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Same-sex marriage years’ on: has full legal equality been achieved ?

Equal Marriage?

Same-sex marriage years’ on: has full legal equality been achieved ?

Dr. Ruth Gaffney-Rhys, Associate Professor in Family Law, University of South Wales




When the first same-sex marriages were celebrated in England and Wales in March 2014, Ruth Hunt, then Chief Executive of Stonewall, described the day as ‘momentus’, marking ‘full legal equality for lesbian, gay and bisexual people’. The day was certainly momentus, but it did not, in fact, create full legal equality, as there are certain legal differences between same-sex and opposite-sex marriage.

First, there are restrictions on the celebration of same-sex marriages in places of worship, which do not apply to opposite-sex couples. Same-sex marriage ceremonies can only take place in a religious building if the Governing body of the organisation has opted in and if the individual representative is willing to solemnise the union. The Equality Act 2010 was amended by the Marriage (Same Sex Couples) Act 2013 to prevent successful discrimination claims being made against religious organisations and their representatives that refuse to host weddings. Most have not opted in, but the Methodist Church voted in favour of celebrating same-sex marriage in June of last year.

Once the marriage has been formed, same-sex and mixed-sex spouses are generally treated in the same way e.g. in relation of the right to apply for financial provision on divorce, taxation, inheritance and protection from domestic abuse. They also have the same rights in terms of adoption of children, surrogacy, child support and rights in relation to children on separation. However, the law relating to assisted reproduction (contained in the Human Fertilisation and Embryology Act 2008) differentiates same-sex and opposite-sex couples to a certain extent. If a mixed-sex couple get pregnant with the assistance of a sperm donor, the husband will be treated as the baby’s ‘father’ (unless he did not consent to the treatment). If a female couple receives treatment, the woman who gave birth to the baby is the legal ‘mother’, whilst her wife is the other ‘legal parent’. This is a matter of terminology rather than substance, but it might be regarded as reluctance to accept same-sex parents as equal.

There was also a difference in relation to occupational pensions. Same-sex spouse will receive benefits granted to surviving spouses under the pension scheme if their spouse dies, just as opposite-sex spouses do. But, the amount payable to a surviving same-sex spouse was only based on contributions made after 5th December 2005 (the date the Civil Partnership Act 2004, which first enabled same-sex couples to enter into a formal relationship, came into force). This discriminatory treatment was challenged and following a ruling by the Court of Justice of the E.U., the Supreme Court declared that it was incompatible with E.U. law (Walker v Innospec Ltd. 2017). Consequently, pension schemes can no longer differentiate between same-sex and opposite-sex couples when calculating death benefits.

Certain distinctions exist in terms of the annulment and dissolution of marriages. An opposite-sex marriage can be annulled due to non-consummation but a same-sex marriage cannot. Given that annulments are extremely rare, this difference has little practical significance. At the time of writing, it is possible to divorce on the basis of adultery, but only conduct between persons of the opposite sex constitutes adultery, even in cases of same-sex marriage. If a same-sex spouse has an affair, the divorce can be based on ‘behaviour’ but not ‘adultery’. However, the Divorce, Dissolution and Separation Act 2020, which is due to come into force in April 2022, removes adultery and behaviour from English/Welsh divorce law (replacing them with a system of notification and confirmation of marital breakdown). This is to be welcomed, not only because it will reduce conflict in divorce proceedings, but because it removes one of the remaining differences between opposite-sex and same-sex marriages. But as explained in this article, ‘full equality’ is yet to be achieved.



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