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Jo O'sullivan

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Is separate marriage provision for LGBT couples really equal?

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Is separate marriage provision for LGBT couples really equal? 

I am very pleased to welcome Bridget Garrood to this blog.  We first worked together many years ago, in around 2002, when we advised on the draft Civil Partnership Bill.  We were both members of the Lesbian and Gay Lawyers Association (LAGLA). Bridget is now a member of the UK & Ireland LGBT Family Law Institute, and also sits on The  Law Society's  LGBT+ Lawyers Division Committee where she currently  leads their project team for trans and non-binary inclusion. I am Co-Chair of Resolution's Equality, Diversity and Inclusion Committee.  I think it's fair to say that we are both passionate about equality for our community but also all those marginalised by mainstream society.

I attended a Stonewall Lecture at the Law Society in 2001 and the speaker, Kees Waaldiijk, talked about 'The Law of Small Change'. This is because at the time the Lesbian and Gay community had been making piecemeal challenges to the law by bringing cases and therefore changing the law. These did help to bring about some equality e.g. Being able to work in the armed forces as a lesbian or gay man. But it was slow work. The speaker estimated that the Lesbian and Gay community would have to wait until 2025 to achieve equality.  Imagine my surprise when the Labour government suggested the Civil Partnership (CP) Bill to parliament in 2002!

I remember, back in 2002, that we (for me the first time) looked at the Marriage Act and thereafter the Matrimonial Causes Act to see if there were differences in the newly proposed CP legislation and that which applied to straights. We were very keen to make sure it was as equal as possible to mimic straight marriage.

Bridget, how did we get on in that endeavour?

Bridget: So happy to revisit these memories Jo as the LAGLA project team we worked in together still ranks as a career highlight. I had joined LAGLA as an articled clerk in 1994 but had never met another member until I took up the offer to join the group which came together specifically to respond as Lawyers. For the first time I understood the combined lobbying power of an incredibly diverse group of Lesbian and Gay Solicitors and Barristers. Between us we covered all the angles affecting same sex couples and families, not just the family law implications  regarding financial issues and gay parenting and domestic abuse, but we had to think through some mind boggling international aspects, such as whether and how different countries may recognise same sex relationships given no two countries had evolved the same systems. Some countries already recognised same sex marriage whereas others had hostile regimes. There were also implications for pension survivor rights , welfare rights, immigration, housing, inheritance & wills, mental capacity,  and for trans people who were at the same time gearing up for legal recognition. We had specialists in the LAGLA team in many of these legal disciplines and I took on the task to study the pension survivor rights due to my Resolution accreditation in pensions on divorce. This turned out to be the most controversial as the White Paper did not include equal pension survivor rights and we were determined to ensure that this injustice was addressed. We worked with Stonewall and lobbied hard. Eventually the government was persuaded to include some limited survivor rights but few people are aware that these are still unequal in many cases for older people. Did you have a particular area as a family lawyer which you took on Jo?

Jo: You did some amazing work Bridget and I really felt you knew your stuff; getting any recognition for civil partner survivor (widow/widower) was really significant. After all, the actuaries assumed that people would marry but as we couldn't the funds distributable were higher because we couldn't make any such claims. Furthermore, no sharing was possible when lesbian and gay couples separated; no matter how long they were together.

Confession: I read the whole draft Civil Partnership bill on the train to London and then in the café of The Tate Modern. It was a long day of reading.

I cried.

I had not realised the breadth and dept of the discrimination we faced.  A silly thing to remember but The Slaughterhouses Act 1974  had a section that states that 'Mrs Slaughterhouse' can run the abattoir if 'Mr Slaughterhouse' dies.  A little known benefit of being married!

I worked on the formalities for forming or registering a civil partnership. As a divorce lawyer I had never read about or really knew about the technicalities of marriage.  Who is allowed to form a CP and the technicalities surrounding its formation, location of the 'ceremony', provision for the housebound, those detained, those abroad, ill or in the armed services.  It was really interesting work. 

As you say I felt we had the hand of history on our shoulders; that this was our one opportunity to turn the tide of the endless discrimination we had faced and move towards equality.

Interestingly at the time, I was content with CP being enough. I did not really want to have the same system as straights (I was pretty angry back then). We were different and lived our lives often separately, mixing with mostly with other gay or lesbian people. But I now think I was wrong. What do you think?

Bridget: I don't think it's wrong to feel protective of the limited and often fragile safe spaces which LGBT+ communities had created of necessity given the history of persecution and criminalisation which so many in the world still contend with today,  but my own aversion to  marriage for myself arrived from a feminist perspective. Digressing slightly here but picking up on your interest in marriage formation I should add that I volunteer as a legal consultant for  a research group as part of a  history project (The Exeter Dissenters Graveyard Trust). In that role I was recently asked to look into the baffling matrimonial concept of coverture whereby a single woman's separate legal personhood and property was subsumed into that of her husband on marriage. This was a legal fiction of course, just as a company is legally recognised as a separate legal “person” and can be sued and held liable  as such. Under coverture a wife and husband became one legal person, hence the Married Women's Property Acts of the late 19th century were a necessary "liberalising" stepping stone on the route to women's suffrage, given the link between early voting rights and land ownership.

This is similar to the way that the Civil Partnership Act is  with the benefit of hindsight often described  as  a liberalising stepping stone on the route to full marriage "equality”.  Actually the recognition of same sex partnerships for the first time in this jurisdiction was by far the greatest legal  leap forward and  of itself was hugely radical  because it was so challenging to so-called "family values" i.e. cis  heterosexual families .  The passage of the Adoption Act 2002, which allowed same sex couples to adopt,  had been another huge legal leap forward , predating the Civil Partnership Act 2004. Each of these statutes represented huge legal strides forward in terms of LGBTQ legal progress after years of stagnation and regression eg section 28.  This  was where the political and legal  battles for equality and acceptance were won, and it was social acceptance which followed so surprisingly swiftly. This paved the way for a Conservative government to claim Marriage Equality as Cameron’s “proudest achievement” but this was by then a relatively “quick win”

Jo: It’s scary how easily the history of family law and our struggles for basic human rights  as women as well as for  LGBT+  people can be erased.  

 Bridget: Exactly. Under coverture , marriage enabled a woman to cast off the stigma of spinsterhood, but the price paid amounted to whole  bundle of legal incapacities and disabilities supposedly of course designed for the "protection" of those very women. A reminder of  this long history of oppression of women by men is still apparent whenever a bride is "given away" by her father to her groom and/or substitutes her father's surname for her husband's . Many lawyers will remember being that taught the "correct " way to address a letter to a woman will change on marriage  from e.g. Miss Jane Brown to Mrs John Smith, and only  if widowed then to Mrs Jane Smith.  Mrs is reputed to mean "belonging to Mr" but I have no idea if that is actually true or not. There is however no equivalent change of address for a woman who marries another woman so sensible  lawyers may prefer to stick with the feminist preference of "Ms" rather than address a same sex wife as Mrs . I confess that I not only  enjoy the fact that many more same sex couples seem to choose to double-barrel (and thereby to equalise) their names but I also take delight in that  brief and subversively glorious period of LGBTQ legal history during which same sex couples held briefly the exclusive right to choose civil partnership or marriage. This meant it was opposite sex couples who had to fight on a feminist and human rights platform for equality with our right to choose a more modern alternative.

It was as a lesbian feminist that I therefore welcomed the idea of this brand new 21st century legal status of a civil partnership, as a uniquely queer creature of statute, envied and fought for by those who rejected opposite sex marriage.  As a divorce lawyer too I welcomed the fact that if the dissolution of a civil partnership rested on the fact of sexual infidelity, there was no option to cite this as " adultery" , given the biblical heterosexual definition. Despite the salacious debate this gave rise to in parliament, I  was optimistic  for  Civil Partnership,  and welcomed the fact that queer couples could not only  blaze a new legal trail,  but in doing so we could also  highlight the lack of any meaningful protective rights on separation for unmarried couples generally in this jurisdiction.

When I do talks these days each February for history month, I also love the fact that civil partnership law carries its own unique LGBTQ+ legal history, largely free of  the patriarchal baggage and connotations of marriage. Civil Partnership seems to me much better suited to a more diverse 21st century world of families and relationships. Denying LGBTQ people the right to be married was not of course for their own protection, but was supposed to protect "family values"  against "pretended" families, and thereby to preserve the twin institutions of straight marriage and cis heterosexuality. In this battle for family values, organised religion is never far away of course.

The Civil Partnership Bill needed the support of the Bishops in the House of Lords if it were to be passed. The Church of England 's position was adamantly opposed to any extension of the "sacrament" of marriage to same sex partners, which meant that the Bishops would only support the bill on condition that  t most definitely did not introduce same sex marriage. One of the leading opponents of the bill in the Lords was a Catholic Baroness who almost succeeded with wrecking amendments which would have extended the right to register a civil partnership to siblings. Ridiculously!

Once society (and the queer communities) had normalised the idea of same sex "weddings", the way was paved a decade later for marriage "equality" as a much simpler extension of human rights, with barely any opposition. Many of us in the LGBT+ community were then bemused by the indignation which fuelled and crowd-funded the strategic litigation which eventually led to the extension of civil partnerships to opposite sex couples. The focus was quite rightly on the dodgy history of matrimony given the legal  horrors married women had faced under both common law and ecclesiastical law.

Same sex partners exclusively and unfairly enjoyed the right to choose between  marriage , with all its patriarchal baggage, or civil partnership. We chose civil partnership but I was convinced that no opposite sex couple would choose civil partnership once they realised that for many of them it would carry inferior pension rights , which are limited to those of widowers, and which  is far less likely to be recognised abroadCivil partners and same sex married couples still have inferior pension survivor rights in many cases as compared with straight married couples. 

Jo: Back to my original question then it appears that same sex and straight marriage are not equal then.  There are still battles for queer folk to fight but perhaps alongside new allies in the shape of straight civil partner couples.  Talking of full equality, can opposite sex civil partners opt to convert their civil partnership into a marriage the way that same sex civil partners can convert their civil partnership to a same sex marriage? 

Bridget: No. This is only an option for same sex civil partners, for whom this became an option in December 2014. Stats  are only available to December 2016 but these show that about 13,000 civil partnerships were converted to marriage between the first possible date of 10 December 2014 and  31 December  2016, most of them in 2015 due to so many same sex couples preferring to be married but not previously having had this option when they registered their civil partnerships. Interestingly there is no option for opposite sex married couples to convert their marriage to a civil partnership. That would be a campaign I could definitely get behind as a feminist!

Opposite sex couples have been able to register civil partnership since 31 December 2019 and the only official stats so far available show that on that day there were 167 opposite-sex civil partnerships formed in England and Wales that day.  It will be a while before there are any stats for 2020 but these will be affected presumably by the pandemic's effect on weddings generally so it will be hard to get a true picture of the appetite for opposite sex civil partnerships. My own impression is of fairly low public interest in this. The government estimated something like 75,000 opposite sex civil partnerships per year, but I would be amazed if there were anything like this many.

Same sex civil partnerships were slightly on the rise in 2019 when there were 994 same-sex civil partnerships formed in England and Wales and the majority (61%) of same-sex civil partnerships in England and Wales in 2019 were between men.

Sadly female couples are more likely to dissolve their civil partnerships.  There were 916 same-sex civil partnerships dissolutions granted in England and Wales in 2019; of these, 54% were to female couples. Now I come to think of it I have dealt with more dissolutions for female couples than male. Is this borne out in your practice too Jo?

Jo: I'd say I have worked for slightly more men, in relation to CP dissolutions, but it would be too close to call it.  Of the women I have worked for my impression is that women don’t want to claim against each other's assets whereas men do or are at least more comfortable with that proposition.  Many older couples (of both sexes) are of the generation where there was no expectation of 'going to law' to resolve their differences.  That's now changed but I think we will have to wait for younger couples to come through to see if they are more willing to engage in legal processes to sort things out. I hope they are more likely to choose mediation, Collaborative or Arbitration; anything but court. 

I have also found that I do far more pre-nuptials for male clients - this might be because they often have more money to worry about but often there is an age gap so the older chap wants to secure his already accumulated substantial wealth.  But one mustn't talk in generalities. Anyway, t's always a good idea to consider a prenuptial!

My hope is that one day there will be no differentiation between marriage, same sex marriage or civil partnerships.  That the 'new marriage' can take place between anyone (with the usual safeguards for age and degrees of kinship relationship etc) and will be able to take place in the place of worship, venue or place of their choice. Sadly, I note the Law Commission’s consultation on weddings ‘Getting Married’ ignores entirely the needs of same sex couples – seeing it as political! Such an inequality of approach is galling to me. Seriously outrageous.

Let's do this blog again in 10 years to see what, if anything has changed!

Bridget: Make it 2 years in the hope of a faster pace of change and you’re on!