The Devil in the Details: Reading the Marriage (Same Sex Couples) Bill

I would like to thank Sarah Brown, Jae Kay, and Zoe O’Connell for their analy­ses of the bill so far; I’ve had some time to read the bill over the past 36 hours and I’ve got my own comments.

Were I to grade the leg­is­la­tion, I’d give it 6/10, could do bet­ter. In the abstract, it’s a good bill, in so much as two peo­ple of the same gen­der will be able to marry. How­ever, there are some seams in which the con­cept of equal mar­riage start to fray.

What’s Not In

As mar­riage is a devolved issue, the leg­is­la­tion, for the most part, only affects Eng­land and Wales. Inter­est­ingly, though, the explana­tory notes con­firm that a Sewel Motion will be needed to be passed by Holy­rood to con­sent to West­min­ster leg­is­lat­ing for them any­way. I’m unsure why the idea of a Sewel Motion for the entire bill wasn’t dis­cussed, espe­cially as the Scot­tish Gov­ern­ment too want to allow same-gender cou­ples to marry.

Most con­tro­ver­sially for Sarah and Zoe, the bill makes no men­tion of mar­riages annulled under the Gen­der Recog­ni­tion Act 2004. It’s prob­a­bly a kick in the teeth to Sarah, who has been fight­ing for the past four years to get the mar­riage she had con­fis­cated back.

Nei­ther does the leg­is­la­tion speak about opposite-sex civil part­ner­ships. Again, this is dis­ap­point­ing, not only from a sex­ual equal­ity per­spec­tive, as it still seg­re­gates rela­tion­ships on the gen­der of its part­ners, but from a trans­gen­der per­spec­tive, as forced divorce will still exist for straight cou­ples where one part­ner still hasn’t transitioned.

As Jae men­tions, there is no men­tion of equal­ity of pen­sion rights. Where the Civil Part­ner­ship Act and Equal­ity Act had prob­lems is that com­pa­nies were given an exemp­tion to offer­ing spousal ben­e­fits to civil part­nered cou­ples. This was found to be dis­crim­i­na­tory a few months ago. From a read­ing, I imag­ine that spousal ben­e­fits will be auto­mat­i­cally applied to same-gender mar­riages, but still, it’s prob­lem­atic that the dis­crim­i­na­tory lan­guage wasn’t statu­to­rily fixed in a bill that gave it a per­fect oppor­tu­nity too.

Finally, although it’s of lit­tle legal con­se­quence as the law only rec­og­nizes two gen­ders, there is no accom­mo­da­tion for non-binary peo­ple. If I were writ­ing the bill, I would be mod­i­fy­ing all gen­dered lan­guage to mar­riage leg­is­la­tion to give accom­mo­da­tion and make it truly equal mar­riage, but I’m not.

What Is In

And, on the other hand, there are some part of the bill that deserve comment:

  • Sec­tion 2(2): this is part of the infa­mous “quadru­ple lock” and the gives any­one who’s not in an excepted pro­fes­sion — a list which includes reg­is­trars — the right to not work on a same-sex mar­riage. This is some­thing aimed at peo­ple work­ing in reli­gious premises or mar­riages under reli­gious rites but could also apply to peo­ple such as cater­ers and hote­liers. Whether this would sur­vive judi­cial scrutiny is to be deter­mined, but my gut feel­ing is “no”. It also pre­vents reli­gious orders from insist­ing that its ordi­nates carry out a same-sex mar­riage if it is a fun­da­men­tal tenet of their reli­gion.
  • Sec­tion 9(7): As Zoe points out, this clause explic­itly allows cou­ples to be retroac­tively mar­ried from the point of their civil union. One could hope that this could allow an amend­ment in which mar­riages annulled under the Gen­der Recog­ni­tion Act are restored.
  • Sec­tion 11: In Eng­lish and Welsh law notwith­stand­ing pro­vi­sions of this bill, mar­riages are equal.
  • Sched­ule 2: If by an unlikely chance that mar­riage is equalised in Scot­land, then this pro­vides a fail­safe for mar­ried same-gender cou­ples who move around the coun­try. It also pro­vides a fail safe for peo­ple in North­ern Ire­land, where mar­riage is unlikely to be equalised. I’m unsure if such a sit­u­a­tion could per­sist — my under­stand­ing is that Gretna mar­riages were recog­nised in Eng­land. The sched­ule also explic­itly ensures that over­seas mar­riages will be recog­nised as marriages.
  • Sched­ule 3, Sec­tion 3: This states that if any leg­is­la­tion dif­fer­en­ti­ates between common-law mar­riages and “common-law civil part­ner­ships”, then unreg­is­tered cohab­i­ta­tions between two peo­ple of the same gen­der will be seen as a civil partnership.
  • Sched­ule 4, Sec­tion 2: The common-law pre­sump­tion that the spouse of a mother is a child’s sec­ond par­ent does not apply if said spouse is also a woman. Parent­age will then have to be dealt with under the terms of the Human Fer­til­i­sa­tion and Embry­ol­ogy Act 2008.
  • Sched­ule 4, Sec­tions 3 and 4: This defines adul­tery as “sex with a mem­ber of the oppo­site gen­der”, and wor­ry­ingly, it may lead to the fact that one part­ner being unfaith­ful to the other is not grounds for divorce. It also removes non-consummation as grounds for annul­ment if the mar­riage is between two peo­ple of the same gender.
  • Sched­ule 5: From a trans per­spec­tive, this is a deeply trou­bling. As Sarah says, this intro­duces the spousal veto: in the not-unrealistic sce­nario of estrange­ment due to tran­si­tion, under Sec­tion 3, the Gen­der Recog­ni­tion Act 2004 is amended an angry spouse can block their partner’s receipt of a Gen­der Recog­ni­tion Cer­tifi­cate until the divorce papers are served, and delay a person’s legal tran­si­tion out of spite. Sec­tion 9 allows mar­riages to con­tinue while gain­ing a GRC. Sec­tion 11 still enacts forced divorce if civil part­ners don’t want a mar­riage. Noth­ing, unfor­tu­nately, retroac­tively restores forced divorces.

Some of these aspects, espe­cially in Sched­ules 4 and 5 are incred­i­bly prob­lem­atic. I do hope that the Labour and Lib­eral Demo­c­rat MPs in scrutiny com­mit­tee and the House try to amend these away, because they detract from it being an equal mar­riage bill. But on the same hand, if it was between this bill pass­ing una­mended, and not pass­ing at all, then it should def­i­nitely pass. Let’s not make per­fect be the enemy of good, but instead make the bill more perfect.

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