The government’s plans to introduce gay marriage have caused a tremendous fuss in political circles recently. Traditional Conservatives have chosen to use UKIP’s success in the local elections to challenge the government’s policy on Europe and at the same time decided to try to scupper the introduction of gay marriage. It’s difficult to see why the two issues are connected, but somehow politically they are.
I will pin my colours to the mast now and make it clear that I am very much in favour of gay marriage. I believe that it is an idea whose time has come. I can see no sensible reason why gay couples should not be able to marry. I am not alone in that view. The opinion polls show massive support for gay marriage, especially amongst voters under the age of 40, where 5 out of 6 people are in favour. I heard a senior Tory saying recently that the introduction of gay marriage had offended enormous numbers of people. I think that a more accurate description would have been to say that it has upset enormous numbers of the Tory right, which is not at all the same thing.
Quite aside from the moral arguments about whether or not gay marriage is desirable, from a family solicitor’s perspective the fuss seems over the top. The reality is that the legal difference between gay marriage and civil partnerships is minuscule. There are some technical differences, but they are so boring and irrelevant to most people that I won’t bother telling you about them. Civil partnerships were introduced a few years ago with surprisingly little fuss; why gay marriage should cause this enormous political brouhaha now is astonishing. The battle against gay marriage was lost when the Civil Partnership Act became law.
One way that the anti-gay marriage lobby tried to derail the Marriage (Same Sex Couples) Bill was to argue that civil partnerships, currently only available for gay couples, should be extended to heterosexual couples. This would have necessitated a couple of years of consultation. In fact, allowing straight couples to have Civil Partnerships is a good idea, although I would not want it to delay the arrival of gay marriage. You may think, what’s the point? Why not just get married?
Initially I thought that introducing civil partnerships for heterosexual couples was pointless. However, it eventually dawned on me that successive government’s failures to introduce cohabitation law reform could be mitigated by the arrival of straight civil partnerships.
At the moment, cohabiting couples, whether they be straight or gay, are at a massive legal disadvantage if they separate. The court’s powers to resolve financial disputes between them is severely limited. It has nowhere near as much discretion as it does sin a divorce.
I often market my firm at networking events. During these things, you have to talk about your business for a minute or so. I often ask the assembled throng “To the nearest million, how many common law marriages are there in England and Wales? People usually make a guess and say “Two million” or “Three million”.
It’s a trick question. The answer is that there is not a single common law marriage in this country. Not one. They were abolished in the mid eighteenth century. This can often come as a nasty surprise to people when they split up from their partner and they discover that they may have absolutely no entitlement to a share of their assets.
The Blair administration did announce that it intended to introduce the Law Commission’s recommendations for reform of cohabitation law. This would have introduced limited ability to claim a share of their partner’s assets if the relationship lasted for a minimum number of years, not as much as in a divorce, but something that would have reduced the massive unfairness that often arises in these cases.
The last Labour government changed its mind about introducing this. The current government has no plans to change the law at all as it (the Conservative part anyway) considers that it would weaken marriage. I doubt that they are likely to change their mind about this any time soon given the fuss about gay marriage recently.
I decided that civil partnerships for heterosexual couples would be a good idea as there are some people who don’t want to be married, but would still like some level of formality and legal commitment to their relationships. If those relationships fail then there would be sensible laws and procedures to allow them to divide their assets between them in such a way as is fair and meets their needs and the needs of their children.
25 May 2013