs who want to marry, and if they marry, it will give legal sanctity. However, the 2013 Act is silent about the civil partners who do not want to marry. Thus, these differences connote that UK marriage law does not offer legal sanctity to civil partnership thereby paving the way for varied treatment of gay couples. Critics are arguing that the UK government is not recognising civil partnerships to same-sex couples thereby paving the way for another controversy.7 In Bellinger v Bellinger8, it was observed by Lord Nicholls that a marriage is an association, or an institution, firmly entrenched in the social and religious culture of UK and a marriage is always recognised as a relationship between two individuals of the opposite sex. It is to be noted that the CPA 2004 was enacted immediately after the verdict held in Bellinger v Bellinger and a legal recognition is given to civil partnership for same-sex couples living together9. In Westminster City Council v IC10, the Court of Appeal held that where a susceptible adult who was a transgender but got married with a Bangladeshi woman through telephone, such marriage was invalid under the UK law. In this case, the Court of Appeal did not acknowledge a marriage which was legally legitimate in Bangladesh. However, there are divergent opinions of the objective of marriage in this case11. In Wilkinson v Kitzinger12, there was an appeal against lower court verdict and for a declaration of marital status under s 55 of the Family Law Act 1986. The court had to decide whether this had infringed the appellants’ privileges under the ECHR13. In this case, the appellant claimed that their same-sex marriage that was recognized under Canadian law should be acknowledged under the UK laws. He also contended that if no recognition is given to their marriage in UK , then , both chapter 2 & 5 of the Civil Partnership Act 2004 and the s 11 (c)of the Matrimonial Causes Act ,1973 are to be declared to be irreconcilable with the Human Rights Act ,1998. According to s 11 (c) of the Matrimonial Act, 1973, a marriage between those parties who do not belong to opposite sex shall be void. Civil Partnership Act defines the civil partnership as an affiliation between two persons of the same sex who are called as “civil partners.” The registration of such partnership is essential under the CPA 2004 and chapter 2 of Part 5 recognise such partnership in UK by the fact of having registered an overseas relationship. However, in this case, a reference was made to Vervaeke v Smith14, where it was held that there had been an overwhelming obstacle offered by s.11(c) to acknowledgment of same-sex marriage as legitimate in British law and UK courts normally will refuse to acknowledge or give validity to a proper foreign rule of law, if do so, it would be regarded as against the British public policy. Now, the verdict given in Wilkinson v Kitzinger holds no longer good as under the Marriage (Same-Sex Couples) Act 2013, those same-sex marriages convened under the laws of foreign countries will be recognised as valid marriages in UK also. In Estevez v Spain15,a Spanish homosexual man asserted that Spanish government infringed the Article 8 and Article 8 ECHR as the Spanish government failed to offer him a social security allowance which is payable to surviving spouses immediately after the demise of his partner and however, his claim was turned down. Nonetheless, under the 2013 Act, a partner of the same-sex couples can make a claim for pension, and this is one of the salient features of the 2013Act16. In Re G17, a question arose with which parent , a kid should live whom was conceived by same-sex couples with the help of synthetic insemination .Both the High Court and the Court of Appeal decided in favour of non-birth mother as the birth mother removed the kids to Cornwall intentionally to bar her earlier partner’s association with the kids. House of Lords, in this case, turned the above decision by observing that the lower courts did not pay much significance to the issue that the birth mother was the biological mother and hence, kids should live with her only18. In T V B19, where a lesbian pair who had resided together for long years but were not civil partners, had undergone fertility treatment and had a kid. Later, they separated and the biological mother sued non-birth mother for a financial provision for taking care of the kid. In this case, the court held that non-birth mother had no financial commitment as she was not a legal parent. To remove these anomalies, the law in UK was transformed on 6 April 2009 to permit the names of the two mothers (same-sex couples) can be entered on the birth certificate, acknowledging both of them as the parents of the kid and binding both of them with financial accountability.20 Unlike the Civil Partnership Act 2004, the Marriage (Same Sex Couples) Act 2013 is offering same-sex couples legal status to marriage if they want to marry as that of opposite-sex couples. Further, it gives recognition to same-sex marriages convened under the laws of foreign countries will be recognised as valid marriages in UK also. 2013 Act, gives right to a transgender who applies for a GRC may still remain married with the consent of their spouse. 2013 Act facilitates the same- sex pairs to get married in public places like the opposite sex couples. The 2013 Act recognises that same-sex couples can live together without marriage, and they will be regarded as cohabitating couples. Under the 2013 Act, the surviving partner of same-sex couples will be eligible to claim pension. A partner of the same-sex couples can make a claim for pension, and this is one of the salient features of the 2013Act. Thus, the availability of legal marriage status to all couples reveals how UK society offer regard for individuals wishes in spite of their gender. Bibliography Books Freeman M & Smith F, Law and Language: Current Legal Issues-Volume 15 (1st edition. Oxford University Press 2013) 362 Harris-Short S & Miles J, Family Law: Text, Cases and Materials (2nd edition, Oxford University Press 2011) 49 Mallender P& Rayson J, The Civil Partnership Act 2004: A Practical Guide (1st edition, Cambridge University Press 2005) Murphy J, International Dimensions in Family Law (1st edition, Manchester University Press 2005) Oldham M, Blackstone’s Statutes on Family Law 2013-2014 (1st edition, Oxford University Press2013) Probert R, Family Life and the Law: Under One Roof (2nd edition, Ashgate Publishing Ltd 2007)187 Wallbank J & Herring J, Vulnerabilities, Care and Family Law (1st edition, Routledge 2014) Welstead M & Edwards S, Family Law (1st edition, Oxford University Press 2013) Web Resources Richard, ‘Review on Same Sex Marriage ‘(19 December 2013) < http://www.nataliegambleassociates.co.uk/blog/tag/lesbian-divorce/> accessed on 7 February 2014 Filar R,’The Seven Ways Civil Partnership isn’t the same as Marriage ‘(25 January 2013) < http://www.gaystarnews.com/article/seven-ways-civil-partnership-isnt-same-marriage250113> accessed 7 February 2014 Familylaw.co.uk, ‘Local Authority / Marriage ‘(18 March 2008) http://www.familylaw.co.uk/articles/westminster-city-council-v-ic-2008-ewca-civ-198> accessed 8 February 2014 Allman M, Marriage (Same Sex Couples) Act 2013: Top Ten Guide. accessed 7 February 2014 Cox J, ‘The Introduction of Same Sex Marriage ‘(30 September 2013) < http://www.creighton.co.uk/news/2013/09/30/the-introduction-of-same-sex-marriage> accessed 7 February 2014 Case Laws Estevez v Spain Bellinger v Bellinger [2003] 2 AC 467 at 480 para 46 Wilkinson v Kitzinger [2006] EWHC 2022 (FAM), Vervaeke v Smith [1983] AC 145 at 164C Westminster City Council v IC [2008] EWCA Civ 198 Acts Family Law Act 1986 Matrimonial Causes Act, 1973 Human Rights Act, 1998 Civil Partnership Act 2004 The Marriage (Same Sex Couples) Act 2013 The Marriages Act, 1949 Gender Reassignment Act 2004 Courts European Court of Human Rights (ECHR) Court of Appeals Read More