Same sex marriage and the law

20 Jun Same-sex marriage – why it matters

Posted at 00:00h in Family Law by

Why was the introduction of same-sex marriage important?

Prior to same-sex marriage and still in existence today, the government passed the Civil Partnership Act in 2004, giving same-sex couples the right to enter a legally recognised civil union, with the act being expanded to include heterosexual couples in 2019. But for many same-sex couples, although this represented a positive step forward, civil partnerships simply do not carry the same cultural or emotional significance as marriage. There are no necessary heart-felt vows, or spoken ‘I dos’, just the signing of a legal contract.

So, for many couples, same-sex marriage is a new and exciting advancement in English law. When the Marriage (Same-Sex Couples) Act came into effect in 2013, for the first time, it provided couples with the option to legally declare their love and commitment to one-another, and to call their partner ‘my Husband’, or ‘my wife’, just as heterosexual couples have been able to do for time immemorial.

What is the difference between marriage and a civil partnership?  

While it is true that, for the most part, the rights and responsibilities conferred onto civil partners are the same as those conferred onto spouses, there are still some important differences.

For example, if a couple were married and one spouse were to die, then the surviving spouse would be entitled to a share of their spouse’s pension which reflects the number of years that person had been paying into it. This sits in contrast to civil partners, for whom, if one partner were to die, the surviving partner would only be entitled to a share of their partner’s pension based on contributions made since 2004 for a private pension, or since 1988 for a state pension.

This difference in rights compared between civil partnerships and marriages highlights the importance of marriage as an option for same-sex couples, specifically for older couples against whom this difference particularly discriminates.

What is the position of same-sex spouses regarding parental responsibility?

Parental responsibility (PR) is ‘all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property’. The rules are different for couples depending on their sex but are generally as follows.

For same-sex male spouses, where a child is conceived through surrogacy, it is recommended that the couple seek the surrogate’s consent before making an application for a Parental Order. If the order were to be granted by the court, the surrogate mother would lose her PR for the child, and both male spouses would obtain PR for the child.

Alternatively, couples who are married or in a civil partnership can apply for an adoption order, which would bring an end to the birth parents’ legal connection to the child, transferring it to the adopted parents. There are numerous requirements for this, but the child’s welfare will be the Court’s primary consideration.

The rules for obtaining PR are simpler for lesbian married couples as where one spouse undergoes treatment for artificial insemination, and satisfies the conditions of the Human Fertilisation and Embryology Act 2008, both spouses will automatically gain PR.

What rights do same-sex spouses have in the event of divorce?

Same-sex couples have the same rights in a divorce as their heterosexual counterparts. Since no-fault divorces came into effect in 2022, thus ending the previous fault-based system, a spouse wishing to divorce will still have to wait for the required one year to pass but will then be able to apply for a divorce on the ground that the marriage has irretrievably broken down.

What rights do same-sex spouses have when one spouse dies?

As with in the event of divorce, same-sex spouses have the same rights when a spouse dies as heterosexual spouses do. Notability, with regards to inheritance tax, a spouse is considered an exempt beneficiary, meaning that they will not pay inheritance tax when assets are passed from the deceased to the surviving spouse. It is important to note, however, that this is not the case for same-sex co-habiting couples.

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