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The Civil Partnership Act 2004, Same-Sex Marriage and the Church of England

  • Jacqueline Humphreys (a1)

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.

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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.

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).

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.

11 Civil Partnership Act 2004 s 2(1).

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)).

15 Civil Partnership Act 2004, s 1(3).

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.

22 See the Civil Partnership Act 2004, Sch 5, para 21.

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).

32 See the Civil Partnership Act 2004, s 251, substituting the Sex Discrimination Act 1975 (c 65), s 3.

33 See the Civil Partnership Act 2004, ss 31–33.

34 See the Civil Partnership Act 2004, s 255.

35 Matrimonial Causes Act 1973, s 12(c).

36 Civil Partnership Act 2004, s 50(1)(a).

37 Matrimonial Causes Act 1973, s 13(1); Civil Partnership Act 2004, s 51.

38 Matrimonial Causes Act 1973, s 12(d); Civil Partnership Act 2004, s 50(1)(b).

39 317 couples.

40 See the Matrimonial Causes Act 1973, s 1(2).

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.

42 Ibid s 214(b).

43 Dennis v Dennis (Spillett cited) [1955] P 153, [1955] 2 All ER 51, CA.

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.

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.

46 Civil Partnership Act 2004, s 3(1)(d), Sch 1.

47 Eg a man cannot marry his mother or sister and cannot enter a civil partnership with his father or brother.

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.

49 Civil Partnership Act 2004, s 50(1)(c).

50 Matrimonial Causes Act 1973, s 11(c).

51 Civil Partnership Act 2004, ss 3(1)(a), 49(a).

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).

53 Otherwise the church would refuse to marry the infertile and infertility would be a ground for nullity.

54 See the Civil Partnership Act 2004, ss 75–79.

55 See the Civil Partnership Act 2004, s 79.

56 R v Dibdin [1910] P 57, CA.

57 [1910] P 57 at 109.

58 Paragraph 20.

59 Paragraph 17.

60 Paragraph 18.

61 Issues in Human Sexuality, para 5.6.

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
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