Same-sex Marriage in England

Same-sex marriage is recognised and performed in parts of the United Kingdom,

England, Scotland, and Wales. Same-sex marriage is not performed or recognised in
Northern Ireland. Marriage is a devolved issue in parts of the United Kingdom, and
the status of same-sex marriage is different in England and Wales, Scotland and
Northern Ireland.

1. Legislation to allow same-sex marriage in England and Wales was passed by

the Parliament of the United Kingdom in July 2013 and came into force on 13
March 2014, and the first same-sex marriages took place on 29 March 2014.

2. Legislation to allow same-sex marriage in Scotland was passed by the

Scottish Parliament in February 2014 and took effect on 16 December 2014.
The first same-sex marriage ceremonies occurred on 16 December 2014 for
same-sex couples previously in civil partnerships. The first same-sex
marriage ceremonies for couples not in a civil partnership occurred on 31
December 2014.

3. Same-sex marriage is not performed or recognised in Northern

Ireland. Prior to the March 2017 elections, First Minister of Northern
Ireland Arlene Foster stated that the Democratic Unionist Party would
continue to use a petition of concern to block any bill which would legislate to
allow same-sex marriage. Same-sex marriages from other jurisdictions are
treated as civil partnerships.

Of the fourteen British Overseas Territories, same-sex marriage has been legal in
Akrotiri and Dhekelia and the British Indian Ocean Territory (for UK military
personnel) since 3 June 2014, the Pitcairn Islands since 14 May 2015, the British
Antarctic Territory since 13 October 2016, Gibraltar since 15 December 2016,
Ascension Island since 1 January 2017, the Falkland Islands since 29 April 2017,
Bermuda since 5 May 2017, and Tristan da Cunha since 4 August 2017. Of the
three Crown dependencies, same-sex marriage has been legal in the Isle of Man
since 22 July 2016 and in Guernsey since 2 May 2017.

Legal History
In common law, a marriage between persons of the same-sex was void ab initio (A
contract is null from the beginning if it seriously offends law or public policy in
contrast to a contract which is merely voidable at the election of one of the parties to
the contract). In 1680, Arabella Hunt married "James Howard"; in 1682 the
marriage was annulled on the ground that Howard was in fact Amy Poulter, a
'perfect woman in all her parts', and two women could not validly marry. In 1866, in
Hyde v. Hyde and Woodmansee (a case of polygamy), Lord Penzance's judgment
began "Marriage as understood in Christendom is the voluntary union for life of one
man and one woman, to the exclusion of all others."

In Talbot (otherwise Poyntz) v. Talbot in 1967, the prohibition was held to extend
where one spouse was a post-operative transsexual, with Mr Justice Ormerod
stating "Marriage is a relationship which depends on sex, not on gender". In 1971,
the Nullity of Marriage Act was passed, explicitly banning marriages between
same-sex couples in England and Wales. The parliamentary debates on the 1971 act
included discussion on the issue of transsexualism but not homosexuality.

The 1971 act was later replaced by the Matrimonial Causes Act 1973, which also
declared that a marriage is void if the parties are not respectively male and female.
Prohibition of same-sex marriages was also included in the marriage legislation of
Scotland and Northern Ireland. The Marriage Order (Northern Ireland) 2003 states
there is a legal impediment to marriage if the parties are of the same sex. The
Marriage Act (Scotland) 1977 had a similar legal impediment, but following the
passage of the Marriage and Civil Partnership (Scotland) Act 2014, the act no
longer prohibits marriages if both parties are of the same sex.

On 17 July 2013, royal assent was granted to the Marriage (Same Sex Couples) Act
2013. On 10 December 2013, the government announced that the first same-sex
marriages would take place from 29 March 2014.

Civil Relationship
In 2004, the Civil Partnership Act was passed and came into effect in December
2005. It created civil partnerships, which gave same-sex couples who entered into
them the same rights and responsibilities of marriage. These partnerships were
called 'gay marriages' by some of the British media, however, the Government made
clear that they were not marriages.

Since Section 9 of the Marriage (Same Sex Couples) Act 2013 came into force, any
couple registered in a civil partnership is granted the ability to convert that
partnership into a marriage.

A civil union, also referred to by a variety of other names, is a legally recognized

arrangement similar to marriage. These unions have been established in a number
of countries since the late 1990s, often developing from less formal domestic
partnership legislation. In Denmark, Finland, Iceland, Norway and Sweden, they
have since been replaced, and in a number of other countries supplemented, by
same-sex marriage. Civil unions are often seen by campaigners as a "first step"
towards legalizing marriage for same-sex couples. While civil unions are
predominantly established for both opposite-sex and same-sex couples, in a number
of countries they are available to same-sex couples only.

Beginning with Denmark in 1989, civil unions under one name or another have
been established by law in several, mostly developed, countries in order to provide
legal recognition of relationships formed by unmarried same-sex couples and to
afford them rights, benefits, tax breaks, and responsibilities similar or identical to
those of legally married couples. In Brazil, civil unions were first created for
opposite-sex couples in 2002, and then expanded to include same-sex unions
through judicial decision nine years later.

Many jurisdictions with civil unions recognize foreign unions if those are essentially
equivalent to their own; for example, the United Kingdom lists equivalent unions in
Civil Partnership Act Schedule 20. Same-sex marriages performed abroad are
commonly recognised as civil unions in jurisdictions that only have the latter.

Early History
In 2003, the British government announced plans to introduce civil partnerships
which would allow same-sex couples the rights and responsibilities resulting from
marriage. The Civil Partnership Bill was introduced into the House of Lords on
March 30, 2004. After considering amendments made by the House of Commons, it
was passed by the House of Lords, its final legislative hurdle, on November 17,
2004, and received Royal Assent on November 18. The Act came into force on 5
December 2005, and same-sex, but not opposite-sex, couples were able to form the
civil partnerships from 19 December 2005 in Northern Ireland, 20 December 2005
in Scotland and 21 December 2005 in England and Wales. Separate provisions were
included in the first Finance Act 2005 to allow regulations to be made to amend tax
laws to give the same tax advantages and disadvantages to couples in civil
partnerships as apply to married couples. At that time, the Church of England, the
state church in England, permitted clergy to enter into same-sex civil partnerships.

Aside from the manner in which couples register and the non-use of the word
"marriage", civil partnerships grant most of the same legal rights as marriage and
generally operate under the same constrictions (one difference being that marriage
requires dissolution by divorce while a civil union does not). It is not legal to be in
both a civil partnership and a marriage at the same time. Nevertheless, some of
those in favour of legal same-sex marriage object that civil partnerships fall short of
granting equality.

Both same-sex marriages and civil unions of other nations will be automatically
considered civil partnerships under UK law providing they came within Section 20
of the Act. This means, in some cases, non-Britons from nations with civil unions
will have greater rights in the UK than in their native countries. For example, a
Vermont civil union would have legal standing in the UK, however in cases where
one partner was American and the other British, the Vermont civil union would not
provide the Briton with right of abode in Vermont (or any other US state or
territory), whereas it would provide the American with right of abode in the UK.

In September 2011, the succeeding coalition government announced its intention to

legalise same-sex marriage in England and Wales by 2015 at the latest. The future
status of civil partnerships is unclear. The Scottish Government, which has
devolved responsibility for such legislation, held a consultation - concerning both
civil and religious same sex marriage - in the autumn of 2011. Legislation to allow
same-sex marriage in England and Wales was passed by the Parliament of the
United Kingdom in July 2013 and came into force on 13 March 2014, and the first
same-sex marriages took place on 29 March 2014. The first same-sex marriages in
Scotland took place in December 2014.

So, what are the major differences?

Same sex couples in the UK can currently choose between a civil partnership and
marriage a choice which is (somewhat controversially) not available to
heterosexual couples. Surprisingly though, the differences between the two are not
significant and include the following:

1. For legal purposes, civil partners cannot call themselves married, and
married couples cannot refer to themselves as being civil partners
2. When it comes to getting a divorce or dissolution, adultery cannot be stated
as grounds for dissolving a civil partnership, but can for marriage.
3. Civil partnership certificates include the names of both parents, whereas
marriage certificates only contain the fathers name.
4. Civil partnerships are registered by signing the civil partnerships document,
whereas marriages are solemnised by saying a prescribed form of words.
THE FAMILY UNIT
At present, there are factors pulling in opposite directions in terms of the
size of the British population. While the average lifespan has increased in
the UK, British fertility rates have been steadily declining since the
population boom of the immediate postwar years. A higher number of
couples do not have children (20 per cent) and those that do generally
have smaller families. This is largely attributed to both improvements in
female education and career prospects and greater social acceptance of
contraception. Childbearing is frequently postponed until the late twenties or
early thirties (the average age of fathers at childbirth is now just over thirty) and
the majority of women work outside of the home both before and after having
children, regardless of marital status. Consequently, the often-quoted average
British family with 2.4 children has now dwindled to 1.8: a trend which
reflects the overall decline in the proportion of conventional family units.
Only 24 per cent of contemporary British households fall into the two adults plus
dependent children nuclear model, and this figure includes not only married
couples but the increasing number of long-term cohabitees

Same Sex Parents and Their Children

Studies estimate that between 1 and 9 million children in the United States have at
least one parent who is lesbian or gay. There are approximately 594,000 same-sex
partner households, according to the 2000 Census, and there are children living in
approximately 27 percent of those households.

It is difficult to obtain an accurate count of same-sex parent families because many

lesbians and gay men are not open about their sexual orientation due to fears of
discrimination, such as loss of employment, loss of child custody, and antigay
violence. There is not a usual gay family. Some same-sex couples may decide to
have a child within their relationship, while others may bring children from
previous heterosexual or same-sex unions. The rise in same-sex parenting is
partially due to the increase in options available for same-sex couples to become
parents. Although most children of same-sex couples are biological children of one of
the parents, a growing number are the result of donor insemination, surrogacy,
foster care and adoption.
Most research studies show that children with two moms or two dads fare just as
well as children with heterosexual parents. In fact, one comprehensive study of
children raised by lesbian mothers or gay fathers concluded that children raised by
same-sex parents did not differ from other children in terms of emotional
functioning, sexual orientation, stigmatization, gender role behavior, behavioral
adjustment, gender identity, learning and grade point averages. Where research
differences have been found, they have sometimes favored same-sex parents.

For example, adolescents with same-sex parents reported feeling more connected at
school. Another study reported that children in gay and lesbian households are
more likely to talk about emotionally difficult topics, and they are often more
resilient, compassionate and tolerant. The same concerns that face many
heterosexual parents when they are deciding to have children also face same-sex
parents including time, money, and responsibilities of parenthood. Likewise, many
of the parenting tasks faced by same-sex parents are similar to those faced by
heterosexual parents, such as providing appropriate structure for children, while
also being warm and accepting, setting limits, teaching open and honest
communication, healthy conflict resolution, and monitoring of childs peer network
and extracurricular activities. Some differences may include adapting to different
types of family forms, the impact of social stigma on the family, and dealing with
extended family members who may not be supportive of same-sex parenting. One of
the biggest challenges facing same-sex parented families is that they must live in a
culture that supports heterosexist and homophobic attitudes and beliefs, which can
affect these families in a variety of ways. A second complication is that these
families are usually part of a blended family and include children from previous
heterosexual marriages. Some of these families may deal with disagreement from
other family members about the authenticity and validity of their family patterns.
Lack of support from a previous heterosexual partner or the other biological parent
can cause major conflict and distress within the family system. Today, there are
many therapists available who specialize in gay and lesbian issues and provide a
safe, nonjudgmental and understanding environment for the family. Frequently,
gay and lesbian parented families will seek therapeutic help for guidance, support,
and recognition that they may not be receiving from the broader social arena. Major
issues affecting same-sex parented families that are often addressed in therapy:

1. Lesbian and gay parented families may have concerns about discrimination
in parenting and custody arrangements. A parents minority sexual
orientation and/or gender identity status may be brought up in custody
 disputes as a reason to restrict or deny custody by the childrens other parent
and/or by the courts.
2. The many co-parenting and blended family complexities present for
heterosexual parents can also be present for same-sex parents with the
additional complexities of discrimination, stereotypes, and assumptions.
3. Relationships and problems with non-biological parent figures are common
among lesbian and gay parented families simply due to the biological
complexities involved with conceiving children when parents are the same
sex.
4. In same-sex relationships, it is common for extended family to acknowledge
intimate relationships differently from heterosexual relationships; this
discriminatory treatment can be confounded by parenting relationships as
well. Extended family may see parenting as a necessary step in validating a
relationship for same-sex couples or they may view parenting with similar
biased and discriminatory views, even denying one parents relationship to
the children.
5. Explaining relationship status and family make-up to school professionals,
medical professionals, childrens friends/parents, as well as explaining
relationship status and family make-up to children, can be uniquely complex
for same-sex parents. Though many family relationships may be complex,
explaining family relationships is uniquely complex for lesbian and gay
parented families because of the lack of societal norms and relevant examples
in media, stereotyped notions about such relationships that are common, and
the fear of discrimination faced by these families.
6. Competent parenting may be influenced by gay and lesbian parents ability to
accept and acknowledge their identity and how they are able to negotiate
living in a heterosexist, homophobic, or otherwise discriminatory society,
while rearing their children in a family unit that is not socially sanctioned.
Therapists acknowledge the prevalence both of homophobia that is
experienced by the family as a result of the actions of others, as well as the
existence of internalized homophobia and how this may impact families.
Internalized homophobia is defined as a set of negative attitudes and affects
toward homosexuality in other persons and toward homosexual features in
oneself. Therapists will help illustrate to the family how homophobia could be
impacting them. Both internalized homophobia and experiences of outside
discrimination may mean that families need more time in therapy to build
rapport with the therapist and to feel comfortable disclosing personal and
family-related concerns.
Same-Sex Parents

Overview

The law surrounding same-sex parents is complex and if legal advice is not sought
from the outset then it can result in complications. The manner by which a child is
conceived in a same-sex relationship has a considerable impact on which parents
are considered to have parental responsibility for that child. Full legal advice
should always be sought when same sex couples are considering raising a child so
that parents can ensure that they are aware of their legal rights in relation to that
child.

Parental Responsibility

Parental responsibility entitles parents to have an input into the important

decisions in a childs life. This includes issues concerning the childs health,
education, religion and welfare.

Where a child has a mother and father and they both already have parental
responsibility, a step-parent may acquire parental responsibility if everyone who
has parental responsibility consents to that and enters into a parental
responsibility agreement.

Adoption

Same-sex couples may adopt a child. This may be ordered with the parents consent
or for a child who has been placed for an adoption by an adoption order. When the
Court considers adoption the childs welfare is the paramount consideration. The
Court will also take into account factors such as the childs wishes, the childs needs
and the effect on the child of being adopted. Upon the making of an adoption order
or an adoption agency placing a child with the applicant for adoption the
Applicant(s) will be granted parental responsibility for the child.

An adoption order ensures that only the adopters have parental responsibility. Any
other individuals who had parental responsibility see that right extinguished and
they will also not be allowed to apply for contact with the child. Where an adoption
order has been made in a foreign country that order may be recognised in England
and Wales, this is especially likely where the adoption order was made in a Hague
Convention Country.

If an adoption order has not been made or is not recognised in England and Wales
and the Applicant lives in a different country to the child, then an application will
have to be made in England and Wales. To do so one of the Applicants must be
domiciled in the British Isles. Alternatively all Applicants must have been
habitually resident in the British Isles for a year before the application. There are
no requirements for the domicile of the child.

Two female parents

Whether both partners are considered a childs parents will depend on the parties
relationship and the circumstances surrounding the conception of the child. The
biological Mother of the child must carefully consider who should have parental
responsibility for the child. They must also consider what role, if any, they would
like the biological father to play in the childs life:

1. If a lesbian couple are in a civil partnership and the baby is conceived by

sperm donation, provided that the partner wants to be considered a parent,
they will be considered the second parent and share parental responsibility.
This applies irrespective of the arrangements, unless the child was conceived
through sexual intercourse with the genetic father. Must be civil partners at
the time of conception. When the child is 18 years old they may be able to
find out more details about the donor father.
2. The presumption of parenthood does not currently extend to married lesbian
couples. The Marriage (Same Sex Couples) Act 2013 provides that a same sex
marriage has no relevance to who a childs parents are. This means that
unlike a female civil partner of the mother of a child, a female spouse is not
automatically considered the parent. There may well be an amendment to the
law in the future, to address this point but currently a female spouse would
need to seek parental responsibility as below.
3. If two females have not entered into a civil partnership or marriage, the
partner will only also have parental responsibility and be considered a second
parent if the fertility treatment was in a UK licenced clinic and the partner
has completed the requisite forms.
 4. Another female parent may also apply for parental responsibility or
residence, acquire it by virtue of being registered on the birth certificate, or
have a parental responsibility agreement with the mother.

A child can only have 2 parents. This is therefore the mother and her partner or the
mother and the father. The father is able to be considered as the legal second parent
if:

1. The mother is not in a civil partnership and her partner did not comply with
the fertility clinic in Englands requirements.
2. If the mother is in a civil partnership then the biological father will only
legally be considered the second parent if the child was conceived by sexual
intercourse.
3. In order to avoid any disputes with a Father where there is artificial
insemination it is prudent to obtain contemporaneous evidence that the child
is not conceived through sexual intercourse.

If the biological father is not legally considered the second parent then he will not
have a duty to pay child support, will not have parental responsibility and will not
have the right to have contact with the child.

Two male parents

Where a gay man or a gay couple wish to have children, one option is surrogacy.
Whilst some gay couples choose to adopt children, others prefer to have children
who are genetically theirs.

The parents who commission the surrogacy have no parental responsibility for the
child at the time of its birth if the child is not conceived through sexual intercourse.
A Court order is required to transfer parental responsibility to the commissioning
parents.

A parental order may be made if the child is conceived using the sperm of one of the
commissioning parents. The child must also be living with the commissioning
parents and the application must be made within 6 months of the childs birth. The
surrogate mother must agree to an order being made and understand the
consequences of it, namely that it transfers parental responsibility to the
commissioning parents.