The Marriage (Same Sex Couples) - Essay Example

The Marriage (Same Sex Couples) INTRODUCTION The importance of marriage changes over the world. It is hard to characterize marriage in a manner that could apply to all marriages, because that marriage implies whatever the couples who are marrying take it to mean. In this sense, marriage is a matter of discernment. The trouble with characterizing marriage reflects the diversity of our society in terms of social, cultural, religious and ethnic terms. The law in Britain has looked to perceive marriage as an agreement or a status symbol.1 Recently, the meaning of traditional marriages has been changed with the approval of same sex couple marriages, which raised several questions and legal considerations. Though, civil partnership act gives same-sex couples with comparative legitimate rights that are given to spouses, the typical noteworthiness of not permitting same-sex marriage is far more prominent than the lawful outcome. It is of great importance to have an insight of the legal considerations and the rights of same sex couples before making any sort of comments about this. What is Same Sex Marriage? Same-sex marriage (also known as gay marriage) is marriage between two persons of the same sex sex/gender. Legal recognition of same-sex marriage or the likelihood to perform a same-sex marriage is some of the time alluded to as marriage equality or equivalent marriage, especially by supporters.2 The primary laws in modern times, empowering same-sex marriage were established amid the first decade of the 21st century. In May 2013, thirteen nations (as Netherlands and Argentina), and a few sub-national administrations (parts of Mexico and the United States), permit same-sex couples to wed. Uruguay and New Zealand have both sanctioned laws to legitimize same-sex marriage, which has come into energy in August 2013. Same-sex marriage laws have differed by jurisdiction, being differently treated through anauthoritative change to marriage laws, a court decision focused around protected certifications of fairness, or by immediate prominent vote. The acknowledgement of same-sex marriage is a political, cultural, rights issue, and even a religious issue in numerous countries. Debates are continuously rising on the hot topic whether same-sex couples ought to be permitted for marriage, be obliged to hold an alternate status. Permitting that couples to wed lawfully is thought to be a standout among the most imperative of all human and civil rights (also known as LGBT rights.3) Gay marriage has been a discriminating point in numerous nations for ages. Around the year 2000, nations, e.g. America and the United Kingdom began affirming gay marriages, despite the fact that not everybody concurred with this choice. Still in 2013, gay people was battling for this goal. Individuals against gay marriage feel that in the event that it was to be sanctioned, the vitality of marriage would blur away and some individuals would allude to marriage in an alternate manner. As indicated by an article from the Human Rights Campaign, there is nothing the issue with permitting gay people to have the same rights as the individuals who are heterosexual. Each distinct individual ought to have equivalent rights, paying little respect to sexuality. Gay marriage ought to be legitimized in all states and nations, as it has been held off for a really long time.4 Distinction between Homosexual Couples and Heterosexual Couples With the introduction of the Marriage 2013 Act, the distinction between heterosexual and homosexual couples have disappeared rapidly because many states and nations who have legally recognized same sex marriages have also offered them equal rights like heterosexual couples. If we consider same sex couple marriage in the light of human rights, then it is absolutely fair to legally recognize gay/lesbian marriages but if we consider it under the true essence of marriage then it is a controversial topic in many nations. The traditional reason for the marriage has dependably been to join a man and a woman in a relationship so they can begin and raise a family characteristic. People meet experience love feelings for, get hitched and have babies. As same sex couple marriages are diverse to the heterosexual marriage idea, consequently, before consenting into marriage as a same sex couple one must first ponder a couple of issues about how they need to structure their relation. Having children, mutually owning property, splitting property, responsibilities such as taxes or divorce are things that any couple ought to consider when they choose to wed. For homosexual people these inquiries may require more thought that they would in the event that is heterosexual. One very important question is child. If one accomplice in the same sex marriage is the guardian does the other accomplice consequently get authority if that accomplice dies? Some would think yes, yet not in all cases. For most, if one partner has a kid they have no lawful rights to the kid. There are a number of countries that do not allow singles and same-sex couples to adopt a child, which is the most common way to become parent for gay couples. Many organizations, even in some states where same sex marriages are legally recognized do not permit gay or lesbian couples to adopt a child for which such couples have to go through lengthy legal procedures to get their rights.5 Same Sex Marriage in UK The same sex marriages are legally recognized in England and Wales (the Marriage (Same Sex Couples) Act 2013) and in Scotland (the Marriage and Civil Partnership (Scotland) Act 2014). The law will likewise empower civil partners to convert their relationship into marriage, and will allow transsexual individuals to change their gender without essentially needing to end their current relationship/marriage.6 In England and Wales the same sex marriages are recognized by The Marriage (same-sex couples) Act 2013 and the first marriage under this act took place on March, 29th 2014. The act is bounding couples to marry in a Church anywhere in England or Wales or in any other building registered for the purpose. The Marriage and Civil Partnership (Scotland) Act 2014 is offering a base for the same sex marriages and civil partnership in Scotland. There is no stipulation made by the Act to marry in a specific place therefore, same sex couples can marry anywhere but it is necessary to mention the marriage schedule. Prior to the approval of The Marriage and Civil Partnership (Scotland) Act 2014, in Scotland the Marriage (Scotland) Act 1977 and the Civil Partnership Act 2004 were in power.6 Civil Partnership The Civil Partnership Act 2004 made a union for same sex couples which is similar in many ways but cannot be assumed as identical, to marriage. According to this act civil partners have the same rights and obligations just like a married couple in many regions of England and Wales. At the point when civil partnership was proposed, the Government's (previous government) expressed perspective was that was not important to stretch out eligibility to opposite sex couples because they are already allow to get married and the legal outcomes of the two organizations were fundamentally the same. At the point when sanctioned, the Civil Partnership Act 2004 banned the registration of civil partnership on religious premises. They can take place like civil marriages in a registered office or venue, for example in a hotel. In any case, a change in the law, which came into effect on 5 December 2011, now empowers civil partnership to be registered on a religious premise. In such a situation, religious authorities and organizations license this, and allow them to arrange a marriage ceremony at a registered religious premise. The new law additionally states that there are no obligations on the religious organizations to host civil partnership registration if they do not want to host it.7 Similarly in Scotland, the Scottish Parliament showed consent on the Westminster Civil Partnership Bill on 3 June 2004 by Legislative Consent Motion (LCM). This permitted same sex couples to get to an extensive bundle of rights and obligations in all reserved and regressed areas throughout the UK. The Civil Partnership Act 2004 contains a list of different provisions that are reflecting enactment and practices applicable in Scotland. 7Civil Partnership Act 2004 As part of this law, civil partners are not allowed to arrange their wedding ceremonies in religious premises. The Scottish 2014 Act will amend this and will allow civil partners to be registered on a religious premise. Before the introduction of the marriage (same-sex couples) Act 2013, in England and Wales civil partnership was only “civil” however, in some circumstances civil partners were allowed to choose a religious or a civil marriage ceremony after getting an approval from the religious organizations. Civil Partnership Law for registering a building The 2013 Act is created by making certain amendments in the Marriage Act 1949 are made to create a new law for the same sex couples. In this regard we can assume that the new act would highly support civil partnership. Under section 43A in the 1949 Act, civil partners are allowed to register a certified place for religious activities and worship for the solemnization of same sex couples marriages. Under section 26A(3) of the 1949 Act, the governing authority of the concerned religious organization for the building must have to show their consent for same sex couples marriages. According to the section 43A(3) of the 1949 Act, the application must have the copy of the certificate provided by the governing body of that religious organization as an evidence of their consent. This is the responsibility of the Registrar General to make required regulations in accordance with section 43A such as the marriage of same sex couples and registration of buildings.8 8 the Marriage Act 1949 In 1949 Act, sections 44A-44C are allowing the same sex couples to registered those religious worship buildings for the same sex couples marriages that are used by two or more religious organizations. Such buildings are also called shared buildings. The 1949 Act has also some sections that are empowering the governing body of the religious organizations who do not want to solemnize same sex couples marriages, to reject an application. Section 44A has emphasis on the consent of all the religious organizations who are sharing a building. If anyone organization is not giving their consent, the building cannot be used for solemnizing same sex couple marriages. According to the section 44B of the 1949 act, a trustee or proprietor or any organization that is using the shared building for religious purposes could file an application for the cancellation of the event under which the building would be used for solemnizing of the same sex couples. The 2013 Act uses an amended version of the 1949 Act for shared buildings and is applicable to only those shared buildings subjected to the 1969 act. Currently, in Scotland, only registrar has power to register civil partnership. In England and Wales, individuals whether same sex or opposite sex needs to get permission from their parents for getting married if they are of 16 or 17 years old. However, in Scotland, individuals of 16 years old are allowed to get married without taking permission from their parents.9 Divorce or Separation between Civil Partners Compared to heterosexual or opposite sex couples, the same sex couples are more likely to change their minds after some time of their relationship. 9 Herring J, Family Law, 6th Edition Same sex couples married in England and Wales yet remain or get to be periodically inhabitant or domiciled in another country for any reason will be unable to end their marriage in that country especially if that country does not recognize civil partnership or same sex couples.10 The amendments of Domicile and Matrimonial Proceedings Act 1973 gives a "Jurisdiction of last resort" for the convenience of those same sex couples who are not able to separate or get other matrimonial orders in that country which would usually have jurisdiction can have their case heard in England and Wales. The courts in England and Wales will have the capacity to consider jurisdiction if the couple were tied up in a relation in England or Wales and where it is the diversions of equity to do so. Section 3 of Schedule A1 gives that the court has power to manage an application by one of a couple for a request which ends their marital relation because of the death of their spouse, given that at the time the application was made the High Court did not have locale under the Presumption of Death Act 2013 to hear an application for an announcement that the candidate's mate is assumed dead, the two individuals concerned married under the law of England and Wales and it seems to the court to be in light of a legitimate concern for equity to manage the case. Schedule A1 (paragraph 5) empowers the Lord Chancellor to make regulations about the administration of the courts to manage separation, divorces and nullity cases and other issues about the recognition of such requests for a married same sex couple. These regulations would apply where one of the few: is or has been frequently occupant in a Member State of the European Union (EU), or is an EU national, or is domiciled in a piece of the UK or the Republic of Ireland.11 10 Domicile and Matrimonial Proceedings Act 1973 11 Death Act 2013, England and Wales As the civil partnership law in Scotland will be implemented by the end of 2014 the law has some clear provisions about divorce and legal separation between same sex couples. According to section 1(2) of the 1976 Act, there are numerous ways in which the lost breakdown of a marriage might be built. One of those ways is infidelity. Infidelity implies in the normal law sexual intercourse between two opposite sex people, i-e, a man and a woman. Subsection (3) gives that adultery has the same importance for the purposes of the 1976 Act for same sex marriage as it does for opposite sex marriages in the same way like heterosexual intercourse only. This implies that a mate in a same sex marriage could, like a mate in an inverse sex marriage, raise his/her voice for separation saying that the marriage has broken down hopelessly in light of the fact that the other partner in the marriage has submitted infidelity (i.e. had sex with an individual of the opposite sex). However, according to subsection (3) there is no extension in respect to infidelity to base sexual activity between individuals of the same sex. In this regard, the courses of securing irretrievable breakdown of a marriage stay unchanged. None, of these an inverse sex companion nor a same sex partner can raise objection for separation saying that the marriage has separated hopelessly in light of the fact that the other party in the marriage has had sex with an individual of the same sex. Rather, the separation activity would have to put forward other valid reasons for irretrievable breakdown, such as 'unreasonable behavior'.12 Rights of Married and Civil Partners Access to certain tax reliefs and exclusions, including relief from inheritance tax for exchanges of assets between civil partners or spouses. 12Same Sex Marriage Act 1976 Employment benefits State and occupational pension benefits Ability to seek parental obligation as a step-guardian of your partner or civil partner's child Tenancy Agreement inheritance Recognition under intestacy as a result of the death of civil partner or spouse Claim to fatal accidents remuneration Recognition for migration and nationality purposes A right to request disintegration/separation (civil partners) or separation (marriage) or revocation to bring your legitimate relationship to an end Eligibility to request financial provisions after the end of marriage or civil partnership Cohabitants Cohabitants are the two adults who are living an intimate relationship but are not spouse and civil partners. Where enactment alludes to a couple who are not married yet are living together like married couples, this will incorporate same sex couples (Schedule. 3) who may be dealt with as living together as a married couple.13 There is additionally an assortment of enactments after the Civil Partnership Act which alludes to couples living together as civil partners. In a few circumstances the provisions are diverse relying upon whether a few are living together just like married couples or whether they are living together as if they were considered as civil partners. 13Marriage (Same Sex Couples) 2013 Act (Sch.3) Schedule 3 in the 2013 Act particularly foresees this and gives that where this is the situation the same sex couple will be dealt with just as they are living together just like civil partners as opposed to living together as a married couple. The Scottish case of Gow vs Grant that was held in 2012 based on the Family Law (Scotland) Act 2006, section 28 gives a better understanding of the rights of the cohabitant couples. This delivered a milestone judgment giving extra rights to cohabitants on the breakdown of their relationship. The case was focused around the Family Law (Scotland) Act 2006, area 28, which permits a cohabitant to apply to the court for monetary procurement where the cohabitation ends otherwise than by death of one of the cohabitants. Mrs Gow could assert fiscal easing from Mr Grant as she could demonstrate that she had experienced financial disadvantages as a result of the cohabitation. Lady Hale expressed that the law in Scotland is honorable as it doesn't" "force upon unmarried couples the obligations of marriage however reviews the increases and misfortunes spilling out of their relationship. English and Welsh cohabitants and their kids deserve no less." She said that it is the right of English and Welsh cohabitants merit their rights to be secured on breakdown of their relationship and that is precisely what is happening in Parliament now. The Cohabitation Rights Bill 2013-2014 had its first perusing in the House of Lords at the start of October. This Bill will furnish cohabitants with extra rights and this is unmistakably required when one takes a notice of the increasing numbers of cohabitants in England and Wales.14 The new law will provide a number of rights to the cohabitants. Some of the rights are as follow. Both partners will consider as mother, father or parent of their child. In this regard both 14 Scottish case of Gow vs Grant (2012) Family Law (Scotland) Act 2006, section 28 Cohabitant partners will be bound to meet parental responsibilities. Cohabiting couples have a right to enter into a contract to regulate their relationship and property rights. Cohabitants get benefits, in a comprehensively comparative manner to married couples, from the security rights accessible under Part IV of the Family Law Act 1996, which is intended to manage domestic violence. According to this Act home-sharers and previous home-sharers (including same sex couples) can apply for non-molestation orders. The Domestic Violence Crime and Victims Act 2004 expanded these provisions to permit couples who have never cohabited to non-molestation orders also to reinforce the position of same sex couples, especially with respect to occupation orders. The cohabitation couples have no pension rights, tax exemptions, immigration etc. After the birth of a child to cohabitant couple, the details of the father will be recorder in birth registration only after the acknowledgement of the father’s paternity by the court. There are a few other circumstances that will allow parents to register their child’s birth. According to the current law, the cohabitant couples at the end of their relation have no rights on each other’s property and are assumed as two unrelated individuals. Cohabitants can claim financial assistance on behalf of their children under the Children Act 1989. Compared to the laws in England and Wales and Scotland, the cohabitant rights in Australia is quiet advanced and is providing more rights to cohabitants. The Australian family law is recognizing homemaking, financial and non-financial and parenting contributions of the partners in a relationship.15 15Family Law Act The cohabitants rights are now extended to de fecto couples, where same sex or opposite sex couples. If they have a child born to their relationship or if the relationship between the couple remained for at least two years, they will be treated equally just like married couples. In this regard, compared to the cohabitant couples in the UK, the cohabitant couples in the Australia has more rights and it is possible that couple in UK raise actions to recognize their rights similar to the Australian government. Who Is Parent? There is no standard definition of the term ‘parent’ in the Marriage (same sex couples) 2013 Act yet, many dictionaries and authors who wrote on the topic defined the term according to their own perception. A very common definition of the term refers; a parent is a legal caretaker of his/her biological offspring regardless of age and gender. The term legal parent is a bit diverse form of a parent that can be defined as a person or couple who have legally acknowledged rights and obligations to a child, either biological or adoptive. An individual remains a lawful guardian until he or she deliberately surrenders these rights or a court of law ends an individual's parental rights. There are lawful assumptions that a baby destined to a married woman is for sure the child of her spouse, and he will be the legitimate father unless this is uprooted by a revelation or other statutory procurement. Though, for opposite sex spouses it is easy to have parental rights and responsibility for a child who is born to their relationship however, it is quiet a difficult situation when it comes to clear the parental rights in same sex couples, civil partners and cohabitants. The Marriage (Same sex couples) 2013 Act made certain amendments to the Human Fertilisation and Embryology Act 2008 and made some extensions about the parental rights of same sex couples. According to the new assumption under 2013 Act, a child born to a woman under a same sex relationship (civil partnership), and the conception was made through insemination when the couple was in relationship, the mother's civil partner will be treated as the legal parent of that child. The Marriage (Same Sex Couples) Act does not explicitly develop the assumption of parentage. It gives that where a child is born to a woman at the time of marriage to another woman, there is no need to raise question about the parent of the child because the civil partner (which is currently in the relationship) will not be the child's parent. The facts may confirm that the HFE Act 2008 will be corrected to expand the assumption of parentage to women in a same sex marriage, however, currently only the women in civil partnership can get advantage of this legal presumption. Similar to opposite sex married couples, same sex married couples and civil partners can also adopt a child in England and Wales under the new 2013 Act. There has never been a law avoiding LGBT individuals from embracing kids. However the Adoption and Children Act 2002 permits unmarried couples (cohabitants), same sex couples, to apply for joint appropriation. Any unmarried couple, including a same sex couple longing to receive will need to have the capacity to exhibit that they are in a persevering and stable family relationship. Civil Partners who want to adopt a child together are allowed to get an adoption leave from work as well as the other partner can get a parental leave. Similarly, the Scotland’s Adoption and Children Act 2007 allow same sex couples and civil partners to adopt a child however, they are responsible to meet the criteria. The willing party must have in a civil partnership or they must satisfy that they are living together for a long time just like civil partners. The Equality Act 2010 helps LGBT individuals to avoid discrimination because of sexual introduction and sexual orientation. This implies that adoption organizations cannot stop a potential couple willing to adopt a child just because of their gender. The adoption organizations are required to agree with the new law and they are directed to allow adoption to both lesbian and gay couples. Moreover, religious based organizations can also not refuse a same sex couple (civil partners or cohabitants) from adopting a child. It is the right of the LGBT couples to seek legal assistance against adoption organizations that have refused them from adopting a child. BIBLOGRAPHY Books Barlow A, Josiah-Lake D and Barlow A, Cohabitants And The Law (1st edn, Butterworths 2001) Bridgeman J, Responsibility, Law, And The Family (1st edn, Asgate 2008) Fairbairn C, Lyall H and Campbell J, Marriage Of Same Sex Couples Across The UK Herring J, Family Law (6th edition, Pearson) Koppelman A, Same Sex, Different States (1st edn, Yale University Press 2006) Mallender P and Rayson J, The Civil Partnership Act 2004 (1st edn, Cambridge University Press 2005) Standley K, Family Law (1st edn, Palgrave Macmillan 2008) Sarcevic P and others, Liber Memorialis Petar Šarčević (1st edn, Sellier European Law Publishers 2006) Westermarck E, Marriage (1st edn, Omnigraphics 1998) Journals Davis A, 'Regulating Polygamy: Intimacy, Default Rules, And Bargaining For Equality' [2010] Columbia Law Review Martin J, 'English Polygamy Law And The Danish Registered Partnership Act: A Case For Consistent Treatment Of Foreign Polygamous Marriages And Danish Same-Sex Marriages In England' (1994) 27 Cornell Int'l LJ Legislation The Marriage (Same Sex Couples) Act 2013) The Marriage and Civil Partnership (Scotland) The Marriage Act 1949 Domicile and Matrimonial Proceedings Act 1973 Death Act 2013 Family Law (Scotland) Act 2006 The Children Act 1989 The Family Law Act 1996 Cases Gow vs Grant that was held in 2012 based on the Family Law (Scotland) Act 2006 Read More