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Published online by Cambridge University Press: 31 July 2008
The Civil Partnership Act 2004 enables same-sex couples to enter into a status that provides very many of the same rights and responsibilities that married couples have in respect to each other and the wider community. This paper first considers the extent of the legal similarities between civil partnerships and marriage; that is to what extent civil partnerships are 'same-sex marriage' in practical effect. Secondly it considers to what extent the conceptual understanding of civil partnerships within the Act reflects the current conception of marriage within English law; that is the extent to which civil partnerships are 'same-sex marriage' in theory. Thirdly, and finally, some of the specific dilemmas for the Church of England in the light of this are considered.
1 This is a revised and updated version of a paper first delivered on 16 June 2004 as a contribution to the 2004 series of London Lectures of the Ecclesiastical Law Society and in a further revision at the Greenbelt Festival on 29 August 2005.Google Scholar
2 The Civil Partnership Act 2004, Part 2, comprises ss 2–84. Similar arrangements are also provided for Scotland and Northern Ireland in Part 3 (ss 85–136) and Part 4 (ss 137–209).Google Scholar
3 Ibid s 8.
4 Ibid s 10.
5 Ibid ss 11, 17(1). In exceptional circumstances the Registrar General may shorten the waiting period under s 12.
6 Ibid s 17(3), (4).
7 See Ibid s 18.
8 See Ibid s 19.
9 See Ibid s 20.
10 Amendments to the Marriage Act 1949 by the Immigration and Asylum Act 1999 (c 33), s 169(1), Sch 14, para 3, reduce the previous waiting of 21 days to 15 days, subject to the power of the Registrar General to reduce this in exceptional cases.Google Scholar
11 Civil Partnership Act 2004 s 2(1).Google Scholar
12 Ibid s 2(4).
13 Ibid s 2(5).
14 Marriage Act 1949 (12, 13 & 14 Geo 6, c 76), s 45(2), and ss 45A(4), 46B(4)(added respectively by the Marriage Act 1983 s 1(7), Sch 1, para 11, and by s 1(2)).Google Scholar
15 Civil Partnership Act 2004, s 1(3).Google Scholar
16 Ibid ss 37(2), 38(1).
17 Ibid s 41(1).
18 Ibid s 42.
19 Ibid.
20 Ibid ss 37(1)(d), 56, 57.
21 See the Civil Partnership Act 2004, s 72(1), Sch 5, paras 2(1), 6(1), 10(1), 15(1). The Matrimonial Causes Act 1973 (c 18), Part II, comprises ss 21–40A.Google Scholar
22 See the Civil Partnership Act 2004, Sch 5, para 21.Google Scholar
23 See ibid ss 73, 74.
24 See ibid ss 65–68.
25 See ibid s 69.
26 See ibid s 70.
27 See ibid s 254, Sch 24.
28 See Ibid s 71.
29 See ibid s 81, Sch 8.
30 See ibid s 82, Sch 9, amending the Family Law Act 1996 (c 27), Pt 4 (ss 30–63), and related enactments.
31 See the Civil Partnership Act 2004, s 83, amending the Fatal Accidents Act 1976 (c 30).Google Scholar
32 See the Civil Partnership Act 2004, s 251, substituting the Sex Discrimination Act 1975 (c 65), s 3.Google Scholar
33 See the Civil Partnership Act 2004, ss 31–33.Google Scholar
34 See the Civil Partnership Act 2004, s 255.Google Scholar
35 Matrimonial Causes Act 1973, s 12(c).Google Scholar
36 Civil Partnership Act 2004, s 50(1)(a).Google Scholar
37 Matrimonial Causes Act 1973, s 13(1); Civil Partnership Act 2004, s 51.Google Scholar
38 Matrimonial Causes Act 1973, s 12(d); Civil Partnership Act 2004, s 50(1)(b).Google Scholar
39 317 couples.Google Scholar
40 See the Matrimonial Causes Act 1973, s 1(2).Google Scholar
41 Adultery is considered further below under the subheading ‘Faithful’. Even the provision for the intervention of the Queen's Proctor is replicated in the Civil Partnership Act 2004: see s 39.Google Scholar
42 Ibid s 214(b).
43 Dennis v Dennis (Spillett cited) [1955] P 153, [1955] 2 All ER 51, CA.Google Scholar
44 Indeed, another ground for nullity of marriage, the fact that the respondent was, at the time of the marriage, suffering from a venereal disease in a communicable form, is also not carried over to civil partnerships. This was because the government was aware of medical evidence that people can carry venereal disease for many years without their knowledge and that therefore it is not appropriate for a ground for nullity; however, deliberate transmission of a sexually transmitted disease would be considered as a basis for dissolution as a fact proving unreasonable behaviour. Whilst this approach has some logic, it is surprising that the government has not therefore removed this ground in respect of nullity of marriage. In practice, the use of nullity procedure generally, and this ground in particular, is extremely rare.Google Scholar
45 This raises the interesting question whether the civil partner of an Anglican priest can regard it as sufficiently unreasonable to justify a dissolution that his or her partner refuses to engage in sexual activity because of the teaching set out in Issues in Human Sexuality.Google Scholar
46 Civil Partnership Act 2004, s 3(1)(d), Sch 1.Google Scholar
47 Eg a man cannot marry his mother or sister and cannot enter a civil partnership with his father or brother.Google Scholar
48 This is an outworking of the biblical concept of spouses being ‘one flesh’ and therefore taking on each other's family relationships as their own.Google Scholar
49 Civil Partnership Act 2004, s 50(1)(c).Google Scholar
50 Matrimonial Causes Act 1973, s 11(c).Google Scholar
51 Civil Partnership Act 2004, ss 3(1)(a), 49(a).Google Scholar
52 See the Gender Recognition Act 2004 (c 7), s 11, Sch 4, and the Civil Partnership Act 2004, s 250. See also s 50(1)(d), (e).Google Scholar
53 Otherwise the church would refuse to marry the infertile and infertility would be a ground for nullity.Google Scholar
54 See the Civil Partnership Act 2004, ss 75–79.Google Scholar
55 See the Civil Partnership Act 2004, s 79.Google Scholar
56 R v Dibdin [1910] P 57, CA.Google Scholar
57 [1910] P 57 at 109.Google Scholar
58 Paragraph 20.Google Scholar
59 Paragraph 17.Google Scholar
60 Paragraph 18.Google Scholar
61 Issues in Human Sexuality, para 5.6.Google Scholar
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