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Vardags Family Law Essay competition 2023/24 | Poppy Evans

 

Poppy Evans - Durham University


If the saga of civil partnership reform has taught us anything, its that marriage should be abolished. Discuss.

Introduction

Over the past twenty years, there has been much disagreement among scholars surrounding civil partnership and the institution of marriage. Many have criticised the introduction of the CPA 2004 and the MSSCA 2013, arguing that they have caused confusion and complication in terms of formalising relationships. Others have argued that marriage itself should be criticised to decide whether it is an institution which is still fit for purpose. It is the aim of this essay to understand developments in family law, analysing them in order to ascertain whether further reform is required, including the potential abolition of marriage.

Initially, this essay will look at the saga of civil partnership. This will be used to demonstrate the complication caused by law reform, but also the social implications of those reforms. Then, a feminist perspective of marriage will be analysed to understand the calls for abolition, as well as the views in support of retaining marriage as an institution. It is the conclusion of this essay that, given the varying views on the topic, as well as the social impact and the history of the institutions, it is important to retain choice, therefore marriage and civil partnership should both remain.

The saga of civil partnership

Upon the enactment of the CPA 2004, Parliament made clear that it was not prepared to fully extend marriage to same sex couples. This being said, the government still saw a need to legally recognise same sex relationships in order to allow same sex couples to access the same rights available to opposite sex couples through marriage. Despite being a significant step towards raising same sex relationships to the same level as opposite sex relationships in the eyes of the law, many considered civil partnership to be a consolation prize rather than marriage equality.  This was emphasised in Steinfeld, which said that having two separate institutions perpetuated discrimination and misconceptions. As a result, it became increasingly clear that the CPA 2004 was an insufficient measure in formalising same sex relationships.  It was argued that formal equality for same sex couples would continue to be deficient if they were unable to avail themselves of the legal benefits attendant to marriage. Therefore, following ten years of civil partnership, major marriage reform was marked by the MSSCA 2013, which finally legalised same sex marriage. The impact of this cannot be understated as it represented a turning point towards acceptance and equality. Despite this fundamental move towards marriage equality, inconsistency persisted. Under section 3(1) of the CPA 2004, a couple was not eligible to register as civil partners if they were not of the same sex. The legislation was therefore explicitly and emphatically designed for same sex couples only, meaning same sex couples now had two options for formalisation, whereas opposite sex couples only had one. In order to create symmetry, it was imperative that civil partnership was extended to opposite sex couples. This was achieved following the Supreme Court judgement in Steinfeld, in which the notion that same sex couples could civil partner, but opposite sex couples were denied this right was found to be incompatible with articles 8 and 14 of the ECHR 1953. This then put pressure on the government to create symmetry within civil partnership, resulting in the institution being extended to same sex couples. This seemingly perfected the symmetry of registered relationships.

 An overcomplicated system?

When the CPA 2004 was introduced, the Labour government in power at the time emphasised its distinctiveness, asserting it as a separate and unique institution, detached from the conventional trappings of marriage. In practice, however, civil partnership entitles couples to nearly identical rights to marriage, rendering it a union akin to marriage in all but name. This apparent redundancy prompts discussion about the purpose of having two near- identical institutions. However, to take this position would be to ignore the social implications of both marriage and civil partnerships. The denial of marriage rights to same sex couples once symbolized a refusal to recognize these unions as equal to their opposite sex counterparts. The introduction of same sex marriage, therefore, carried immense symbolic weight, signifying a transformative shift in societal attitudes. It explicitly communicated that relationships, regardless of the genders involved, were to be regarded on an equal footing.

For this reason, reducing the two institutions to their legal symmetry would be to ignore the very real social impacts of same sex marriage as a catalyst for increased acceptance. In light of these considerations, this essay aims to delve into the social perspectives surrounding marriage and civil partnership. It argues that maintaining both institutions is crucial, as it ensures that individuals have access to an institution which aligns with their personal beliefs and values. By exploring the broader social implications, the essay endeavours to highlight the multifaceted nature of these unions, extending beyond legal symmetry.

The feminist perspective

The institution of marriage is historically rooted in patriarchal beliefs. For example, for many centuries marriage was primarily an economic arrangement and therefore has been rooted not in love, but in property and power, especially mens power over women. This could be an argument in favour of the abolition of marriage as many couples now fundamentally reject these ideas. The institution of marriage has been historically used to disadvantage women, with wives owing their sexual and domestic services to their husbands and, in exchange, husbands would provide for them financially. Therefore, marriage cannot be said to be a neutral social institution. Given this legacy, feminist scholars have argued for the abolition of marriage in order to denounce this outdated view of relationships. This may be problematic, however, as abolishing marriage would mean leaving it to this legacy, rather than attempting to scrutinise and reform the institution. Dean Bartlett claims feminist contributions have helped to encourage developments in family law, painting marriage reform as a success story. Feminist activists have recast marriage as a partnership between equals rather than one of subordination. This has been demonstrated in Owens v Owens where the court endeavoured to distance marriage from its paternalistic origins by emphasising marriage as an equal partnership. This suggests that the institution of marriage is able to adapt. Additionally, reform has been seen in the institution of marriage through the introduction of no-fault divorce and through the recognition of domestic contributions when deciding the division of assets. This essay finds that although marriage is rooted in problematic values, the institution is changing. Marriage should therefore remain, so it can continue to be scrutinised under a feminist lens, enabling women to reclaim marriage as an equal partnership, rather than leaving it to its problematic legacy. As for feminists who do not wish to be associated with the historical connotations of marriage, civil partnership remains available, emphasising the importance of choice. Therefore, marriage should not be abolished.

LGBTQ+ Perspective

Some scholars have challenged the view of marriage as a changing institution, as suggested by Dean Bartlett. They argue that it is still not appropriate for same sex couples as its conception was designed with only heterosexual relationships in mind. In Hyde v Hyde, Lord Penzance described marriage as the union of one woman and one man to the exclusion of all others, explicitly confining the scope of marriage to only include opposite sex couples. Norrie in particular argues against the institution of marriage, emphasising that efforts to use marriage as a way to achieve equality for members of the LGBTQ+ community have been misplaced, and that same sex couples should avoid marriage at all costs. He argues this as equality through same sex marriage is granted on heterosexual terms. To submit to the institution of marriage would be to ignore the inherent differences between same sex and opposite sex relationships. One example of this is the way in which marriages have been formed to serve a social function. For example, the financial interdependency between different sex couples which Callahan spoke to where there is often disparity between the earnings of the husband and wife dont necessarily translate to same sex couples. Norrie claims that despite its roots in heteronormative conceptions of marriage, this is a key indicator used to show commitment within marriages. This doesnt translate to same sex relationships where it has been shown that there is less disparity in earnings and less financial interdependency. In turn, by heterosexual standards, this could be interpreted as a lack of commitment. As a result, scholars such as Norrie suggest that an ideal solution would be to break down the institution of marriage and instead provide rights and liabilities based on needs and fairness, rather than marital status. Although this seems like a fair solution to the problematic, heteronormative status of marriage, many scholars have argued that same sex marriage marked a key turning point in the fight for equality, therefore its legacy should continue as a symbol of potential change. This will be explored next.

It could be argued that perspectives such as those held by Norrie undermine the incredible achievement same sex marriage represents for many members of the LGBTQ+ community. For example, Hayward argues that by allowing same sex and opposite sex couples access to civil partnership and marriage, perfect symmetry has been achieved. This symmetry of access is of importance, owing to the historical struggle for same sex marriage. This is emphasised by Sweeneys emotional account of the fight for same sex marriage, as she explains the injustice and discrimination she felt prior to the enactment of the MSSCA 2013, knowing that marriage was not a possibility for her as a lesbian woman. Again, this demonstrates an ability for the reform, suggesting that although marriage may conform to heteronormative standards today, it is capable of changing in the future. This would again suggest that marriage should not be left to this legacy but should be moulded to fit modern beliefs. This essay finds that because some see same sex marriage as a continuation of discrimination, based on heteronormative standards, and some view it as a point of achievement and a milestone in formally recognising same sex relationships, maintaining the institution of marriage as well as civil partnership is key in ensuring freedom of choice and dignity for same sex couples who wish to formalise their relationships.

Conclusion

This essay finds that the decision to abolish marriage should not be taken lightly. The institution does not exist in a vacuum and its impact has historical, emotional and social influences. To say that marriage should be abolished would be to ignore the emotional strings that are attached to the institution. The same can be said for civil partnerships. The two institutions have a history which relates to achieving greater equality for the LGBTQ+ community. Additionally, feminist scrutiny of the institution of marriage has aided in adopting the view that women are equal to men within formalised relationships. Therefore, although the current system which provides two near identical legal institutions may be complicated, this must be balanced against the inherent need for choice in order to allow people to decide how they want to formalise their relationship in line with their personal beliefs. It is the finding of this essay that the later outweighs the former as the historical implications and importance of dignity within formalisation of relationships remains paramount.

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Bibliography

Legislation

Civil Partnership Act 2004

Marriage (Same Sex Couples) Act 2013 Cases

Hyde v Hyde (1866) LR 1 P&D 130

Owens v Owens [2017] EWCA Civ 182

R (on the application of Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32

Journal articles

N Sweeney, Why marriage? [2018] 7(3) Families, Relationships and Societies 534

H Fenwick and A Hayward, From Same-Sex Marriage to Equal Civil Partnerships: on a path towards perfecting equality? [2018] 30(2) Child and Family Law Quarterly 97-120

S Poulter, The Definition of Marriage in English Law (1979) 42 Modern Law Review 409 Baroness Hale, Unmarried couples in family law [2004] Family Law 419

M.A. Fineman, Why Marriage? (2001) 9 Virginia Journal of Social Policy and the Law 239-272

J Callahan, Same-Sex Marriage: Why it Matters- At Least For Now (2009) 24(1) Hypatia 70-80

K Norrie, Marriage is for Heterosexuals – May the Rest of Use be Saved from It (2000) 12 Child and Family Law Quarterly 363-369

R Probert, Hyde v Hyde: Defining or Defending Marriage? [2007] 19(3) Child and Family Law Quarterly 322

Books

G. Dunne, A Passion for Sameness? Sexuality and Gender Accountability, in E. Silva and

C. Smart (eds), The New Family? (Sage Publications, 1999) 66–82.

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