15th Jun 2016

Is there true equality for lesbians and gay men?

By David Allison

Can we celebrate true equality for lesbians and gay men?

The Civil Partnership Act 2004 was implemented on 5 December 2005, meaning the first civil partnerships were possible on 21 December that year.

The formation of same-sex marriages in England and Wales was introduced on 29 March 2014 following the implementation of the Marriage (Same Sex Couples) Act 2013 on 14 March 2014, which enabled couples to give their required 14-day notice of intention to marry. Same-sex marriages were first legally recognised in England and Wales a fortnight earlier, at precisely 12.01am, when the Act came into force, thereby automatically recognising the marriages of those couples who had previously married overseas.

Seismic shift:

Most would agree that we now enjoy full equality for lesbians and gay men. However, this has not always been the case, and the last 50 years has seen a seismic shift in the treatment of same-sex couples. So, how have we gone from penalisation to celebration within half a century?

The year of change was 1967. Despite the reputation of the decade, it was in fact the latter part of the ‘swinging ‘60s’ which saw the legal liberalisation of sex through the Sexual Offences Act 1967 (‘the Act’) and the Abortion Act 1967, and also the extension of the prescription of the pill to single women (though introduced in 1961, the pill was previously prescribed only to married women).

The changes may have legalised gay sex, but that fell far short of legitimising and normalising gay relationships. Even after the implementation of the 1967 Act, criminal law still impacted on the lives of many same-sex couples. Section 1 of the Act said: ‘A homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years’.

The age of consent for heterosexuals was 16 and so the legislation, of course, was itself discriminatory. Section 2 of the Act said:

An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done: (a) when more than two persons take part or are present; or (b) in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise.’

This meant that homosexual acts continued to be prosecuted when equivalent heterosexual acts were not. It was only three and a half decades later, when the Sexual Offences Act 2003 was implemented, that the age of consent was finally equalised (having been reduced from 21 to 18 under the Criminal Justice and Public Order Act 1994) and all sex-specific offences were eventually swept away.

Another historical year was 2003, when the Local Government Act 2003 was implemented. This repealed section 28 of the Local Government Act 1988, which prohibited local authorities from ‘promoting’ homosexuality and prevented them from spending money on educational materials and projects perceived to promote a gay lifestyle. It also labelled gay family relationships as ‘pretend’.

However, it was only when the Equality Act 2010 was implemented that all forms of discrimination against lesbians and gay men were prohibited (except in relation to marriage). And, in December 2014, the most recent development was the introduction of the provisions allowing for a conversion of a civil partnership into a marriage (a free service until December 2015).

The 2014 Act only applies to England and Wales and, while the Scots have introduced same-sex marriage under the Marriage and Civil Partnership (Scotland) Act 2014, civil partnership remains the only option in Northern Ireland.

Foreign law:

Of course, these days no lawyer can concern him or herself with only domestic law and, with an increasingly international population, family lawyers often have to consider foreign law. The situation is complicated where a client is part of a same-sex couple, not least because of the very significant differences that exist between jurisdictions even within Europe.

It also raises the question of how different foreign relationships should be treated. This was dealt with extensively in the Civil Partnership Act 2004 (CPA). Section 215 says: ‘Two people are to be treated as having formed a civil partnership as a result of having registered an overseas relationship if, under the relevant law, they (a) had capacity to enter into the relationship, and (b) met all the requirements to ensure formal validity of the relationship.

Capacity is determined according to the ‘relevant law’, which is defined by section 212(2) as the law of the country or territory where the relationship is registered.

Section 212 defines ‘overseas relationship’ as a relationship which is either a specified relationship or which meets the ‘general conditions’.

The specified relationships are set out in schedule 20, which is updated by statutory instrument, and currently includes a number of overseas same-sex marriages. However, the Marriage (Same Sex Couples) Act 2013 amends the CPA so that overseas same-sex marriages are no longer recognised as civil partnerships.

Section 214 sets out the general conditions, which are that, under the relevant law, the relationship may not be entered into if either of the parties is already party to a relationship of that kind or is married. The relationship must also be of an indeterminate duration and the effect of entering into it is that the couple is treated as a couple either generally or for specified purposes or as if married.

The Marriage (Same Sex Couples) Act 2013 only deals with the recognition of same-sex marriages that take place overseas under section 10. This section provides that an overseas marriage is not prevented from being recognised only because it is the marriage of a same-sex couple. However, that is not to say that it will be recognised.

The Act does not otherwise address requirements for recognition. Therefore, whether an overseas same-sex marriage will be recognised will depend on the usual rules of private international law. These require that:

  • The marriage has been properly performed under the laws applicable in the country of celebration; and
  • Each of the parties to the marriage has capacity to marry under their ‘personal’ law. Under English law, this is the domicile of the parties immediately before the marriage. This rule is modified for marriages which take place in England and Wales to the extent that only one spouse need have capacity in accordance with the law of their domicile.

So, if we allow, say, two men from and with domicile in Italy to marry in England, then arguably the English court should refuse to recognise that marriage. The same applies to an English woman who marries her German girlfriend in Brussels. As the marriage took place outside of England and Wales, both parties must have capacity under their personal law. As Germany does not allow same-sex marriage, the German partner does not have capacity and the marriage should not be recognised under English law.

The minefields are aplenty. Recognition is one – for example, an English civil partnership will be recognised in Canada as a marriage, yet in Spain, it’s unlikely to be recognised at all, despite both countries having full same-sex marriage.

Conversion is another: a gay couple from England who formed a civil partnership in Cardiff can convert it to a marriage, yet the same couple will be prohibited from conversion if their civil partnership was registered in Belfast. The law remains chaotic.

Social attitudes:

International recognition and regulation of same-sex marriages and relationships is more of a muddle, which is not surprising given varied social attitudes towards the issues throughout the world. After all, marriage as a concept has existed for millennia, yet gay marriage has been around for only 14 years, when the Netherlands made same-sex marriage legal in 2001. Seventeen countries now allow same-sex marriage, which is about 10 per cent of the world in terms of numbers of recognised states.

How can you expect consistency and clarity in the law internationally when such an institution is still in its infancy? The simplest answer is: you can’t.

Family law work for same-sex couples is now mainstream and there can be few family lawyers who have not advised in a same-sex case. Arguably, the law in England and Wales now gives full equality to lesbians and gay men and it would seem that the public is considerably more enlightened than only a few years ago.

However, it is still not easy for many people to be openly gay. In 2014 the charity Metro undertook a survey of 7,000 young lesbian, gay, bisexual, and transgender (LGBT) people aged between 16 and 25. The results were alarming. The survey found that 42 per cent of young LGBT people have sought medical help for anxiety or depression; 52 per cent of young LGBT people reported self-harming either now or in the past; and 44 per cent of young LGBT people have considered suicide.

NHS figures are not quite so alarming, but do show a much higher rate of attempted suicides among young gay people compared to their straight counterparts. The law may be leading the way, but we still have some way to go in terms of public attitudes.

Many clients grew up long before there was equality in the law; some while the act of same-sex love was a criminal offence. Many of these men and women are only now starting to ‘come out’ and they can face a whole host of issues, particularly if they have married someone of the opposite sex and have a family.

Even for those clients whose sexuality is immaterial to their lives and is accepted by their family and peers, dealing with the breakdown of a relationship is deeply personal, and all clients, whatever their sexuality, want a lawyer who is sympathetic to their situation. Many lesbians and gay men seek out family lawyers who are either gay or have a reputation for being gay-friendly.

The law doesn’t always help. For example, an advice meeting on a pre-nuptial agreement can often be relatively short as you can usually presume that your client knows what a marriage is and that it is recognised. However, a similar meeting with a gay client most commonly entails discussing the civil partnership versus marriage options and, given our increasingly international community, then must grapple with where a relationship will be recognised, and as what, and determine the impact of this.

Put simply, gay marriage is much more complex than ‘marriage for gay people’. Specialist advice is crucial. Gay Family Lawyers is a group that can help. It is made up of specialist lawyers, mediators, and therapists who have decades of experience, put relationships first, and deal with separation sensibly.

This article was written by Family Law in Partnership director David Allison and James Carroll of Russell Cooke. David Allison is renowned for his expertise in the family law issues concerning cohabitants and same sex couples. Contact David at T: 020 7420 5000 E:dna@flip.co.uk.

This article first appeared in Solicitors Journal 5 May 2015 and is reproduced by kind permission.