Abolishing Marriage: Can Civil Partnership Cover it?
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- Beresford, S. & Falkus, C. Liverpool Law Rev (2009) 30: 1. doi:10.1007/s10991-009-9053-1
This paper argues that all adult intimate relationships should be regulated under one single statute. This statute should be the Civil Partnership Act 2004 (which currently applies to same sex couples). The Matrimonial Causes Act 1973 (which applies to opposite sex couples), should be repealed; it should not be amended to include same sex couples. There would, as a consequence, be no such thing as (legal) marriage. Marriage as a legal construct is a heterosexual and patriarchal institution and is therefore so fundamentally flawed it is beyond the possibility of successful reform or repair. The present system of having two distinct legal means of relationship recognition is akin to sexual apartheid and is therefore unsustainable in the long term. Having a legal system which recognises only one form of legal partnership would therefore formally end a discriminatory system. Despite its drawbacks, Civil Partnership does not have the same extent of symbolic and practical degree of flaws as Marriage.
KeywordsCivil partnershipMarriageOpposite sexSame sex
This paper argues that the legal concept of marriage should be abolished, specifically, that the Matrimonial Causes Act 1973 should be repealed and that the Civil Partnership Act 2004 be amended to extend to opposite sex couples. Instead, all adult intimate relationships should instead be regulated through a single model, Civil Partnership. We point out that same sex couples cannot legally marry and we outline some of the main reasons why this is the case. We demonstrate that law wants marriage to remain heterosexual, by endorsing two different types of legislation for the regulation of intimate relationships.
We argue that it is preferable to legally abolish marriage rather than attempt to reform it. To deliberately misquote Groucho Marx, we do not want to belong to a club that so demonstrably doesn’t want us as members. We do not argue that heterosexuality should be removed from marriage per se; rather we argue that the State regulation of intimate relationships should have marriage removed from it. The State should utilise only Civil Partnership to recognise and regulate intimate relationships, whilst allowing people to continue to marry if they wish to do so.1
When it was introduced, the Civil Partnership Act 2004 could have encompassed the regulation of both opposite and same sex intimate relationships. Instead, it stopped short of this, regulating only same sex couples.
The very existence of an un-amended Civil Partnership Act 2004 represents sexual apartheid; consequently, same sex couples are still ‘second best’. We are not arguing that an amended Civil Partnership would address any or all concerns relating to heterosexism, but it would allow for an interruption to that discourse. Indeed there are criticisms of the Civil Partnership Act.2
As we will show, Marriage is a flawed institution, but it has deep symbolic and religious meaning to many people.3 Other jurisdictions have, or currently attempting to, amend their laws to legislate for same sex couples, South Africa and Canada being recent examples which have faced strong opposition.
What we explore below are some of the failings that have arisen from the law’s attempts to utilise marriage to recognise and regulated intimate relationships. ‘Marriage’ is imbued with discriminatory concepts and constructs. As pointed out by Boyd, the focus on marriage as a human right tends to render invisible, and to reinscribe, the extent to which marriage as a socio-legal institution has operated in oppressive ways. Modern marriage is not innocent of oppression.4 Law presents its decisions as common knowledge’; ‘neutral’; ‘common sense’; ‘fact’. As such, law’s discourse requires little or no further justification; it is ‘taken for granted’. Law continues to insist on interpreting concepts such as adultery and consummation according to heterosexual parameters. Our aim is to demonstrate that these terms are flexible; they can be interpreted in many ways. The fact that UK law continues to interpret these terms in the way(s) that they do is therefore due to choice, not inevitability. In this context, legal discourse continues to use language that is un-critiqued in order to exclude same sex couples and keep the institution of marriage heterosexual. The language of law needs constant re-examination in order to interrupt discourses that give certain concepts particular and privileged meanings.
‘Marriage’ and the Regulation of Intimate Relationships as Between Adults
‘Marriage’ was, and indeed, still is, defined in English law by the case of Hyde v Hyde , LR 1 P & D 130 as;
“The voluntary union, for life, of one man and one woman to the exclusion of all others”.5
it must be voluntary
it must be for life
it must be between one man and one woman, i.e. it must be heterosexual
it must be monogamous.
Penzance’s approach found statutory approval in s.11(c) of the Matrimonial Causes Act 1973 which reflects the third of these four, stating that a marriage shall be void if the parties are not respectively male and female. Thus, “A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say -….. (c) that the parties are not respectively male and female”.
The terms ‘marriage’; ‘male’; ‘female’; ‘man’ and ‘woman’ are now problematic for dominant legal discourse in ways not previously envisaged. With the advent of a new awareness of social and cultural diversity; human rights and reproductive technology, each of these ‘taken for granted’ terms has to a certain extent been re-defined and re-evaluated. However, what re-evaluation there has been has taken place within the dominant discourse of heterosexuality. So for example, whilst there is arguably a growing acceptance of families that are socially constructed rather than just biologically constructed, the Civil Partnership Act 2004 represents legislation that expressly promotes heterosexuality.
[I]t is clear … that marriage is more than simply a set of legal rules. It has a symbolic significance that exits beyond, and sometimes in spite of, the legal and material reality. Marriage confers upon individuals the highest social status and approval. That is what makes the concept of registered partnerships or civil unions qualitatively different from marriage, even if legally speaking, they guarantee the same rights.6
demonstrable assigning of same-sex, largely homosexual, couples to second-class status. … America had demonstrated that separate is seldom, if ever, equal.7
Writing the majority opinion, Marshall C.J., stated that ‘Marriage is a vital social institution’8 and that civil marriage should be construed;
to mean the voluntary union of two persons as spouses, to the exclusion of all others.9 (emphasis added).
In June 2003, the Canadian Appeal Court of Ontario unanimously held that the common law definition of marriage offends the rights of same sex couples’, and that the current common law definition of marriage was invalid.10 The definition of marriage in Canada, for 136 years, was based on that given by Lord Penzance in Hyde v Hyde and Woodmansee. The Canadian Appeal Court stated that;
[S]ame-sex couples are excluded from a fundamental societal institution—marriage. The societal significance of marriage, and the corresponding benefits that are available only to married persons, cannot be overlooked. … Exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships. In doing so, it offends the dignity of persons in same-sex relationships.11
Interestingly, for the development of UK law, the court pointed out that heterosexual married couples would not stop having or raising children because same-sex couples were permitted to marry;
We fail to see how the encouragement of procreation and childrearing is a pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution. Heterosexual married couples will not stop having or raising children because same-sex couples are permitted to marry. Moreover, an increasing percentage of children are being born to and raised by same-sex couples.12
However, the New York Court of Appeals and The Georgia Supreme Court rejected the approach used by the Canadian courts and the Massachusetts Supreme Judicial Court. In the case of Sonny Perdue, Governor v Judith R. T. O’Kelley et al. S06A1574, the Georgia Supreme Court ruled that a state law defining marriage as between a man and a woman is constitutional, finding that any new meaning for such an old institution would have to be written by the state legislature, not the courts (The decision was a majority one; Judge Robert Smith gave the leading judgment with two dissenting opinions, given by Chief Judge Judith Kaye who spoke for both dissenters). The Georgia Supreme Court upheld an amendment to that state’s constitution, which prohibits gay partners from marrying or claiming benefits under a civil union. The leaves Massachusetts as the only American state where same sex marriage is legal. Vermont and Connecticut allow civil unions.
In the case of Hernandez v Robles 2005 NYSlipOp 09436, the New York Court of Appeals also put forward ‘procreation’ as a basis for its decision. However, they used what the authors regard as a bizarre argument that heterosexuals need the boundaries afforded by marriage to help prevent them embarking on ‘reckless procreation’. As R.S. Smith J said in the opening judgment;
“The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.”
The presumption that a heterosexual married couple provides the best environment for the upbringing of children was supported by the UK Government in the debate leading to the Civil Partnership Act 2004. During the Parliamentary debate in the passage of the Civil Partnership Act it was stated for the Government that;
This Bill does not undermine or weaken the importance of marriage and we do not propose to open civil partnership to opposite sex couples. Civil partnership is aimed at same sex couples who cannot marry. We continue to support marriage and recognise that it is the surest foundation for opposite sex couples raising children.13
The contorted conceptual objective of Civil Partnership appears to have been how to ‘make it look like marriage’ without it being named marriage and preserving the distinct institution of marriage for heterosexuals. By continuing to withhold legal marriage to same sex couples, the State is denying those couples ‘the highest social status and approval’, and has formally created a hierarchy of legal recognition, placing same sex couples beneath that of opposite sex couples.
This stated position of the Government caused discontent both to groups who seek equality, and groups seeking to prevent any perceived undermining of the status of marriage. Some have argued vociferously against Civil Partnership for same sex couples, not because it represents a form of inequality, but because it undermines the institution of marriage. For example, the Christian Institute has stated that; “Government’s proposals for civil partnerships … devalues and undermines the institution of marriage.” (The Christian Institute).14 The Church of England produced two main documents opposed to the introduction of Civil Partnership; The Archbishops’ Council’s Response to the Civil Partnership Bill and The House of Bishops’ Pastoral Statement on Civil Partnerships. The Roman Catholic Archbishop of Cardiff has stated that the Civil Partnership Act 2004 law would have “negative consequences”, and that the Government should,
[S]upport marriage rather than undermine it. To put beside marriage an alternative or what appears to be a perfectly approved legal alternative lifestyle I think does not help the institution of marriage at all.15
Other voices have argued that the mere existence of the Civil Partnership Act 2004 is akin to sexual apartheid (Peter Tatchell, quoted in The Guardian, 3rd April 2004). The pressure group Outrage! has argued that a separate statute;
[E]ntrenches inequality and unnecessarily perpetuates discrimination. In effect, it creates a sort of sexual Apartheid, where separate development paths are installed to define and manage the legal rights of same- and opposite-sex partners.16
Such views are clearly at odds with the Governments stated views on ‘equality’. The Government stated that;
The Government is working to put an end to all forms of discrimination, including sexual orientation.17
Further, the Deputy Women and Equality Minister (Jacqui Smith) stated that;
This legislation … demonstrates the Government’s commitment to equality and social justice.18
Despite the claims to ‘equality’ that the Government has made in relation to the Civil Partnership Act 2004, the authors argue that equality is far from being achieved and that several practical and symbolic inequalities and inconsistencies remain.
This inequality is in contrast to other countries in the world that have recognised same sex marriage, namely the Netherlands, Spain, Belgium and Canada.
In the South African case of Minister of Home Affairs and Another v Fourie and Another  CCT 60/04 the Constitutional Court stated that the South African Marriage Act of 1961 was unconstitutional because the wording of the statute allowed only for marriages between men and women. The Court ordered that the definition of marriage be changed from a “union between a man and a woman” to a “union between two persons”.19 The court ruled that;
the common law and Sect. 30(1) of the Marriage Act  are inconsistent with sections 9(1) and 9(3) and 10 of the Constitution to the extent that they make no provision for same-sex couples to enjoy the status, entitlements and responsibilities it accords to heterosexual couples.20
The result of the South African Constitutional Courts ruling was the South African Civil Unions Bill. The South African cabinet approved the bill in August 2006 which is due to be heard by parliamentary committee in September 2006.
Sex is clearly an essential determinant of the relationship called marriage because it is and always has been recognised as the union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element.21
Consummation has a specific meaning within the context of heterosexual relationships and it would not be possible nor desirable to read this across to same sex civil partnerships.22
Adultery has a specific meaning within the context of heterosexual relations and it would not be possible nor desirable to read this across to same sex civil partnerships.23
However, whilst the UK Government might struggle with the concept of non-heterosexual adultery, other jurisdictions have not. In the Canadian case of P. (S.E.) v P. (D.D.)  BSSC 1290, the Supreme Court of British Columbia stated that same sex couples can, legally, commit adultery. The applicant successfully argued that the definition of adultery couldn’t be limited to extra-marital sex between a man and a woman. What the authors find of particular interest was the courts re-definition of the concept of matrimonial ‘offence’. The judge stated that the ‘wrong’ was not the so-called ‘traditional’ heterosexual act of penile penetration, but a betrayal of trust. Additionally, the judge did not consider it ‘necessary’ or ‘desirable’ to define the types of intimate sexual activity that might constitute adultery;
In the modern understanding of marriage, the wrong for which the petitioner seeks redress is something akin to violation of the marital bond. Viewed from this perspective, the heterosexual nature of the sexual acts is not determinative. Intimate sexual activity outside of marriage may represent a violation of the marital bond and be devastating to the spouse and the marital bond regardless of the specific nature of the sexual act performed. … In this case, the evidence of an intimate sexual relationship outside of Mr. and Ms. P’s marriage is sufficient to grant the divorce on the grounds of adultery, notwithstanding that the act alleged was a same-sex sexual act. Adultery may include same-sex sexual acts where as here the evidence supports a finding that such has occurred.24
In the Framework documents, the Government do not elaborate on what was meant by ‘specific meaning’ in relation to either adultery or consummation. In some respects, the Governments argument is circular and self fulfilling; adultery and consummation are defined by heterosexual intercourse; lesbians and gay men do not have heterosexual intercourse; therefore Civil Partners cannot commit adultery or consummate their relationships. The above Canadian case of P. (S.E.) v P. (D.D.) demonstrates that it is ‘possible’ to redefine adultery, leaving us with the sole argument that it would not be ‘desirable’ to redefine adultery. Again, the Government did not elaborate on what is ‘undesirable’ about reading adultery and consummation into same sex relationships. Such a refusal is, in the authors’ opinion, an example of the desire to ‘keep marriage heterosexual’ and that only heterosexual sexual activity is capable of being expressly legally recognised within the context of intimate relationships. The authors would suggest that the reasons given by the Government are weak. If the concepts of adultery and consummation are so important in opposite sex marriage, it is surprising that the Government only devoted a small amount of space to these issues in their framework document. There are perhaps other reasons as to why adultery and consummation remain heterosexually defined. The Governments choice was to delete adultery and consummation altogether as legal categories or redefine them.
We suggest that the Government would prefer to ‘put the blame on the courts’, rather than legislate for same sex marriage. The Government got their wish sooner rather than later. Soon after the Civil Partnership Act became law in December 2005, it was challenged on the grounds of inequality. In Wilkinson and Kitzinger v Lord Chancellor  EWHC 835 (Fam), a lesbian couple who had entered into a legally valid marriage in Canada, sought legal recognition of their Canadian marriage. Celia Kitzinger and Sue Wilkinson were legally married in Vancouver in 2003. They argued that the UK Government should give legal recognition to their Canadian marriage under s.55 of the Family Law Act 1986. S.55 Family Law Act 1986 provides that in order for an overseas marriage to be recognised in the UK it must be shown that the marriage was legal, recognised in the country in which it was executed, and that nothing in the country’s law restricted the parties’ freedom to marry. Kitzinger and Wilkinson argued that the failure of the UK Government to recognise the validity of their marriage constituted a breach of Articles 8 (right to respect for private and family life), 12 (right to marry) and 14 (prohibition of discrimination) (taken together with Article 8 and/or 12) of the European Convention on Human Rights. Currently their Canadian marriage will only be recognised in the UK as a Civil Partnership. The UK Government argued that it was unnecessary to extend marriage to same-sex couples because Civil Partnership satisfied all the demands of equality and the requirements of the ECHR and that it did not impose any practical or financial disadvantage. The Government, represented in court by the Attorney-General and the Lord Chancellor, further argued that Wilkinson and Kitzinger’s application was ‘misconceived’ as legal marriage in British law was between a man and a woman. However, these arguments are hard to sustain when considered within the context of the sexual apartheid argument made above.
When the case was heard, Wilkinson v Kitzinger  EWHC 2022 (Fam), Potter J refused the appeal. He based his decision on the reasoning that law had long defined marriage as being between one man and one woman and that this longevity in itself justified its continuing existence. He quoted, with approval, Hyde v Hyde (see above), and stated that there was no obligation on the UK Government to give legal recognition to relationships such as Wilkinson and Kitzinger’s. The reasons for this were as he stated;
It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children.25
Although Potter J accepted that although there was discrimination, this was justified on the basis that by longstanding definition and acceptance, the primary aim of marriage was procreation, and therefore, to give civil partnerships the same status as marriage would be to fail to recognise ‘physical reality’.26 This is a particularly narrow interpretation of the term procreation. Potter J did not elaborate on what was meant by ‘physical reality’, possibly meaning by this that the partners in same sex relationships cannot both be the biological parent of children of the family.
The judgment of Potter J was criticised by Peter Tatchell who pointed out that;
Potter effectively declared that homophobic discrimination was justified in order to protect the tradition of heterosexual marriage. … the law is right to uphold the legal supremacy of heterosexuality.27
In examining this case in isolation, we would argue that they should have won their case as the arguments put forward in Potter’s judgment, are we argue, unsustainable. However, in a wider context, the couple should never have had to fight this case. If all relationships were governed by civil partnership as opposed to marriage, there would be no case to fight, win or lose. Unfortunately for them, Kitzinger and Wilkinson were not able to pursue their appeal due to lack of funds. Had they been able to, it is likely that the UK Government would have been forced to recognise their Canadian marriage as a marriage valid under UK law. Marriage, as it is currently defined, would cease to exist and the UK Government would have been forced to re-evaluate the legal construction of marriage as exclusively heterosexual or move to Civil Partnerships for all. Part of this re-appraisal would necessitate a re-definition of concepts such as adultery and consummation; either consummation or adultery are abolished as legal concepts, or they are no longer defined along heterosexual lines. Once these are no longer defined exclusively in heterosexual terms, they cease to have definitional validity. The approach taken by P. (S.E.) v P. (D.D.) above could be a model for the courts of this jurisdiction. Despite the Civil Partnership Act 2004 being a relatively recent Statute, the Wilkinson and Kitzinger case could have provided a much needed opportunity to re-appraise some of the heterosexist assumptions pertaining to marriage, such as adultery and consummation.
The authors would argue that such a move from the recognition of marriage to Civil Partnership as the only lawful unions recognised by the state could hold many advantages; including removing any negative historical connotations of marriage, and would further facilitate the symbolic separation of religion and state. Given the importance of religious and cultural diversity in the UK, any couples that wished to do so could still enter a religious marriage, but this would not be given legal recognition by the State. Couples who wanted their relationship regulated by law would henceforward go through an (entirely secular) Civil Partnership. There would be no legal significance to heterosexual sex.
It has always been the teaching of the Church of England that marriage—that is, faithful, committed, permanent and legally sanctioned relationships between a man and a woman—is central to the stability and health of human society. In our view it continues to provide the best context for the raising of children. For that reason it warrants a special position within the social and legislative framework of our society.28
Their statement went on to say that the Church of England believed that it was in the ‘interests of society for marriage to continue to enjoy a unique status.’29 Clearly, as we have seen above, other jurisdictions, such as Canada, no longer require that marriage enjoy a unique status in order to fulfil the interests of society. Nor does the Canadian legal system require evidential investigations into the precise nature and degree of ‘consummation’ or ‘adultery’, as these are no longer specific to heterosexuality. Yet again as we have seen above, it would appear that the British Government was unable and/or unwilling to question these ‘taken for granted’ terms, as such, they remain therefore, heterosexual in definition. If these terms remain, they must logically be there for a reason. They remain, we argue, because retaining heterosexual intercourse as a legally significant act provides a readily identifiable difference between same and opposite sex couples. If the requirement to have heterosexual sex is removed as a legally significant act, then there is no difference between same and opposite sex couples. The difference between the Marriage and Civil Partnership is exposed for what it really is; namely a farce. To maintain the difference based on a particular sexual act is to continue to privilege marriage.
There is no doubt that the Civil Partnership Act 2004 should be recognised as representing progress notwithstanding its flaws and anomalies. There is a significant difference between the choice of ‘Civil Partnership’ and ‘no Civil Partnership’; or indeed having to choose between ‘Sect. 28 of the Local Government Act 1988’ and ‘Civil Partnership 2004’. However, we do not accept that the debate begins and ends within this context. It is similar to being told that it’s either ‘separate but equal education’, or ‘no education’. (An argument rejected by the American Supreme Court in 1954 in the infamous case of Brown v Board of Education, 347 U.S. 483 (1954)). We do not want to be separate but equal. Whilst heterosexual intimate relationships continue to be privileged through the legal recognition of marriage, same sex civil partnerships to a large extent remain ‘second best’.
Opinions of the Justices to the Senate, 802 N.E.2d 565, 569 (Mass. 2004).
Halpern v Attorney General of Canada  O.J. No. 2268, at paragraph one.
Per Marshall C.J., at paragraph IV.
Halpern v Canada (Attorney General).  O.J. No. 2268.
At Paragraph 107.
At Paragraph 121.
Hansard, Lords, 22nd April 2004 at para 388.
Christian Institute (2003). Response of the Christian Institute to Civil Partnership—a framework for the 419 legal recognition of same-sex couples, at page 1.
BBC news Website, 4th December 2005.
Press release issued by Outrage! 30th September 2003.
Women and Equality Unit.
Women and Equality Unit Press release, 21st February 2005.
The Times Online, 2nd December 2005.
Minister of Home Affairs and Another v Fourie and Another  CCT 60/04, per Justice Sachs at paragraph 118.
Per Ormrod J, Corbett v Corbett (otherwise Ashley)  2 WLR 1306.
Department of Trade and Industry Women and Equality Unit, Responses to Civil Partnership: A framework for the legal recognition of same-sex couples, November 2003.
Department of Trade and Industry Women and Equality Unit, Responses to Civil Partnership: A framework for the legal recognition of same-sex couples, November 2003.
P. (S.E.) v P. (D.D.)  BSSC 1290, per Justice Garson at paragraphs 49 and 50.
Potter J at paragraph 118.
Potter J at paragraph 120.
“Equality is still a dream”, Guardian unlimited. 2nd August 2006.
Church of England Response to DTI Consultation Document, at Paragraph 3.
Church of England Response to DTI Consultation Document, at paragraph 11.