Tuesday, 23 April 2013

Redefining marriage: Can I marry myself?


"Do you take yourself to be your lawful wedded...er self?"
Word count: 981
Time to read: 3 minutes
Er…no.

As a family solicitor you do, on occasion, get asked some pretty strange questions.  This one came from a friend on a night out after she had recounted, with some frustration, details of a recent date which had not gone as well as she had hoped. From that lighthearted outburst followed a semi-serious debate about the definition of marriage, which has been given some very serious attention in recent months due to the Marriage (Same-Sex Couples) Bill which is currently being considered by parliament.  The topic has also been given some serious consideration in other jurisdictions around the world with both New Zealand and now France voting to legalise same-sex marriage within the last week.

The current position in England and Wales is that only a man and a woman can enter into a marriage and only same-sex couples can enter into civil partnerships.  The current government is looking to change this and allow same-sex couples to marry. This involves significant amendments to no less than nine different pieces of primary legislation including the:

Marriage Act 1949;
Matrimonial Causes Act 1973
Domicile and Matrimonial Proceedings Act 1973;
Civil Partnership Act 2004; and
Gender Recognition Act 2004.

Some of the amendments which might come to the attention of practitioners are:
  • The creation of a ‘jurisdiction of last resort’ (DMPA 1973) for those same-sex couples who marry in England & Wales but who remain habitually resident overseas where their marriage is not recognised and therefore divorce is not available to them.
  •  A provision which allows individuals already in a marriage to change their gender without the need to formally end the marriage first (GRA 2004).  The same applies for civil partnerships where both parties wish to change their gender simultaneously (it is not possible to have a civil partnership between a man and a woman).
  •  When considering the facts to support the irretrievable breakdown of the marriage, adultery can only be used if the respondent had sexual relations with someone of the opposite sex (MCA 1973). This would effectively preclude married gay couples from being able to rely on this fact when seeking a divorce.

One of the points raised by those who oppose the amendments is that same-sex marriage violates one of the fundamental purposes of marriage, that of procreation. Whilst there is no legal requirement for a couple to have either the desire or ability to have children in order to marry, the concept of a husband and wife creating a stable and balanced environment through marriage to raise their children has long been established in both religion and society and the traditional legal definition of marriage has to be viewed in that context.  But let’s take children out of the equation. If procreation is truly no longer a tenet of marriage then how important is it that the couple wishing to marry have the biological potential to create new life without the need to resort to science or surrogates?  If the answer to that is ‘not much’ then arguably the primary reason for marriage becomes the commitment to each other and all that entails. 

So what if you did want to make that commitment to yourself? Why not? There are some obvious perks.  You would not have to share the wedding gifts with anyone, although writing all the thank you cards on your own could be rather tedious.  And if you decided to go your separate way then any arguments over the division of matrimonial assets are unlikely to be acrimonious.  Then again, would you be committing adultery if you slept with someone else?  A potentially significant question if you were looking to justify divorcing yourself.  Although, you might also have trouble convincing a judge that you have not cohabited with yourself for a period of six months leading up to the petition, depending of course on when you discovered your adultery.  As you can see the idea quickly lends itself to absurdity.

Returning to the proposed Bill, if the purpose of the amendments is to grant people the freedom to marry whomever they choose then why not take that concept further and allow marriage between more than two people (another objection raised by opponents to same-sex marriage)?  Last year, a court in Brazil controversially approved a marriage between three people. This was not a traditional polygamous marriage where a husband had more than one wife but an equal union between three people equally committed to building a life with one another.  Were we ever to go down that route then the necessary amendments to primary legislation are likely to be much more extensive than the current ones and the family law profession would need to adapt significantly, particularly for when such relationships break down.  After all, it is difficult enough to resolve matters of matrimonial assets, contributions, pension entitlements and spousal maintenance etc. when there are only two people involved let alone three or more!

Joking aside, the debate surrounding the redefinition of marriage is a serious one and is unlikely to go away no matter what trajectory the Marriage (Same-Sex Couples) Bill takes and is one practitioners should be aware of. In recent decades the changes in society, science and the law have been profound. Consider the staggering developments in IVF treatment over the last 50 years (and the consequent rise in alternative families), not to mention the establishment of civil partnerships in 2004 and the more recent rise in popularity of pre-nuptial agreements since the Supreme Court’s decision in Radmacher in 2010.  It would be foolish not to expect family law to continue to evolve as society progresses and we cannot ignore potential amendments to legislation or the impact that such changes will have.

Who knows what we will be debating in 2023! That said, I don’t think I will be advising my friend to give up on the dating scene just yet.

Thanks for reading.