Michelle Buckle, Stuart Barton (Head of Department), Samantha Cole, Paula Fraser

The Marriage (Same Sex Couples) Act 2013 has now received Royal Assent and is formally part of the laws of England and Wales. The Act is undeniably a true watershed for same-sex couples and has been broadly welcomed by human rights groups. However, the Act has not pleased all supporters of same sex marriage. There will remain some fundamental differences between same sex marriage and ‘traditional’ marriage. In this article, we look at these key differences and make some predictions over where this leaves Civil Partnerships – the existing way for a same sex couple to formalise their commitment to one another.

Difference no 1 – the Church
Both the Church of England and Church of Wales are specifically banned from performing religious marriage ceremonies for same sex couples. It is clear that the coalition government could not meet the Church halfway upon their opposition to same sex marriage. As a result, their opposition has effectively been sidestepped.

Difference no 2 – geography
Same sex marriage does not apply to Scotland and Northern Ireland. However, the Act does recognise that if a same sex couple are married abroad, then their marriage should be treated as binding. This applies whether the couple married before or after the introduction of the Act.

Difference no 3 – the ‘sex issue’
If a same sex couple are married and subsequently wish to get divorced, the Act does not recognise adultery as a fact that either one of the couple can rely upon. Likewise, if either of the same sex couple want to obtain an annulment, neither of them can rely on the fact that the marriage was not consummated. As far as the government are concerned, adultery and non-consummation only apply to opposite sex couples.

Difference no 4 – pensions
Same sex couples that marry will not have the same entitlement to pension rights upon the death of their partner. Employers will only be required to pay a survivor’s pension based on contributions made since 2005. Although some employers may pay out upon contributions made since 1988 onwards, this is discretionary. This means that pension contributions made in the years before 2005/1988 are in many instances discounted and will not be received by the survivor.

Civil Partnerships – the end of the road?
Since they were introduced in 2005 there is little doubt that Civil Partnerships have proven more popular and widespread than first imagined. As many as 16,100 couples ‘tied the knot’ after they were first introduced and 6795 couples entered into Civil Partnerships in 2011.

The key question is how existing Civil Partners choose to deal with the fact that marriage is now available to them. The Act contains a provision that existing Civil Partners can ‘convert’ their Partnership into marriage. If they do so, the couple will be treated as having married from the date that their first became Civil Partners. Exactly how this ‘conversion’ will be accomplished remains to be seen. No doubt registry offices, hotels and other venues will be bracing themselves for a flood of ‘Conversion Ceremonies.’

As the option of marriage becomes available it seems more than likely that Civil Partnerships will become far less popular. It is hard to envisage a same sex couple in England and Wales entering into one when they can become married instead.

Commentary
If the coalition government are to be praised for their introduction of same sex marriage, it would only be fair to criticise them for failing to introduce legislation to protect the financial position of cohabiting couples. It seems folly to leave nearly 6 million cohabiting couples at the mercy of antiquated, arbitrary and (often) unfair principles of property law should their relationship break down. Until this imbalance is addressed, the Prime Minister’s vision of a ‘Big Society’ remains fundamentally flawed.