Equal marriage on the way as Bill published

gaycouple“Marriage of same sex couples is lawful”, begins the Government’s new Equal Marriage Bill, which will, amongst other things, make it legal for gay couples to marry in both civil and religious ceremonies.

Religious communities will not be forced to conduct ceremonies, but will be able to ‘opt-in’ to the new system. However, Church of England communities will not be permitted to opt in even if they want to. The progress Bill can be tracked here – the next reading is in the House of Commons on 5 February. The Bill is summarised as follows:

A Bill to make provision for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes.

Marriages on religious premises will be lawful but only if (a) the ‘relevant governing authority’ (defined as “recognised by the members of the relevant religious organisation as competent for the purpose of giving consent for the purposes of this section”) has ‘opted in’ to the new system, and (b) the religious premises are related to the Church of England (section 4).

The Bill will insert a new provision into the Equality Act 2010 to make clear that there can be “no compulsion to solemnise” (s.2(5)), which means that nobody will be able to bring a claim under the Equality Act arguing that they should be allowed to marry on religious premises where the governing religious authority has not ‘opted in’.

The Explanatory Notes have not been released yet, as far as I can tell, but the Government’s response to the Equal Marriage consultation provides the rationale and can be read here. In particular, see paragraph 1.3 (‘legal position’) which explains why Church of England premises are to be excluded under the ‘quadruple lock’ [update - the explanatory notes are here].

My prediction: the bill will be passed more or less as proposed, and the ban on Church of England equal marriages will be challenged in the courts. This may or may not succeed, but the ban will ultimately be lifted anyway. If it is the case that there are Church of England officials who want to marry willing gay Church of England couples, it does seem potentially unfair that they will be the only religious community unable to marry under the new rules. We shall see what happens.

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10 thoughts on “Equal marriage on the way as Bill published

  1. Q: Has anyone challenged the ban some churches operate on marrying divorcees under the Human Rights Act (yet?)

    • With regard to the marriage of divorcees, the position for the Church of England is analogous to that in section 2 of the Marriage (Same Sex Couples) Bill. Both the Bill and section 8(2) of the Matrimonial Causes Act 1965 give statutory protection to clergy who, on grounds of their belief, are unwilling to conduct the marriage of a divorcee/same-sex couple. The Church’s teaching on marriage is given in Canon B 30, for which the appended advice of the House of Bishops makes it clear that this is a decision for the clergy to make.
      In most other cases, except in the case of gender reassignment for which there is a similar provision in section 5B, Marriage Act 1949, clergy are under a common law duty to conduct the “occasional offices” of baptism, marriage and burial for anyone within their parish.

  2. In legal documents existing prior to the bill being enacted, references to marriage will be required to be construed as excluding same sex marriage (schedule 4 part 1). This will lead to unhappy situations where all parties to a will or trust written many years earlier are obliged against their wishes to treat a same sex marriage as void.

    Initially, the logic might seem compelling: drafters could always have made express provision for unmarried same sex couples or, latterly, civil partnerships, if that were their intention. But, as time goes by, the saving provision will seem increasingly anachronistic, with many documents having legal effect decades after they were signed, and in some cases being unamendable except, perhaps, through a court order or statutory instrument.

    On the other hand, it is difficult to see how a more progressive saving provision could protect those cases where all concerned wish to avoid an unintendedly broadened construction. A more flexible provision would cause uncertainty or require adjudication in each case. Clearly the drafters were aware that every approach would have drawbacks and Parliament will have opportunities to debate or amend the implications before the bill becomes law.

    In contrast to this controversial but deliberate provision, there is, I think, an unintended omission as to how existing documents should be interpreted if they refer to marriage AND civil partnerships. On the face of it, the progressive intention of such documents would be undermined by their having to be interpreted as ignoring a same sex marriage.

    The bill ought to be amended to provide further that references to “civil partnership” in documents which predate same sex marriage should be construed to include it.

    • The same was done in 1970 when the law was amended so that references to “my chlldren” or “the children of X” in a will would include what we still called illegitimate children – it did not apply to existing wills. And quite right in both cases. A testator who at present refers to “marriage” must be taken to mean what marriage now means and that testator’s will should not be changed – it is up to the testator to do so if he wants. I see nothing remotely controversial about that.

      But yes: if a testator has after the introduction of civil partnership but before the new Act comes into force included civil partners in express terms, then same-sex spouses should make the cut too.

      On another point: what a mean-spirited provision it is which expressly refuses Registrars now in post from refusing to perform same-sex ceremonies. Do we want another Ladele? It is just a matter of allocating work; other districts managed when c.p. began and Islington could have done so too.

  3. Perhaps this is not a logical matter for UK legislation. Arguably, with freedom of movement within the EU, relationship status should be the same in all countries within it. Why do the UK representatives in the European Parliament not seek to legislate for uniformity?

  4. 25 January 2013
    Dear Mr Wagner
    Thank you very much for this fascinating and thought-provoking article on same-sex marrages.

    I believe that there is an alternative to all of this.

    “Civil Partnerships” are prohibited for a hertosexual couple.

    If “Marriage” is to be made “equal” and on a level playing field with “Civil partnership”, then the whole of the Law will need to be re-written.

    So what is needed is not to make same sex couples have to have a marriage band, nor for a married couple to have a civil partnership, but instead for anyone who is either married or in a civil partnership to be given a SUPRA-STATUS of something all embracing.

    At present, could a bisexual person both be in a civil partnership with a person of the same sex AND at the same time be in a Marriage with a person of the opposite sex?

    If this is legal, then there might be a multiplicity of arrangements potentially.

    And then there are people who co-habit and have no formal certificates, who do not wish to be married and are excluded from having a civil partnership because they are heterosexual and so cannot have a civil partnership.

    Should there be a NEW CERTIFICATE of “Couple”.

    This would overcome all the potential religious objections from many quarters, such as some Christians, Muslims and Jews who might take offence.

    Rather than having religious warfare, we need harmony and peace.

    In France after a religious wedding there is a certificate in a non-religious setting stating they are a couple.

    This is what I think could be a happy solution without causing offence.

    What do you think?

    I would be most interested for your thoughts, and there are people who are intersex, and this would enable them to be recognised too. As well as transgender.

    These people are humans with human rights.

    A rose is a rose by any other name.

    So why do we not set up a NEW certificate that embraces all kinds of UNION.

    I hope we get a national debate on this.

    Best wishes

    Rosemary

    Rosemary Cantwell

  5. It is not part of the acquis and it would be impossible to include it. In some European countries you can marry your cousin; in some you can’t. In England and Wales and NI you can marry at sixteen with parental consent and at eighteen without; in Scotland at sixteen without; in Ireland, I believe, at eighteen; in France, I believe, at fifteen.

    In England you can marry in church and if it is the C of E you do not even need to give notice to the civil registrar – in France you can only be married by M or Mme le maire (and then have a religious ceremony if you want).

    These differences represent different cultures and traditions and there is no need to iron them out for the sake of the single market or freedom of movement.

    The same, incidentally, may be said of the very different laws of intestate succession across the Member States.

  6. Will the law also provide for the conception and bearing of children as a right? If so, how will the physical changes be arranged? Does a husband have as much right as a wife to conceive and bear children within himself? Is Parliament in fact omnipotent?

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