Marriage (Same Sex Couples)

Memorandum submitted by O B Hepworth (MB 15)

Summary

This is a submission by a private individual in a Civil Partnership presently living abroad.

I have particular concerns that the Bill should address

· the practical questions of international recognition

· other observations and questions relating to aspects of the Bill

as a person who will be directly affected

About me :

1) I am a British citizen, 54 years of age, and have been in a same sex relationship for 27 years (registered as a Civil Partnership (CP) since 2005). We presently live in Australia and have a second home in France, as well as still having family and property and other interests in the UK. We have been corresponding with the MP for our last address in the UK for some years about these issues. From an early date in our relationship we have always regarded ourselves as married and it is very pleasing that the Civil Law of England and Wales is coming to recognize this. I was brought up in and remain a member of the Religious Society of Friends, to which my direct ancestors have belonged for many hundreds of years. My view of my own marriage is grounded in my religious belief but I am aware that most marriages nowadays are not celebrated in religious ceremonies and I do not accept that marriage is of any greater significance to religious people than it is to the non-religious. It is somewhat frustrating that so much of the discussion about this Bill has revolved around religion with the risk that the real importance of the Bill, and those whom it really affects, are in danger of being lost sight of.

2) I am somewhat concerned to read that several members of the Committee are people who have gone on record as being fundamentally opposed to the central principle of the Bill and I wonder how that will work. I hope they will feel able to work positively to implement the purpose of the Bill.

3) I think it is very important for the Committee to restrict itself to consideration of the Bill to its principle purpose – providing for same sex marriages – and not to get distracted by issues that do not relate directly to this purpose, such as Humanist weddings, opposite sex civil partnerships and issues relating to other close family members sharing a home.

4) I wanted particularly to draw to the attention of the Committee the issues relating to international recognition, where there were serious problems with CP’s, and which I feel need careful scrutiny. I also have some other points about the Bill in general.

5) International Recognition

a) One of the serious problems associated with CPs (partly due to their being unique to the UK) was the difficulty of international recognition and understanding by foreign authorities. We personally faced huge problems because, for many years our CP was not recognised in France, except insofar as its existence debarred us from performing the French approximate equivalent (PACS), with the result that we faced huge and real disadvantage in French Tax. Even if we had wanted to we could not get out of our UK CP (because our relationship had not broken down) and thus we were stuck. The UK authorities were of no assistance, insisting that this was a French sovereign matter and even declared (against common sense) that the general non-disadvantage clause in the UK:France treaty for the avoidance of Double Taxation did not apply to us, based on the unlikely scenario that two French citizens in a UK CP would have been treated in the same way. The British Consulate in Paris even told us we would be committing bigamy if we entered into a French PACS at the same time as being in a UK CP. The only avenue we had was to get the French law changed, which took several years and an enormous amount of work and cost, and depended upon the goodwill of a number of French politicians. This problem would never have arisen had we been registered as ‘married’ as the France always recognized foreign same sex marriages.

b) I presume the likelihood of a similar situation should be greatly lessened with this Bill because of the universal understanding and recognition of marriage. However, France is only one example. There are over 200 other countries in the world and many more official languages. It is entirely possible that many of these countries, whilst they may have their own form of same sex union or marriage, will not give any status to either UK marriage certificates for a same sex couple any more than they do a UK CP and thus, because of this, special provision should be made for same sex couples. A couple in a UK CP or marriage, living abroad, may need to end that CP or marriage in order to be eligible to register a foreign partnership.

I think it is essential that :

c) It must be clear that what is being registered will be ‘marriage’ as defined in international private law and not something that could be confusing to foreign authorities eg ‘gay marriage’, ‘same sex marriage’ or any other variant of the name

d) The UK should make all possible efforts to ensure that foreign governments understand what is being done by the Bill (the wording of the Bill is somewhat obscure, with so many references to other Acts etc, and what it is all about may not come across very plainly in translation) and seek mutual recognition.

e) There should be either provision for ending a same sex Marriage or CP if it is necessary to do this in order to re-register the same couple in a foreign jurisdiction or provision that the marriage or CP will automatically terminate on the new registration (thus allowing for the issuing of a Certificate of No Impediment by the UK authorities)

Other International Aspects :

6) I wonder why schedule 6 (marriages overseas) is necessary & how does it differ from the law relating to opposite sex couples?

7) Why should marriages in UK Embassies / Consulates be subject to veto of the local authorities (1/2/c) – are they not sovereign British territory?

8) Please ensure there is provision for couples in UK CP’s living abroad to convert to Marriage and that, the conversion shall not be subject to the veto of the country of residence (in our case Australia)

9) Sch 2/pt3 – specifies that foreign same sex marriages will not be treated as CP’s’ – is it clear that they will be treated as Marriages?

Fees & Registration

10) Conversion of CP’s into Marriages - There should be no cost to the parties for converting pre-existing a CP to a Marriage – with respect to Parliament, it is not the fault of the parties to pre-existing CP’s that they were not initially instituted as ‘Marriages’

11) I note that the Bill provides that religious premises already registered for the conduct of marriages must be additionally re-registered for same sex marriages; I cannot see anything about fees for this second registration but would submit that, in the interests of fairness, no fee should be charged for this secondary registration as the secondary registration process is only imposed as part of the mechanism to ensure exclusion of those churches that don’t wish to join in, not for the benefit of either same sex couples or the denomination seeking registration – thus it would be equitable for the cost to be borne by the whole community. (I note that a recent survey of Local Council charges for the registration of premises to conduct CP’s on religious premises show that these are up to 16 times higher than the equivalent fees in respect of Marriages)

Other Observations

12) Consummation – plainly this is not a requirement for a marriage to be accepted as such but merely one possible justification, at the option of the parties, if they wish an annulment. It has become to a large extent outdated now most couples sleep together long before they contemplate marriage. Whilst I do not feel this is a serious issue for same sex couples I do not think this Bill is the time to consider its removal for all. In the interests of equality I see no reason why can’t be included in the Bill; I do not see any need to define or standardise same sex consummation – perhaps consummation for same sex couples could be defined in accordance with reasonable expectations of the parties, or perhaps left to the Courts to determine. Incidentally I do not think it reasonable to require consummation (whether for same or opposite sex couples) if one party has a sexually transmittable infection (eg HIV) but equally there is no reason to prevent marriage in such cases

13) Adultery – again I don’t think this is a vital issue but why exclude it? Define it or leave it to courts to decide. I refute the offensive suggestion made by some that its exclusion is because same sex couples are less capable or inclined to fidelity.

14) Presumption of parenthood – Sch 4 Pt 2 – specifies that s.11 does not extend the common law presumption that a child born to a woman during the continuance of a marriage is also the child of her husband; Whilst I don’t understand the implications of this provision I would say that there should be a presumption of parental responsibility on both parties to a marriage regarding any child born to or adopted by either party or born to a surrogate mother under and arrangement made by either party during the continuance of the marriage.

Civil Partnerships

15) Whilst it may now be regretted that the CP name, which appears to be marriage in all but name, was ever invented in order to register same sex partnerships without recognising them as marriages, I agree that the Civil Partnerships regime needs to continue

· for those existing CP’s who do not wish to convert to marriages

· in order for the recognition of foreign civil unions / partnerships which are not marriage

16) Whether it is necessary to continue to allow new CP’s to be registered is more questionable. To some extent their continued existence may undermine the institution of marriage and obviously there is a cost to having a parallel system. However, as some countries still only have CPs and don’t accept same sex marriages the retention of CP’s may be necessary as same sex couples need more choice because of these problems.

17) The idea of allowing opposite sex CPs is misguided. There is a strong argument that there should be provision for some sort of registerable relationship (open to all couples regardless of sex) that is distinctly different from ‘Marriage’, perhaps akin to the French PACS (which, whilst always imposing mutual responsibility, is characterised by being a fairly unrestricted, registerable contract which can be tailored to suit personal circumstances, does not create formal family relationships and which can be started and ended under the normal law of contract), but CP’s do not meet such a need. CPs are essentially ‘Marriage’ in all but name and the mere difference of name is insufficient reason to have a dual system with the consequent confusion, duplication of systems and costs. Being so similar, CPs would also threaten to detract from the special status of marriage and have more problems of international recognition. There is also a strong argument for some more legal protection/regulation of long term de facto relationships, particularly where children are involved. But the present Bill is not the place to be dealing with what should be totally separate issues requiring much consideration, and the principle of which was not voted on at Second Reading.

Religious Freedom

18) I dispute absolutely the notion that same sex couples wish to force churches to perform weddings against their beliefs; who would want to be married by a Church that does not welcome them? We all hope that churches will come to accept such couples but acceptance will be meaningless if it not given freely and in love

19) Why is it necessary for the Bill through the civil law to superimpose uniformity and artificially enforce the power of the central authorities of each denomination on all member churches of each religious denomination? Is that not an unnecessary interference with religious freedom? Is it not proper to leave it to the private rules of each denomination as to whether they require uniformity and conformity in this matter?

20) Whilst I am not a member of the Church of England I somehow feel that it belongs to all of us. It is plainly not a private cult entitled to its own private conscience. One of its proudest boasts is that it is at the heart of, and serves, the whole community, whether members, believers or otherwise. Whilst I am sure it is correct that, even being the established church, no compulsion should be applied to the Church of England to serve the same sex community as they do others, it is a matter of public record that many of its member churches and individuals would wish to do so. I question whether the Bill should be placing additional hurdles in the way of allowing diversity and freedom of religious practice within the Church of England.

February 2013

Prepared 15th February 2013