Same Sex Marriage

The Marriage (Same Sex Couples) Act 2013 came into force on 29th March 2014. This is a historic moment in that for the first time ever same sex couples can enter into a proper marriage with all of the legal implications that comes with it.

There has been much confusion as to what this really means to same sex couples.  I would confirm as follows:-

  1. Same sex couples could, under the Civil Partnership Act 2004 enter into a civil partnership which gave them the same legal rights on a dissolution of civil partnership as a married couple on divorce.  Accordingly there is now a consultation about the future of the Civil Partnership Act with many commentators suggesting that now that same sex marriage has been brought in, that civil partnerships should be abolished.  This does beg the question that if your civil partner does not want to enter into a marriage, would same sex couples be left without a remedy as before?
  2. At the current time, civil partners cannot immediately marry and convert the civil partnership into a marriage.  The reason for this is that the Government has announced that those in civil partnerships cannot be married until the systems are updated.  This means that civil partners can convert their partnership into a marriage but do not have to do so.  On conversion from a civil partnership the date will be backdated as if the marriage had been in force from the date of the civil partnership.  It is being suggested that Elton John and David Furnish will be converting their civil partnership into a marriage within a month.  If this date is open as the first date for the conversion from civil partnerships, many high profile civil partnerships will follow suit. For example Sandi Toksvig and her partner and many others.
  3. We already recognise same sex marriages that have taken place overseas and that are recognised in their countries.  This means that a same sex couple who have married abroad and come to England, will have their marriage recognised in England and Wales.  However, civil partnerships that have taken place abroad cannot be converted into a marriage here.  The reason is that it would cause a difficulty with the laws in other jurisdictions.
  4. In a dissolution of a civil partnership, the exact same grounds as those used in divorce were allowed with one notable exception.  For same sex couples adultery was not a ground for dissolution.  The reason was that there adultery by very definition in English law could only take place between people of the opposite sex.  The same will now apply to same sex spouses that adultery cannot be given at present as a reason for divorce until there is a change in the law. Similarly same sex spouses cannot annul their marriage on the grounds of non-consummation.    However bizarrely, you can cite adultery in a same sex relationship if either of the parties has a sexual relationship with someone of the opposite sex.
  5. At the current time if someone in a civil partnership believes that there has been an inappropriate relationship with someone else, they can only petition on the basis of unreasonable behaviour.  This will continue in same sex marriage until there is a change in the law.
  6. In every other way on a same sex divorce, the financial implications are the same, except in relation to pensions.  Civil partners under the current law are only required to be treated in the same way as married couples if they are of the opposite sex with regard to pensionable service.  There is a loophole in the Equality Act 2010 means that a private occupational pension scheme can disregard years of contributions by gay employees.  This means that the surviving civil partner and/or same sex spouse will have only limited payments.  This is the current state of the law, even if it changes will not be able to be applied retrospectively.

The upshot of all of this is whilst enormous progress appears to have been made, equality is not a word can be stated with total accuracy to the status of same sex couples even those that choose to marry under the current status of English law.

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