Vardags Family Law Essay competition 2023/24 | Emma Lau

Emma Lau - Durham University

Should marriage be abolished in favour of civil partnerships?

Introduction

In English law, there are two formalised relationship statuses: marriage and civil partnership. In practice, they are of very similar nature, as Lady Hale put it, ‘civil partnership is not called marriage but in almost every other aspect it is indistinguishable from the status of marriage’.

Being acutely aware of the difficulty of complete abolition, this essay seeks to establish that marriage should be phased out. This essay will take a tripartite approach: Firstly, this essay will respond to the argument that ‘marriage is functionally irreplaceable’ by exploring the overlapping areas between marriage and civil partnership. Secondly, three main issues with marriage in modern society will be discussed in comparison with civil partnership. Lastly, this essay will propose a new statutory framework – relabelling marriage into universal civil partnership.

Status quo and its overlapping purposes

At the heart of the debate on abolishing / phasing out marriage lies the core question of whether marriage can be functionally substituted with another institution. It is recognised that the religious element of marriage cannot be overlooked, thus this aspect will be explored later in the essay (under Reform Proposal). The main focus in this section is therefore whether civil partnerships, in terms of their legal form, can substitute marriage.

This essay takes the view that marriage can indeed be substituted: Even prior to the Marriage (Same Sex Couples) Act 2013, civil partnerships were ‘the benefits of marriage in all but name’. Now that both same-sex and mixed-sex couples can opt for marriage or civil partnership following the Marriage (Same Sex Couples) Act 2013 and Civil Partnership (Opposite Sex Couples) Regulations 2019, it becomes even more curious whether there is still a need to retain both functionally identical institutions. Their coexistence evidently serves overlapping purposes as they are equally effective in demonstrating commitment with preliminaries, ceremony, and registration as the formality requirements; and in terms of legal entitlement, marriage and civil partnership confer the same rights and responsibilities on couples. For instance, civil partners’ welfare benefits are ‘treated in the same way as married people’, and they have equal protection from domestic violence, life insurance, criminal injuries compensation etc. Having established that neither marriage nor civil partnership is irreplaceable in their legal structures, this sets out the groundwork for further discussion on whether marriage could effectively be phased out.

Unequal treatment for same-sex couples

There are three main reasons why marriage should be phased out in favour of civil partnership, with the first reason being marriage’s perpetuation of unequal treatment for same-sex couples. The reform in the Marriage (Same Sex Couples) Act 2013 is undeniably an important step towards inclusivity. Yet, this does not mean ‘equal marriage’ has been achieved because the routes to marriage are not the same for same-sex and mixed-sex couples. Since the Marriage Act 1836, mixed-sex couples could choose between a religious marriage (performed by the Church of England, Jews and Quakers) and a civil marriage (performed by the registrar). The legalisation of marriage in England is encapsulated by Edge as ‘a coproduction between the state and religious organisations and communities’. Yet, this religious route is much more limited for same-sex couples, according to s.2 Marriage (Same Sex Couples) Act 2013:

‘Marriage according to religious rites: no compulsion to solemnize… A person may not be compelled by any means to conduct, be present at, carry out, or otherwise participate in, or to consent to a relevant marriage…where the reason for the person not doing that thing is that the relevant marriage concerns a same sex couple.’

What becomes apparent is that while civil marriage is now open to both mixed-sex and same- sex couples, Anglican marriages are explicitly limited to mixed-sex couples, and other religious marriages can, but need not, be made available to same-sex couples. Although this principle of non-compulsion highlights a fundamental value of respect for religious freedom, the inherent differences in the legalisation of marriage is nonetheless perceived as a form of discrimination against sexual minorities which creates a sense of marginalisation in society, therefore should have no place in the modern world. Civil partnerships, on the other hand, are ‘formed when [two people] register as civil partnership of each other.’ The fact that same- sex and mixed-sex couples, irrespective of religious beliefs, go through the exact same route to form a legally recognised relationship eliminates the notion that same-sex couples are considered ‘second class’ and may be denied a religious marriage – an option readily available to mixed-sex couples. Hence, civil partnerships should replace marriage as the new ‘norm’ to truly reflect societal acceptance towards diverse forms of relationship.

Failure to reflect contemporary relationships

Another criticism is that marriage is an outmoded institution built on patriarchal inequality, which should have no place in modern society. As Hayward rightly noted, some believe that ‘marriage remains a patriarchal institution that exemplifies the structural subordination of women’. The view that marriage as an institution is a perpetuation of undesirable historical associations is best exemplified in the case Steinfeld, where the appellants, a different sex couple who wish to enter into a legally recognised relationship, ‘have a conscientious objection to marriage’. After this landmark victory which extended civil partnerships to mixed-sex couples, Steinfeld and Keidan explained that the case was ‘rooted in [their] desire to formalise their relationship in a more modern way, focused on equality and mutual respect.’ While it is true that legal oppression against married women is no longer the case in the modern society, as Lady Hale pointed out in Re P (Adoption: Unmarried Couple) [2008]: ‘These are not the olden days when the husband and wife were one person in law and that person was the husband’, many still ideologically oppose the historical connotations associated with the label of ‘wife’ and the idea that women are ‘given away’ by the dad to another man. A report in 2020 shows that 7,566 opposite-sex civil partnerships have been reported in England and Wales; and from the research conducted by Hayward et al, many participants contended that ‘while marriage was bound up with a burdensome weight, civil partnerships were a clean slate, free from such baggage.’ What follows is that while respect for women has greatly enhanced, the desire for a more modern approach centred on egalitarianism and mutual respect is nonetheless a major reason why civil partnerships are preferred by many.

This essay wishes to take the argument further to suggest that the forming of civil partnerships should not merely be a matter of personal choice, but rather, the exclusive institution signifying the union of two people. Sheila Cronan, a feminist activist, argued that ‘freedom for women cannot be won without the abolition of marriage’ because ‘marriage is the model for all other forms of discrimination against women’. Although it is acknowledged that some of her arguments may not necessarily reflect the contemporary reality, for instance, ‘wives are “owned” by their husbands in the same sense that slaves are owned by their masters’ is surely no longer the case, this essay contends that it would be impossible to achieve true gender equality as long as marriage remained a dominant institution. What is undeniable is that marriage as an institution contributes to the maintaining of traditional gender roles as it reinforces the idea that women exist to serve men, even if the majority of society no longer endorse these beliefs. Therefore, this essay argues that replacing the term ‘marriage’ and its associated labels of ‘husband’ and ‘wife’ with the neutral terms ‘civil partner’ or simply ‘partner’, is in itself a much greater step towards eradicating gender- based distinctions, and this action serves to signify the government’s commitment towards achieving true gender equality.

Hindrance to religious freedom

Thirdly, marriage as an institution is seen as a hindrance to religious freedom. Currently, there are only three routes for religious communities to solemnise marriages according to the Marriage Act 1949: Society of Friends, Jews, and the Church of England. The consequence of non-compliance with the Act is the finding of a ‘non-qualifying ceremony’, rendering parties unable to seek financial orders. As a religiously plural state, this raises concerns regarding religious freedom, as supported by Edge:

‘With a coproduction model, there is a distinction between religious communities whose values are sufficiently aligned to allow coproduction, and those who are not. The potential for entanglement between religion and the state is high.’

This is further supported by Probert, as he identified that non-Christian ceremonies had a much greater likelihood of being rendered non-qualifying ceremonies. For instance, in Chief Adjudication Officer v Bath [2000], the court held that ‘a marriage ceremony administered by a Sikh priest in accordance with Sikh custom and religion’ did not constitute a valid ceremony. While the law’s insistent on formalities serves to regulate the institution of marriage and ensure legal recognition, this arguably hinders the principle of religious freedom as some religions do not enjoy the same legally status.

Yet, replacing marriage with civil partnership which does not consist of any religious element would appear equally, if not more, problematic – what about couples who wish to have their relationship solemnised by saying a prescribed from of words, and to have a ceremony celebrated by a Church of England priest? Therefore, the religious element of marriage will be discussed in the framework proposed in this essay, where universal civil partnership is to replace marriage, followed by the optional religious weddings that have purely religious consequences.

Reform Proposal

Having established the deficiencies in the current statutory framework, this essay seeks to adopt the framework proposed by Edge – universal civil partnership with religious weddings having purely religious consequences for all religious communities. In other words, the legalisation of the union of a couple will be based on the reformed Civil Partnership Act 2004, where ‘no religious service is to be used while the civil partnership registrar is officiating at the signing of a civil partnership document’; while religious ceremonies following the registration would be optional and immaterial to the legal creation of a civil partnership. To aid the explanation of this framework, Edge made reference to the Australian Marriage Act 1961:

‘Nothing shall be taken to prevent two persons who are already legally married to each other from going through a religious ceremony of marriage’.

With this new framework, better weight can be given to both equality and religious freedom. Having religious ceremonies as an exclusively religious concept is favourable in two ways: firstly, without any legal implications, different religious communities can freely shape their ceremonies. Secondly, religious organisations will continue to have space to set their values against equality norms as they are protected from any compulsion to provide for same-sex couples. In terms of equality, not only will mixed-sex and same-sex couples go through the same secularised legalisation process, but an egalitarian expression of relationships can also be achieved as the civil partnerships possess no social script. The latter is further explored by Fenwich and Hayward, where it is recognised that it ‘goes beyond what could be offered by a civil partnership to expect that gendered roles, [such as] a woman staying at home to care for children which forces her into economic dependence on her partner… would necessarily be discarded merely by entering that status’. Nonetheless, this could aid in signalling to those around that ‘the expectations of economic inequality between husband and wife associated with wifehood would not apply’.

However, it should be noted that the abolition of marriage in the UK will most certainly come with practical problems. For instance, since the concept of marriage is deeply ingrained in social norms, how will society react to this sudden change? Similar considerations have been made during the introduction of same-sex marriage in 2014, as Hayfeld et al argued that ‘civil partnerships were arguably only retained to avoid same-sex couples being forced to change status, for example, to annul their civil partnership and enter a marriage.’ Therefore, this essay proposes a phase-out approach to marriage, whereby previously registered marriages will remain valid, while no new marriage shall be registered henceforth.

Conclusion

To conclude, this essay first argued that the existence of two functionally identical institutions is not necessary, which forms the basis for further discussion on whether marriage can be practically replaced. This essay then moves on to discuss three major reasons why marriage exists as a hindrance to social development. Ultimately, this essay seeks to establish that universal civil partnership should replace marriage, while also taking into account the religious aspect of marriage in the proposal. Overall, this essay takes the view that marriage should be replaced by universal civil partnerships in the long run, but this process should take the form of phasing out rather than abolition.