Marriage (Same Sex Couples)

Memorandum submitted by the LGBT+ Liberal Democrats (MB 04)

Call for written evidence: Marriage (Same Sex Couples) Bill

Liberals have campaigned for nearly forty years since the Liberal Party first agreed to support the Campaign for Homosexual Equality's Law Reform Bill in 1975. Many steps have been taken since then to enact equality through the passage of legislation. The Marriage (Same Sex Couples) Bill is part of that process. However, the Bill does not currently propose equal marriage.

At the moment the Bill will provide same-sex couples with the right to marry. Those religious organisations who wish to opt-in to providing ceremonies can, and it protects those that do not. It also allows married people who change legal gender to remain in their marriages without going through the process of divorce.

LGBT+ Liberal Democrats are keen to use the committee process of the Bill to ensure that there are amendments that achieve mixed-sex civil partnerships, restore the confiscated marriages of Transgender individuals, enables payment of full pension rights, that removes the permission need for the conduct of marriages in Embassies and Consulates and ensure that there are clear written criteria rather than personal choices on the part of staff in such foreign office roles in the conduct of such ceremonies.

Mixed-sex Civil Partnerships

If the law is to seek equality in matters such as partnership and marriage it is now highly anomalous that opposite sex couples cannot seek a civil partnership.

In 2010 Tom Freeman and Katherine Doyle, both 26, went to Islington register office to ask for the partnership – their request was turned down. It is time to reverse the anomaly that heterosexual couples cannot have a civil partnership.

Marriages of transgender individuals

The current situation of the treatment of individuals who were married and undertake gender change needs immediate change and restitution.

LGBT+ Liberal Democrats cite the example of one couple who were married in 2001:

The government used to agree that they had been married, but not anymore. In order to be legally recognised as female, the government demanded the annulment of their marriage. They were automatically divorced and issued with a decree absolute - the only official recognition that their marriage of 8 years happened: their original marriage certificate was even taken from them.

Marriages that survive transition of one or both partners are amongst the strongest there are. That the government currently requires their annulment in order to recognise that transition is a cruel irony. The couple had managed to convince themselves that this was just a bureaucratic exercise, that being civil partners would be the same, but they left the divorce court holding each other and crying.

That couple are adamant that when they were subsequently pronounced civil partners a few weeks later, it felt like they were being firmly told that they were not equal, that they were second class citizens, that they didn't deserve to call themselves married.

For transgender people, marriage equality is vital.

It must go further though: we need mixed gender civil partnerships, otherwise existing ones will continue to be confiscated. We also need the government make good the injustice done to couples and reinstate their original marriages, to give back what it stole. At present, the Bill is not proposing to do these things.

We strongly believe the Bill needs a means to restore the stolen marriages of transgender individuals and their partner.

There is no explicit provision in the bill for the re-issue of marriage certificates on transition showing new details. We believe that it is essential that the Bill makes the re-issue of marriage certificates explicit.

The Bill does propose to resolve an anomaly created by the Gender Recognition Act 2004 whereby a couple are forced to annul a marriage or civil partnership because one partner seeks legal gender recognition and instead allow continuity of the relationship across the change. However, it still leaves a large number of people who have had their marriages taken away and potentially been financially disadvantaged in terms of pensions and other rights in the intervening period.

We believe that there has to be a means where a civil partnership that is converted back in to its original form (i.e. a marriage) can be backdated to the date of the original marriage, restoring all original rights.

A further amendment will also be required to handle the reverse case (restoring a lost pre-transition civil partnership).

The consultation before the bill asked about "marriage regardless of gender" – the Bill as currently drafted fails that test. We urge the Bill Committee to consider taking specific further evidence on these issues. This quite literally the only chance we will have to address there anomalies

Payment of pension rights

As it stands the Bill will not require schemes to provide same-sex spouses with the same survivor benefits as heterosexual married couples.

The Bill explicitly retains loopholes excusing occupational schemes from providing the same benefits to gay and lesbian surviving spouses. Currently, the Equality Act 2010 dictates schemes must treat all members equally, but also gives schemes a get-out clause whereby they can base the survivor's benefit for civil partners only on service from 2005, when civil partnerships were created, if they wish.

Schemes usually provide married couples with a survivors' pension based on the whole of the deceased's pensionable service, regardless of the date of their marriage.

Although it is claimed the bill will address the inequalities between civil partnerships and marriage, it will actually allow schemes to treat same-sex marriages as though they were civil partnerships, rather than as heterosexual marriages.

In response to submissions to its consultation on the bill, the Home Office said: "To equalise treatment of all same-sex couples in a civil partnership or marriage with that of opposite-sex couples, would entail an unforeseen retrospective cost to schemes in a challenging economic climate when schemes are already under significant pressure."

It added: "Many schemes (we estimate two-thirds) choose to pay exactly the same survivor benefits to spouses, civil partners, unmarried partners and unmarried same-sex couples on a voluntary basis."

The Bill currently and, in our view, wrongly, retains this voluntary basis.

This comes after a successful legal challenge to the treatment of surviving civil partners, brought by human rights organisation Liberty on behalf of a scheme member.

Marriage overseas and consular marriage

In schedule 6 of the Bill there is specific clause that enables host countries to have the power to object to marriages taking place within UK consulates. In short we consider that to be wrong. The guidance notes further details the examples of Saudi Arabia and five other countries in the Middle East. It is not clear whether this power of objection applies to the conduct of all same sex marriages or only to those where only one of those seeking marriage is a UK national.

We strongly hope that this is simply a measure to prevent Saudi, or other non UK nationals, from using UK Consulates as way of being married against their national laws.

At the moment the legislation and the guidance gives the clear impression that the UK is giving the right of veto to the conduct of marriages within their own Consuls to the host nations. We believe that this would be a wrong precedent.

Further the Bill gives explicit facility to a consular official to refuse to marry – whilst we note that there is an appeal means available we are concerned that the right of refusal is so enshrined in law.

We feel it would be much more appropriate to have clear written guidance that specifies the terms under which any rejection or refusal might be made.

We trust that this submission is helpful to the deliberations of the Committee.

February 2013

Prepared 15th February 2013