| 251uy 2013 LEGAL UPDATE All i al, this clause contrast the example ofa Marriages are equi heterosexual couple who lve net door to their perish church but never end any ..but some are more equal than others, say Services ashing the viare marty them, ‘witha same sex couple who are regular Janet Barlow & Rebecca Mason attenders at that church also asking for target the frat example the ven ‘inableo rete the request, the second hefsnablto agree. This ea serious ack a equality given tha ove ofthe 75,493 religous marriages performed in 2009 (Offic ef National Saris) 86,236 were Solernisedin he Church of England or the church in Wales ‘Quakers and Jews can opt in under 5, bat other religious organisations need to opt inners asthe bldings mest Bereyistered andthe relevant governing ofthe organisation mast consent tothe marfage taking place The Gefntion of relevant governing body israther vaguely defined in the A, a t isunclear whether it refers tothe leader of the congregation or the overall leadership tthe religous organisaron Religious | organtaons sharing abulling under formal sharing arrangement will all need place there. This raises the question of how isa same sex couple wanting to inary inthe bing supposed find out Ithetr they wll beable to marry here crn? ven ifthe relevant governing body has consented o same sex marriages, ‘However, this has never been regarded asa_| taking place, under s 2(2) “no person > Theroare foursifeantareasc marriage de 10 Canon law: The Submission | can be compelled to conduct, take part inex betneen thers ervey ofthe Clergy Act 1533, Canon B30, states in or consent to" same sex marriages. hheterosauals andthoseestowedby the ‘thatthe Church of England affirms, ‘According tothe explanatory notes, this, tring ae SCosren immed according 190ur Lords teaching that ean include any minister or authorised ee eee teeree ‘marriageisinitsnarure aunion permanent | person working forthe organisation, eee tec meee and lifelong, forberter for worse ll ‘the organist playing at the wedding and ‘equal insurvivor pension igs and Pasienp tec liiesh , death them do par, of one man with one ‘woman, "This was earned by ord > Avayionmdigtetoseparteied — Peusancintbevideanteadtowe | 66 Apart from the meragrtontgervetensofetal | agg ta 1 PRD 10, Tahal ef! merrtoge’ ‘tutigrandinocwhench occudhwen —_ Whilethe new Act purporsto give ioe Seal ‘same sex couples equality with that the Act does not ef heerosexwal couples, on closer a ttamination thie does not appeat tobe really give same sex necontovera Mariage (Sane | theese couples equivalent Sexcmple) At recede ’ ‘assent last week. This Acts Religious ceremonies rights to those devon resting ceo Themostobvinsarnotineaaiyishe | of opposite sex legiaioniichaimtopurconesex | lnckot alablityofesme sex mariage _ carlstonalerifoatngwtdihact | IndechuchotEiglandancinechurn | COUPLES In Wales under s2of the new Act. The reason for this prohibition s because ‘ofthe common lawaduty onthe Church | even the lower arranger, whether in @ ‘of England to marry apatishioner, who | voluntary or an employed capacity. These ‘wishes it, in theirown parish ora parish people will not be liable for discrimination ceremony. The Civil Partnership Act ‘with which they have close connections under the Equality Act 2010. Therefore, 2004 (CPA 2004) had already given same | and the fact thatthe clergy are also ‘even ifthe same sex couple find an Ssexcouples the ability to makea legally | registrars under the Marriage Act 1949, attractive place of worship to have the recognised commitment toone another. | Ironically, the explanatory notes for ‘ceremony, ora place that they have heterosexual coupes in relation othe Institution ofmarriage” The Act will enable same sex couplesto marty ether in, cv ceremony or ifin agreement the religious organisation, ina religiousLEGAL UPDATE ‘worshipped infor many years, they might Find themselves suffering the indignity ‘of scooting round trying to find @ willing authorised person to conduct the marriage ‘or play the music or arrange the flowers, Allwithout any logal redress. This protection does not apply to registrars, s 24). Of course itis entirely another matter whether this protection ‘ill hod up in the fae ofa challenge tothe European Court of Human Rights ‘under Art 12 (the right to marry) of the European Convention on Human Rights According tothe Human Rights Joint ‘Committe, the government is confident that twill, as. are the Equality and Human Rights Commission, bt Christopher ‘MeCrudden, Professor of Human Rights and Equality Law, Queen’s University, Belfast, is doubtful, Lilian Ladele, the Islington registrar who was dismissed for fefusing to conduct civil partnerships may have her own views Ladele and MeFarlane ¥ the United Kingdom (2011] ECHR 737), ‘Termination of the marriage Same sex couples who enter intoa civil partnership have almost identical legal rights as those who enter into a maerlage. However, they cannot use adultery asa fact for dissolution of thelr partnership and nor ean they void their ‘partnership due to non-consummation, CConsimmation is seen as an important factor fora binding legal contract for heterosexual couples However, the sexual side ofa same sex couple’ relationship has always ‘been an area thar the government has ‘ignored and this wll stil remain the status quo under the new Act. The Act will allow adultery as fact for divorce ‘undera new s 1.6) of the Matrimonial ‘Causes Act 1973, but only ifone party of ‘the same sex marriage commits adultery with someone of the opposite sex, not ‘with someone of the same sex. The ‘grounds for voidable marriage under the ‘Act will remain the same as under CPA 2004, Therefore, non-consummation ‘will nt be availabe to same sex couples. Aslord Carey a former Archbishop ‘of Canterbury) states: “The failure ro flees the iste of consummation and adultery does nothing to promote the ideal that marriage ts both equal and shouldbe a lfelong union.” Same sex married couples who find themselves in unconsummated relationships, will have no redress other than ending the marriage by divorce. Surely itcannot be beyond the ability of Parliamentary dratsmen to craft a legal definition of same sex intercourse? Pension rights Under the new Act, same sex couples will, rot be granted the same pension rights as heterosexual married couples. Schedule 9, para 18(1) of the Equality Act 2010 allows pension providers to exclude civil partners from spousal benefis attributable to service before § December 2005, Despite nich citiesm ofthis under CPA 2008, ‘his will continue co apply to same sex ‘married couples under the new Act, Although currently many occupational pension schemes do pay out benefits fcerued before 2008 to surviving civil, partners, including, ironically, the Church ‘of England, pension trustes that do not support same sex marriage will have the right to create two classes of spouse intheir schemes; opposite sex spouses getting full accrued benefits and same sex couples who do not. Therefore, a gay employee willbe treated less favourably than a straight colleague under an ‘ceupational pension scheme, purely becaise of sexual orientation and this could amount to direct discrimination on grounds of sexual orientation as found in Walker vInnospec Ltd and others ET 241131/2011. This isan injustice which is completely unnecessary. The government 66 Away forward might be to separate legal marriage from religious marriage so that all couples would have to go through a civil legal marriage” {snot willing go remedy this issue, that also occurred under CPA 2004, because of the retrospective costs to pension schemes Inthe private sector. A retrospective cost ‘that will Be a mere £18m, according tothe Office of National Statistics, Gender reassignment Even though transgender people have been able to legally change cheir gender sce 2005, they have had tobe single todo this. The new Act will allow the ‘transgender applicant co gain a full gender recognition certificate and remain ‘within the marriage. However, a full certificate can only be issued once the applicant’ spouse has made a statutory ‘declaration of consent to the marriage continuing under eh §, para 4of the 2642013 | Act. Atransgender applicant without full consent will only be granted an Interim sender recognition certificate and they ‘will have six months in which the non consenting spouse can change their sind. Ifthe spouse's consents still not forthcoming, then theironly option isto apply o legally dissolve the marriage 10 get fall ender recognition certiieate OF course, either party can apply to terminate their marriage a any time Nother area in aw requires spousal ‘consent to any change within a marriage; no consent is required to move abroad, financially destabilise the family or apply {for medical treatment. The government sees this asa need to strike a fair balance lander Art (respect for private and family life, ofboth spouses. The trans spouse hhasa right be granted their gender recognition without undue delay, but the non-trans spouse also has the right tohave their say inthe future of the marriage. Conclusion The Archbishop of Canterbury Justin Wiel, states thatthe Acti incredibly complicated and not consistent” some of these Inconsistencies and inequalities have been discussed above: religious ceremony, termination of marrage, pension rights and spousal consent for gender reassignment. The governments policy objective, set out in the impact statement, {sto“address the disparity that there are currently two separate legal regimes for the relationships of same and opposite sex couples and remove the unfair barrier that currently exists for same sex couples Infact, the Act has not addressed this disparity. Iris likely to prove divisive between same sex couples who want a religious marrage service in the place of ‘worship oftheir choice, and heterosexual couples who do not want 1 enter the Institution of marriage, bur want formal recognition of thei relationship and appropriate remedies should itend. Apart from the labelof marriage’ the Act does not really give same sex couples equivalent rights to those of opposite sex couples. [Away forward might be to separate legal ‘marriage from religious marriage so that all couples would have to go through a evil legal marriage and those who wish to could havea religious or other ceremony, according tothe couple's beliefs or Philosophies, ona later date. NU Janet Barlow, savoriacirerniaw vers bthertfrcshira let (non sractling) (mbarlowshers ack Rebecca Mason, Tectrer nian, University ofHertforeshire LL, LLM (@masen@herac ut)