This week sees the end of the period of consultation for the proposed introduction of same sex marriage.I have been thinking this over ever since the proposal was first mooted. From a family lawyer's perspective, I am coming to conclude that the law of unintended consequences is likely to kick in if this is enacted and rather more trouble is going to come out of it than was ever foreseen. Let me explain what I mean.
Religious marriage and civil marriage.
In its consultation document on same sex marriage, the government says, "Under current legislation a marriage can only be between a couple of the opposite-sex i.e. a man and a woman. A marriage can be conducted on either, religious premises through a religious ceremony, or on secular (non-religious) premises through a civil ceremony."
They then go on to say, "From [these] discussions it became clear that the immediate issue that needed consideration was enabling same-sex couples to have a civil marriage. The Government is committed to taking forward equal civil marriage and wants to consult widely on how best this can be done."
So I got to wondering, is this right? Are there two different types of marriage recognised in law, religious and civil? You know, I don't think there are actually. And what's more, as I have thought this through, I think it's enormously important that there shouldn't be.
The Marriage Act 1949 (as amended)
The Marriage Act 1949 governs marriages in England and Wales. It has been amended down the years but it cannot be simplified in the way that the Government's consultation suggests. Part I of the Act deals with who can and cannot be married. Part II deals with marriage in the Church of England. Part III deals with marriages under a Superintendent Registrar. Now that looks like the establishment of two separate types of marriage, religious and civil, until you look at s.26, which falls in the Registrar's half of the draw. This sets out the Registrar's authority for marriages in various establishments, including synagogues and Friends Meeting Houses (Quakers).
So the extent that there is a distinction in law, it's between Church of England ceremonies and all the rest. In fact, the longer you look at the Act, the less easy it is to make any clear cut separation into the two categories which the Consultation suggests.
This came to the fore recently in a High Court decision which concerned what the "husband" and the "wife" at the time saw as a valid marriage but which wasn't. You can read the judgment here -
Dukali v. Lamrani
The parties in this case went through a ceremony at the Moroccan embassy which they believed, and were advised, was valid in both English and Moroccan law. As Holman J determined, though, it wasn't. As a result, English law makes no provision for the wife on the ending of the relationship.
But why is it important?
Well, whether you like it or not, various religions teach uncompromisingly that same sex sex is morally wrong. As marriages can presently be celebrated in a variety of religious premises, if same sex marriage is approved, on the face of it, it would be a clear breach of equality legislation for a church to refuse a same sex marriage ceremony to a gay couple. So the state would be seen to have legislated in a way which requires a religious body, presently entitled to institute a valid marriage, to do so in a way forbidden by its religious rules.
By trying to establish two separate identities for marriage, the government clearly hopes to sidestep this issue. But will it work? As I say, I don't believe that the Marriage Act is open to this interpretation anyway. The only real distinction arising by virtue of the Act is valid marriages and invalid ones. Any ceremony or celebration which does not comply with the provisions of the Act simply isn't a marriage.
Even if the Act did draw a valid distinction, this doesn't solve the problem. Neil Addison is a practising barrister who happens also to be a Catholic. He has pointed out on his blog that European law doesn't permit different treatment.
Religion law blog
He cites an authority to the effect that the European Court "reaffirmed
that if a member State did decide to legalise same sex marriage then
they had to ensure that it was provided on exactly the same basis as
heterosexual marriage." To be quite honest, this should come as no sort of surprise at all.
So as far as I'm concerned, to provide for same sex marriage, the government will first of all have to legislate for there to be two forms of marriage - religious and civil. This is the only way I can see for there to be two separate systems and might, and I would emphasise that this is by no means certain, might allow for religions to continue with ceremonies which excludes same sex couples.
The law of unintended consequences
I was quite shocked early this year (I think it was) to read an account of a family law seminar at which a solicitor from a leading practice, who is himself a Muslim, stated that probably around 85% of Islamic marriages are not valid in English law. I have since asked one or two practising Muslims of my acquaintance if this accords with their perceptions and they confirm that if anything, it's an underestimate. Muslim couples are going through a ceremony at the mosque, which is valid in the religious context, but they are not then going through the formalities needed to register themselves as a married couple according to the law of the land.
This in turn means that women in particular are at risk of losing out. As they have no recourse to the divorce courts of the land, they are left reliant on the sharia courts only if the "marriage" fails. So by the back door, we find different communities living according to entirely different jurisdictions and principles. I really struggle to think of anything more divisive!
All citizens of the country should be subject to the same law. Everyone should have the same rights before the law and all should have identical responsibilities. This, I believe, is of fundamental significance and is a bedrock of society.
I therefore would hotly oppose any proposal which separates and legislates for different forms of marriage. There should be one form and one only. There should be nothing to encourage the legitimisation of a separate religious status which deceives parties into thinking they have legal protection and recognition when they do not. Indeed I would go further - I would much prefer to see legislation outlawing ceremonies which purport to be valid marriages when they simply aren't.
Are two separate jurisdictions feasible?
At present, we have one simple question at the outset of a divorce case - are the parties married? Without a marriage, there can't be a divorce. Without a divorce, there can't be any invocation of or reliance upon the financial provisions of the Matrimonial Causes Act.
Now if we have separate forms of marriage, the courts risk becoming reliant on religious bodies deciding whether parties have been validly married or not. And as we all know, religious authorities seem quite skilled at disagreeing even on the fundamentals of their own beliefs! Is this really what we want?
The alternative is simply to say that as with the present day Islamic marriage, it will just have no legal recognition and no access to remedies on divorce. For me, that would be the worst possible outcome. Already we see at least one community withdrawing into itself in this area of law. We should be legislating against this, not to encourage it. A fractured and divided society is highly dangerous - both history and current affairs should make this entirely clear. I think there needs to be a much more careful and reflective approach to this whole question. If the price to be paid for this proposal is to drive certain communities to turn in on themselves and opt entirely out of the civil law, this would be far too costly.
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