Thursday, 22 March 2012

Marriage - the changing scene

Updated x 2:

According to Article 12 of the European Convention on Human Rights -

"Men and women of marriageable age have the right to marry and to found a family, according to national laws governing the exercise of this right."

In Hamer v United Kingdom (1982) 4 EHRR 139, the European Court of Human Rights stated that marriage, in the context of Article 12, is the 'formation of a legally recognised binding association between a man and a woman' which thereby involves the acquisition of legally recognised social status.   The Hamer case concerned Article 12 in relation to prisoners and a breach of Art 12 was found.   Later, in Rees v United Kingdom (1987) 9 EHRR 56, the E Ct Hr stated that the right to marry guaranteed by Art. 12 refers to the traditional marriage between persons of opposite biological sex.  There was no breach of Art. 12 in the case of a female to male transsexual.  See now the Gender Recognition Act 2004.

In Schalk and Kopf v Austria 2010, the question of Article 12 and same sex marriage was directly raised at the E Ct HR.  Interestingly, the UK intervened in this case.   A male couple complained that the legal impossibility of a same-sex couple marrying under Austrian law violated their right to respect for private and family life and the principle of non-discrimination.  Held, rejecting the complaint, that there is no breach of Article 12 where marriage is available to two people of the opposite sex but not two people of the same sex.

Hence, there is no obligation placed by the Convention on States to recognise same sex marriages or, for that matter, civil partnerships. Of course, the absence of such an obligation does not prevent States from deciding to recognise same-sex marriages or civil partnerships and, in the U.K., civil partnerships have been recognised since December 2005 under the Civil Partnerships Act 2004.  A number of European (and other) States already recognise same-sex marriage - e.g.  Spain, Portugal, The Netherlands, Norway, Sweden, Canada.

The government
is now consulting on Equal Civil Marriage - see the Consultation Document.   The Preface to the document commences:

"During a listening exercise conducted in 2010 on allowing civil partnerships to take place on religious premises, we heard representations from many who sought equal access to marriage for same-sex couples. It was argued by some that having two separate provisions for same-sex and opposite-sex couples perpetuates misconceptions and discrimination. Same-sex couples now receive access to equivalent legal rights, bar the ability to be able to be married and to say that they are married. We do not believe this is acceptable."
The government notes that civil partnerships have been a "significant and important step forward for same-sex couples."   However, the government now notes that the "personal commitment made by same-sex couples when they enter into a civil partnership is no different to the commitment made by opposite-sex couples when they enter into a marriage.  Therefore, the ban on same-sex couples getting married should NOT continue. 
"Put simply" - states the Consultation - "it’s not right that a couple who love each other and want to formalise a commitment to each other should be denied the right to marry.  Civil marriage should not be restricted to opposite-sex couples.

A further development at the E Ct HR:
The E Ct HR (Chamber judgment) has recently decided the case of Gas and Dubois v France   Gas and Dubois were female civil partners according to French Law.  Dubois had a child (born 2000) which was conceived by medical assistance, the sperm donor being anonymous.  Gas sought, in the French courts, a "simple" adoption order for her partner's child but her application was refused.  At Strasbourg, the case was argued under Articles 8 (Right to family life) and 14 (Discrimination) but the court held that there was no breach of Article 14 taken with Article 8.  The Court saw no evidence of a difference in treatment based on the applicants’ sexual orientation, as opposite-sex couples who had entered into a civil partnership in France were likewise prohibited from obtaining a simple adoption order.  In the judgment, the Court reiterated that the European Convention on Human Rights did not require member States’ Governments to grant same-sex couples access to marriage. If a State chose to provide same-sex couples with an alternative means of recognition, it enjoyed a certain margin of appreciation regarding the exact status conferred.

This Gas and Dubois case is discussed in an article in The Telegraph 21st March 2012 - Gay Marriage is not a human right, according to European ruling    In this article there is a suggestion that - " .. if same-sex marriage is legalised in the UK it will be illegal for the Government to prevent such marriages happening in religious premises."

At this stage, I doubt that this will be the case though there is little doubt that the point will be eventually raised.   Perhaps sensibly, the government seems to be trying to avoid conflict with religious bodies.  Furthermore, Strasbourg jurisprudence, undoubtedly gives States considerable latitude ("margin of appreciation") as to what they do in these very sensitive areas.  The government's proposal does not involve requiring religious bodies to conduct same-sex marriage ceremonies.

The Marilyn Stowe blog has an excellent post - "Should the government legalise gay marriage"
See also the National Secular Society item about the consultation.

I would be particularly interested to receive comments from any discrimination law experts with regard to the above.

The government's consultation closes on 14th June 2012.

A note on Civil Partnerships and Religious Premises:

See Equality Act 2010 s.202.   A consultation on Civil Partnership on Religious Premises ended in June 2011.  The government's response may be seen at the Home Office website.  A number of questions are answered in this document issued by the Home Office in December 2011.

Addendum 29th March:

The UK Human Rights blog looked at Gas and Dubois v France - see "Can a homosexual person adopt his or her partner's child?  The case of Gas and Dubois v France" - Daniel Sokol


  1. If we give way on "one man and one woman" how do we hold the line against polygamy? Actually polygamous ceremonies here are void (and criminal if there was a registrar's certificate) and if either party is domiciled here they are void wherever they occurred. I am concerned that what the government proposes will blur that line when (not if, when) there is a challenge.

    1. Polygamy can be quite easily distinguished from same-sex marriage and would be far more of a drastic change in marriage laws.

      The overwhelming majority of the rights and responsibilities of marriage are, in effect, gender neutral. The obligations owed by a husband to a wife are effectively identical to those owed by a wife to a husband. Laws to allow for same-sex marriage would simply deal with eligibility to form the marriage, but little to no change would be required to take account of the fact that some spousal unions consist of two husbands or two wives.

      If we were to allow for multiple spouses, we would have to make fundamental changes to the rights and responsibilities of marriage. Which of one's seven spouses gets the complete Inheritance Tax exemption? Which of them will get the first right to the first £125K of a deceased spouse who dies intestate?

      The redefintion of marriage to include same-sex couples would unquestionably be a much smaller redefinition than one to enable legal recognition of polygamy. (The complete exclusion of polygamy from our notions of marriage is arguably the result of marriage being redefined over the centuries.) Same-sex marriage would involve changes no more drastic than those introduced by the Marriage Act 1836, Matrimonial Causes Act 1857, Married Women's Property Act 1870, and Divorce Reform Act 1969. None of these drastic changes in the formation and nature of legal marriage obligations led to polygamy.

    2. Actually, the proposed changes are fundamental and conceptual and not just about tinkering with tax arrangements. The opening of the "contract" to include more parties for polygamous arrangements would be trivial in comparison to the complete change in very definition being proposed. If someone thinks marriage is a union ratified by God and not only a contract between individuals, they might seek to marry in a church. If someone does not think it is they should not seek to marry in a church. It is clear that this move will lead to those wanting to be married in a church will assert the "right" even if they wish to be married to their pets (some do, google it!), and discrimination law means that the chuch would have to do this. It is not about same sex couples, even though it allegedly for their benefit. Mostly it is not the gay community but secular societies that want this. It affects marriage for everyone. Civil partnerships are different from marriage and appropriate for those that want to make a contractual arrangement whatever their gender. This change is the biggest deal since Henry VIII changed marriage and caused bloodshed for generations. Overdramatic, you might say now. But wait a few years... I hope I am wrong.
      By the way the proposed law will also remove sex from marriage in law, so that a same sex couple or male and female would not need to consumate the marriage for it to be valid. Again, this has ramifications for the future.

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