Same sex marriage and civil partnership: update

Further to our post Same sex marriage at British Consulates overseas, which reported that as from 3 June 2014 same-sex couples will be able to marry at British Consulates in 23 countries, under the Consular Marriage and Marriages under Foreign Law Order 2014, there has been further progress in the implementation of the Marriage (Same Sex Couples) Act 2013.

Approved premises

On 24 June, HM Passport Office published the Approved premises list, also available in Excel format, which summarizes the premises that have been approved for civil marriages and civil partnerships in England and Wales. It notes that venues are authorised on a regular basis; and because not all the current venues may be included it recommends contacting the appropriate local authority for the most up-to-date information about approved venues.

 Review of civil partnership in England and Wales

On 26 June, the Government Equalities Office and Department for Culture, Media & Sport published the report on its conclusions following the review of civil partnership in England and Wales as required under section 15 of the Marriage (Same Sex Couples) Act 2013. The Government concludes that “[g]iven the lack of consensus on the way forward for civil partnership, [it] will not be making any changes”. All the documentation relating to the consultation, including a summary of the responses, is available here.

Paragraph 1.4 of the initial consolation document stated that:

“The Government’s decision not to make changes to civil partnership in the Act was because civil partnership currently plays an important role in the lives of many couples. Civil partnership was created to give same sex couples access to equivalent legal rights to marriage at a time when they did not have access to marriage itself. The Government saw little benefit at that stage in changing a well-understood legal institution without evidence of a clear need to do so and of the impact such a step would have”.

Given the Government’s initial stance, its conclusion is hardly a surprise.

As to extending civil partnership to opposite-sex couples, the analysis reveals that this was opposed by respondents by about three to one: 21.8 per cent in favour and 76.2 per cent against. But that might not be the end of the story. Ferguson & Ors v United Kingdom (Application No. 8254/11), in which the applicants argue that the UK’s failure to provide civil partnerships for opposite-sex couples breaches their Convention rights, is currently awaiting a decision at Strasbourg as to whether or not it is admissible.

Marriages by non-religious belief organisations

On 26 June, the Ministry of Justice announced a consultation on Marriages by non-religious belief organisations on whether the law should be changed to permit marriages by non-religious belief organisations.  The consultation document explains [page 13]:

“During the passage of the 2013 Act a number of opposition amendments were tabled to allow the British Humanist Association, and potentially any other non-religious belief organisation, to solemnize marriages. The Government had not consulted on belief marriages as part of its consultation on marriage of same sex couples and felt that a public consultation should take place before a decision was reached on further amending marriage law in this respect”.

As a consequence, section 14 was introduced into the 2013 Act: it requires the Secretary of State to arrange for a review and full public consultation of whether an order should be made permitting marriages according to the usages of belief organisations to be solemnized on the authority of certificates of a superintendent registrar and, if so, what provision should be included in the order. The outcome of the review had to be produced and published before 1 January 2015.

The consultation, which closes on 18 September, asks for views on:

  • whether there is a substantial case for changing the law in England and Wales to establish non-religious belief ceremonies as a third type of legal marriage ceremony alongside religious and civil ceremonies;
  • which non-religious belief organisations could meet the Section 14 definition [“an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality or ethics”] in order to be registered to conduct belief ceremonies, whether the definition is appropriate and what the issues would be related to such changes;
  • where, if allowed, such marriages should take place;
  • which safeguards would be needed to deal with any resulting risks, and
  • what would the equality would impacts.

As to the issue of location, the paper invites views on three options for change:

  • Option 1: permit non-religious belief organisations to solemnize marriages within their own buildings or buildings where the organisation meets to manifest its beliefs and that are certified for that purpose.
  • Option 2: permit non-religious belief organisations to solemnize marriages anywhere (other than religious premises) meaningful to the couple, including outdoors.
  • Option 3: permit non-religious belief organisations to solemnize marriages at “approved premises” (other than religious premises), such as a stately home or a hotel.

The document notes that

“In Scotland, the law has been changed in recent years to allow for humanist and other non-religious belief marriages within a system in which individual celebrants are registered to solemnize marriages. We have a different system, with different safeguards, predominantly based on the registration of buildings”.

And so we do: but we can’t help wondering whether the Scottish version might not be simpler to administer and generally less cumbersome than the English one. In recent years the authorities in England and Wales have tied themselves into knots over registration of buildings and one of the reasons for that has been the comparative inflexibility of registration under the Places of Worship Registration Act 1855: see R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77. Because the Scots simply license individuals rather than buildings, their system is much more flexible.

David Pocklington & Frank Cranmer 

Leave a Reply

Your email address will not be published.