Do you recall the case of the British same-sex couple, Wilkinson and Kitzinger, whose marriage was not legally recognized in the United Kingdom in 2003? To briefly recap, the case was about a same-sex couple that was legally married in Canada. But upon their return to the United Kingdom, they were surprised to learn that their marriage wasn’t considered valid under English law. Therefore, the couple proceeded to make an application to the High Court for a declaration of their marital status under the Family Law Act 1986. However, their petition was denied by the Court. In its decision, the Court noted that same-sex couples were treated differently from heterosexual couples, and that this did amount to discrimination. Nonetheless, it was reasoned that such discrimination was justified in order to protect the traditional definition of marriage (i.e. being a union between a man and a woman). Accordingly, this decision solidified the position of English law on the subject matter – same-sex marriages did not count.
While the case was unsuccessful for Wilkinson and Kitzinger, it did raise public awareness on the issue of equality rights where same-sex unions were concerned. More importantly, it opened the doors for public consultation on this subject. Over a decade later, we saw the introduction of the Marriage (Same-Sex Couples) Act 2013. With its enactment, we have seen an increase in the number of same-sex marriages in the United Kingdom. As such, this raises a key question – does this increase in same-sex marriages mean that we have achieved equality?
Broadly speaking, the Act has received a positive response among the public and it has been viewed as a step in the right direction. In this regard, we must acknowledge that the Act indicated a major paradigm shift politically and legally speaking on the subject of same-sex couples in relation to marriage. English law has now adopted the position that same-sex marriages are to be recognized as legally valid marriages. What this translates to is the recognition of same-sex marriages performed abroad, like in the case of Wilkinson and Kitzinger, as well as allowing international same-sex couples to get married locally in the United Kingdom. However, while the Act makes as an attempt to rectify the unequal treatment of same-sex couples where marriage was concerned, it can be discerned that it doesn’t fully accomplish this goal. Let us contemplate some of the challenges with the Act.
First, there are now two definitions of marriage that exist as well as two different pieces of legislation dealing with marriage in the United Kingdom. We have the Marriage Act 1949 which defines and governs marriage among traditional, opposite-sex couples while the Marriage (Same-Sex Couples) Act 2013 defines and governs marriage among same-sex couples. If true equality had been the intent behind the enactment of the 2013 Act, then would it not have been reasonable to simply incorporate language regarding same-sex couples and amend the existing marriage act to have one single, inclusive act to deal with marriage? What becomes evident is that in choosing to adopt a separate definition and enact a separate legislation, the true intention of parliament is revealed. Same-sex couples are still to be viewed as different from traditional opposite-sex married couples. There seems to be the perception that equal treatment was granted under the law; however, in actuality, the choice to govern same-sex marriages by a separate and not equal set of laws does not equate fairness.
Second, there is a complex balancing act at play between the equality rights for same-sex couples and the desire to protect religious freedoms. To illustrate, the Act stipulates that no religious organization or representative can be forced to conduct a same-sex marriage ceremony. To build on this point, the Act ensures that religious organisations and their respective representatives cannot be sued for their refusal to perform same-sex marriage ceremonies. This is because such organisations and representatives would be within their legal rights to refuse on the grounds that it would be against their religious convictions and religious freedom is protected by Article 9 of the European Convention of Human Rights. More specifically, the Act sets out what is known as the “quadruple lock” which outlines the specific criteria to be met in order for same-sex couples to be able to have a religious marriage ceremony. For more information on the quadruple lock criteria, please refer to the government prepared fact sheet by clicking here.
Third, the Act contains some distinctions from the traditional view of marriage, especially where divorce proceedings are concerned. Let us consider the example of adultery. Under English law, adultery can only be proved to have occurred if it involved sexual conduct between two members of the opposite sex. In essence, this means that same-sex couples cannot use adultery as a grounds for divorce since it doesn’t satisfy the legal definition of adultery. Again, same-sex couples are still treated a second class citizens.
Lastly, there is still discrimination experienced by same-sex couples in the area of occupational pension benefits. Consider the following scenario, let’s say that both Wilkinson and Kitzinger had been making contributions to their occupational pension schemes since 2000. When it comes for them to access spousal pension benefits in the future, at what point in time would spousal contributions made be recognized under the law – 2003 or 2013? This will be an issue which will need to be explored further by parliament and lawmakers in the future as same-sex couples ought to able to access the same rights and benefits, afforded to opposite-sex married couples in the United Kingdom.
In closing, while the increase in the number of same-sex marriages paints a rosy picture of equality being achieved, it’s important to appreciate that numbers don’t always tell the whole story.
Should you have any legal questions about same-sex marriages, please contact one of the family law specialists at Grayfords. To receive regular blog updates from us, follow us on twitter @grayfords.
by Pooja Sihra
Pooja is a guest blogger for Grayfords. Pooja is an international, post-graduate LLB candidate studying at City University London. She received her BA (Hon.) in Law and Society/Sociology in 2009 as well as a Master’s in Public Policy, Administration and Law in 2013 from York University in Toronto, Canada. Her interest in family law developed after navigating the challenges of acting as an estate trustee without a will in a family matter.