Monthly Archives: February 2017

Marriage and Civil Partnership

Once upon a time there used to be marriage, the relationship until death of a man and a woman. I’ll not trouble you with the legal and social ramifications, they are well known to all. There never was such a thing as Common Law Marriage, which is a myth, I mention that in passing in case anyone out there still isn’t aware of this fact, because a surprising number of people still labour under the illusion it exists.

Then civil partnerships were created so same sex couples could have all the legal rights and responsibilities, protections and tax benefits of marriage – but without being actually married. The government of the day felt marriage for same sex couples was too contentious – it might upset too many people. So we had civil partnerships and marriage.

However, times move on and social attitudes change – and same sex couples were never going to accept being unable to marry – it seemed they were being discriminated against, as they felt they were treated differently from heterosexual couples as they could not ‘marry.’ Some religious groups campaigned against being forced to offer religious marriage to gay couples, as being an infringement of their right to religious freedom and so a breach of their human rights. Meanwhile gay couples campaigned to be able to marry, saying they were being discriminated against.

So, some might say inevitably, the next move was to legislate to permit gay couples to marry and on 13 March 2014 The Marriage (Same Sex Couples) Act came into force. Same sex marriage was legalised. Now of course hetero-sexual couples want the right to have civil partnerships – and the government of the day has a problem of its own making on its hands – and may have to legislate basically to allow everyone to do anything they like – which is what we should have done in the first place. We would have done so already if anyone had listened to me at the time they passed the Marriage Act for gay couples.

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We have now with three appeal court judges basically saying the government is breaching heterosexual couples’ human rights not allowing them to have civil partnerships.  

It’s all caused by problems of definition and straight line thinking. Is anyone aware of the difference between a civil partnership and a civil wedding in a Registry Office? No, neither am I. That’s because there isn’t one – the legal effect of these relationships is identical. The problem exists in the words alone. What is so fascinating is the vehemence generated by the use of the words ‘marriage’ or ‘civil partnership’ and the supposed baggage attaching to one and not the other, intrinsically regarded as desirable or not – depending on your point of view.  The fact is the legal consequences for marriage and civil weddings or marriages (whether conducted at Registry Offices or non-religious venues) and civil partnerships are identical – save in one respect and that relates to the grounds for a petition for dissolution in relation to adultery for gay couples, on which I do not propose elaborating. Perhaps I’m missing something, but if the consequences and legal effects of these legal relationships are identical why are we worried about the wording?

So given all the palaver over The Marriage (Same Sex Couples) Act – and the current intransigence concerning any possible infringements of any human right, it was predictable there would be similar ructions from heterosexual couples wanting to enter into civil partnerships. I think people will always want what they can’t have – it is part of the human condition. What we could and should have done a few years ago is avoid all this with the simple expedient of the following law:

“In future all couples whether the same or opposite sexes, can marry or enter into civil marriages or civil partnerships and the legal consequences of all these legal partnerships will be the same and the words  marriage, civil partnership and civil marriage can all be used interchangeably.” End of.  

Anyone agree with me?

Walking the tight rope to a divorce

Walking the tight rope to a divorce – the unreasonable behaviour has to be bad enough or a judge must ‘nod it through’ – some divorces fail!

Tinie Owens 65 was refused a divorce last week after 39 years of marriage, when her husband convinced the judge her claims of being stuck in a loveless marriage were insufficient to justify a divorce. Mr Owens, a 78-year-old farmer, argued that his behaviour, which his wife had described as being unreasonable, was nothing of the sort, it was part of normal married life.  The judge agreed with him and refused to grant the divorce.

A small number of divorces are defended each year most of them not with the aim of staying married – they are combined with a cross petition, as the respondent does not want to be technically to blame for the divorce and so seeks to get a divorce based on their spouse’s behavior, not theirs. These defended cross petitions often end with a Decree Nisi of divorce being granted on the petition and the cross petition, so both parties are technically to blame. Blame does still feel very important to many people – understandably so as we have an antiquated fault-based divorce system unless you are happy to wait two years to divorce with consent or five years with no consent. We have over the years mediated the grounds for divorce petitions and how people divorce many times.

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Very occasionally someone defends their divorce on the basis they want to stay married.This happened to a husband I represented when I was in family law practice. The wife’s petition followed the Resolution Code of Practice and enumerated the bare minimum her adviser considered to be necessary to secure a divorce. So far so normal. However, the judge disagreed the behaviour was enough for a divorce, saying that whilst this wife might have been disappointed in her marriage, there was nothing adequate to justify a divorce.

I’m surprised to see the Owens case proceeding via the appeal system – as there is a much simpler if rather less dramatic way of dealing with these cases. In the case in which I was involved, the wife amended her petition to expand the allegations of unreasonable behaviour, so they gave more detailed accounts of unhappy incidents in the marriage and she could be divorced. Even if Mr Owens does not like this or agree to it, it remains an option – then there is no possibility of the particulars of unreasonable behaviour being found to be insufficient, assuming they are true. It is simply a question of how intrusive the judge sees fit to be – as in any marriage if one spouse wants a divorce, they will get it one way or another.  However, the whole palaver is ridiculous – the Owens case demonstrates beautifully why our out-moded fault-based divorce laws need to be reformed. The current divorce law causes unnecessary pain, costs and delays and exacerbates the difficulties of couples whose relationships are over.