The Marriage (Same Sex Couples) Act 2013 came into force on 17 July 2013 and allows same-sex couples the same right to marry as opposite-sex couples.  Although the Act has received Royal Assent and is now law, it has not yet been implemented and the first same-sex marriages are not expected to take place until the summer of 2014.

Ceremonies will be able to take place in any civil venue and religious organisations will have the opportunity to “opt in” to performing religious same-sex marriages.  However, the Church of England and the Church in Wales are specifically prevented by the legislation from conducting same-sex marriages. 

The new Act remains separate from the Marriage Act 1949, which allows opposite-sex couples to marry, although the provisions are largely the same and afford married same-sex couples the same legal status as married opposite-sex couples.  The term “marriage” and “married couple” is now extended to include same-sex couples.

However, there are some differences between the provisions for annulment and divorce for same-sex marriages in the Marriage (Same Sex Couples) Act and those provided for same-sex couples in the Matrimonial Causes Act 1973.

One of the grounds upon which an opposite-sex marriage may be annulled is for non-consummation due to the incapacity of either party to consummate it or the wilful refusal of the other spouse to consummate it.  Although a same-sex marriage may also be annulled, the non-consummation ground does not apply.

In obtaining a divorce, an opposite-sex spouse may rely on the adultery of the other to prove that the marriage has irretrievably broken down.  The definition of adultery is voluntary sexual intercourse between two persons of the opposite sex, of whom one or both is married but who are not married to each other”.  The Marriage (Same Sex Couples) Act has amended the Matrimonial Causes Act to add that “only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section.”  A same-sex spouse would therefore be unable to obtain a divorce based on adultery (although any alleged infidelity with another person of the same sex could be used as evidence of unreasonable behaviour in support of a divorce application).

The new legislation also makes some alterations to the Gender Reassignment Act 2004, as it will now be possible for a transgender person to remain married after changing their gender, provided their spouse agrees. 

Previously, an application for a Gender Recognition Certificate (to be recognised legally as a person of the opposite sex) had to include a statutory declaration as to whether or not the applicant was married or in a civil partnership, as obtaining the Gender Recognition Certificate (GRC) would have the effect of making the marriage or civil partnership void. 

Following the new legislation, a married person applying for a GRC may remain married if their spouse consents.  Applications for GRCs will now have to include a statutory declaration stating where the marriage took place together with a statutory declaration from the applicant’s spouse to say that they consent to the marriage continuing after the issue of a full GRC.  If the spouse does not consent, a statutory declaration will need to be made by the applicant to say that their spouse has not made a statutory declaration consenting to the marriage continuing, and the marriage will be made void.

A same-sex marriage remains distinct from a civil partnership, although couples who have previously entered into a civil partnership will be able to convert it into a marriage by way of an application.  The resulting marriage will then be treated as having begun on the date of the civil partnership.  Details of the procedure are still to be finalised before the law is implemented. 

Civil partnerships currently remain available only to opposite-sex couples but the Government has indicated that it will review this in the near future.  A recent consultation found that 61% of respondents supported civil partnerships being made available to same-sex couples as well as opposite-sex couples.  Similar provisions are in force in several European countries including France and The Netherlands, where the majority of couples opting for civil partnerships are opposite-sex.


Jacqui Cox

Creighton & Partners