From April's sweet showers, marriage equality flowers

Marriage equality to become law…

 

... in New Zealand at least, following a vote last week by the House of Representatives there.

By a majority of 77 votes to 44, the Marriage (Definition of Marriage) Amendment Bill 2013 was passed on its third reading.  It received Royal Asset on 19 April 2013.

New Zealand’s Department of Internal Affairs now has four months to make the changes necessary for marriage licensing.  Marriage equality will be effective there from 19 August 2013.

New Zealand will be the first country in Oceania, and the second Commonwealth country (after Canada) to allow same sex-couples to marry.

New Zealand has a well-established pedigree for affording universal rights to groups denied them, and long before others follow their lead.  See, for example, the issue of women’s suffrage.  The Electoral Bill granting New Zealand women the franchise was introduced in 1893.  The same year, Elizabeth Yates was elected Mayor of Onehunga, the first time a woman held such a post anywhere in the British Empire.

Barely 25 years later, along shuffled the UK, with the Representation of the People Act 1918.  That Act – introduced after decades of campaigning, the highlights of which included (amongst other outrages) the force-feeding of imprisoned suffragettes - gave women over 30 who met minimum property qualifications the vote.  Ten years later, the Representation of the People Act 1928 extended the voting franchise to all women over the age of 21, granting women the vote on the same terms as men.      



France's parliament on the vote



Closer to home, on Tuesday France's parliament also voted to enshrine marriage equality in law.  France’s lower house approved a marriage bill in a 331-to-225 final vote, following impassioned speeches by lawmakers for and against the legislation.

And earlier this month, the Uruguayan parliament approved a marriage equality measure.  That bill passed the lower house with a 92 / 71 vote majority.  The Uruguayan senate approved the bill in a 23-8 vote.  Now what is required is the signature of the President, Jose Majuica (who has already indicated he supports the measure) on the bill before it passes into legislation.

The response to the Uruguayan vote

Historically never especially fond of democracy, the conservative religious communities in the countries in question remained true to form.  In Uruguay, for example, the Roman Catholic Church described marriage equality as a harsh blow to the institutions of marriage and the family.  In France, a right-wing senator doomsayed that marriage equality would open the way to people being able to marry animals or objects (whatever gets you through the night, dear…)

But as the votes suggest, these dreary misanthropes are outnumbered by those who support marriage equality.  The New Zealand vote was greeted in parliament by cheers, applause and the singing of a traditional Maori love song "Pokarekare Ana” by some MPs and those in the public gallery (it’s worth checking out the video:  the genuineness of the reaction is really very beautiful and moving).

The scene in New Zealand's parliament after the vote

All of which makes the lumbering approach to marriage equality in England and Wales seem pretty dispiriting.  On 24 January 2013, the Marriage (Same Sex Couples) Bill was introduced to the Commons.  On 5 February 2013, the bill passed its second reading in the House of Commons by 400 votes to 175.  The Bill was then examined in 13 sittings line-by-line, by Committee.  It completed its Committee Stage on 12 March 2013 and is due to have its report stage and third reading in the House of Commons on a day to be determined.  Whilst the majority of the public supports marriage equality (see the YouGov surveys from June 2012 and December 2012), I detect much hand-wringing yet to come to placate the vocal minority against, and particularly those who maintain their appointed deity has set his / her / its face against the concept.

Please don’t let it take the 25 plus years that British women had to wait after their New Zealand sisters got the vote for the universal human right of marriage equality to be afforded to same-sex couples here.

The line of succession and LGBT monarchs

Parliament is currently debating the Succession to the Crown Bill.  The proposed law is intended to update rules on succession to the throne of the United Kingdom of Great Britain and Northern Ireland. 

If passed, the Bill will (amongst other things) do away with the delightfully quaint concept of primogeniture, namely that a monarch’s firstborn son becomes King irrespective of whether there is an elder daughter.  It will also repeal the prohibition on a person succeeding to the Crown if he or she marries a Roman Catholic.

But what, pray tell, if a future Queen was a lesbian?  What if her child – born through surrogacy – were included in the line of succession?

These are the issues that blindside me at 3:30am many mornings….



Act of Settlement 1701



And I’m not alone.  Thankfully, some equally perspicacious Peers in the House of Lords raised just these questions during the Bill’s Report Stage last week. 

As matters currently stand, the law governing succession means only an heir to the body is included in the line of succession.  Featuring in the Act of Settlement 1701 and the Acts of Union 1707, that phrase was intended to mean a direct biological descendent of the monarch. 

Lord True, a Conservative Peer, proposed changes to the Bill that would make it crystal clear that an heir to the body could only be the product of a heterosexual marriage.  As the Hansard account of Report Stage shows, Lord True was sufficiently vexed about “emerging legislation for same-sex marriage and the techniques of surrogate childbirth” that he proposed removing a child born to either from the line of succession. 




Elton John
(no relation of Lord Elton)

 

His was not the lone voice in the wilderness:  Lord Elton (tragically not John), a former Conservative minister whose wife is aide to the Queen, supported the proposal.

Said Lord True:

“What happens if we have a lesbian queen in a same-sex marriage who conceives using an egg implanted with donor sperm?  The law should be clear, but this is a question that has not been thought through in the Bill.”

He was only assuaged when he received confirmation existing laws meant only a Royal child born to heterosexual parents would be included in the line of succession.



Lord True didn’t go quietly, however, prophesying, “This may seem fanciful or long in the future, but I believe Parliament should reflect on it … I believe the question will inevitably arise.”

Richard I -
A gay man

So what if it does?  Will it really matter if a future King or Queen has a child with his or her same-sex partner / spouse via surrogacy?  Is it the surrogacy point that is the problem?  It must be, because it’s not as if LGBT individuals are unheard of in the Royal lineage.  William II (William Rufus) of England is widely recognised as gay.  He died without issue, but the proposals of Lords True and Elton (not John), if taken to their natural conclusion, would hold his children less entitled to succeed to the throne because of their father’s sexual orientation.  Likewise, on all counts, Richard I (the Lionheart). 



A gay or bisexual man (depicted here
as King James VI / I)



Edward II (he of the apocryphal red-hot poker inserted up his anus) had five children by Isabella of France.  He, too, is thought to have been gay.  Are his children any less entitled to participate in the line of succession by virtue of their parents' wedding having a whiff of lavender about it?  Or is the line of succession saved because he entered into a sham marriage? 

And let’s not forget James I of Great Britain, described alternatively as either gay or bisexual.  He had seven children with the woman who might or might not have been his “beard”, Anne of Denmark.  His sexuality did not end the line of succession. 



None of the nay-saying deals with the elephant in the room, namely that hereditary monarchy is unfair and elitist.  A much more relevant debate would be whether, in a modern and democratic society, anybody should be expected to defer to another simply because of accident of birth.  Given the absurdity of that system enduring, I wonder whether we don’t have better things to worry about than whether a future monarch is born to a gay King or lesbian Queen. 

In the meantime, I’m confident Lords True and Elton (not John) can rest a little easier knowing their concerns about the demise of the monarchy due to the problems visited by same-sex relationships are more “Chicken Licken’” – unwarranted fears the sky is falling - than founded in reality. 

The Succession to the Crown Bill is scheduled for its Third Reading in the House of Lords on 22 April 2013.

Here’s to the happy day when we see our first Queen and her Queen Consort, or King and his King Consort.

Civil Partnerships - A potted history and bluffers' guide

Earlier today, the Public Bill Committee finished its scrutiny of the English and Welsh Marriage (Same Sex Couples) Bill 2012-13.  That scrutiny involved a line-by-line consideration of the Bill, followed by a report to Parliament.  The Committee approved – without amendment – all eighteen clauses and seven schedules to the Bill.  One additional provision proposed related to making Civil Partnerships available to heterosexual couples.

 

The Bill will now return to the House of Commons for the Report Stage.  There, MPs will have an opportunity to consider further amendments or new provisions that ought to be added.  Report stage is normally followed immediately by debate on the Bill's third reading.

 

There is no set time period between the end of Committee Stage and the start of the Report Stage.  It is estimated that Report Stage should be concluded by the end of May 2013.

 

Given that Civil Partnerships will be with us for some time to come, then, this blog attempts a whistle-stop tour around the formalities for forming and ending a Civil Partnership, and the legal consequences of being in one.  The content is correct at the time of writing, but of course may need revision depending on what happens with the Bill.  Also, the information provided is particular to the English and Welsh situation. 

 

The Civil Partnership Act 2004

Prior to 2004, a same-sex couple might live together, and be entitled to certain (limited) legal recognition of their relationship by virtue of being cohabitants.  However, there was no mechanism equivalent to marriage through which that relationship could be formally recognised.

This changed with the Civil Partnership Act 2004 (CPA).  The CPA introduced recognition for same-sex relationships.  Same-sex couples were able to register their relationship and acquire many of the same rights and obligations that married heterosexual couples have.

The CPA came into force on 5 December 2005, since which date Civil Partnerships have been available to same-sex (but not heterosexual) couples.

Forming a Civil Partnership

The CPA defines a Civil Partnership as a relationship between two people of the same sex, either: 

·                     formed by registration in England and Wales, or

·                     formed overseas and recognised in England and Wales.

The definition makes it plain that a Civil Partnership between a heterosexual couple is not currently possible.

In order to form a Civil Partnership in England and Wales, notice must first be given in the same way as is required for a marriage.  Notice is given at the couple’s local register office.  Notice must be given, and publicly displayed, for at least fifteen days before the Civil Partnership ceremony.  The proposed Civil Partners must have lived in the area in which they wish to give notice for at least seven full days before they will be eligible to give notice.

If the couple plan to hold the Civil Partnership ceremony other than where they live, they should also contact the register office responsible for that area to give notice. 

Once notice has been given, it is valid for up to twelve months.  However, if the couple decide to change the venue for their Civil Partnership, fresh notice must be given.

Both of the proposed Civil Partners must attend the register office in person.  No-one else can go for them, and one cannot go for the both of them. 

The following details must be given for each of the proposed Civil Partners in the notice:

·                    full name;

·                    age (the minimum age for a Civil Partnership in England and Wales is 16, and written consent of parents or guardians may be required for those under 18);

·                    address;

·                    nationality;

·                    current status (that is, whether single, divorced, widowed, etc);

·                    occupation, and

·                    intended venue for the Civil Partnership.

Documentary evidence will be needed to prove name, nationality, age and address.  A current passport or driver’s licence will be sufficient in many cases.  Alternative documents that might be suitable include birth certificates, national ID cards, bank statements and utility bills.  Proposed Civil Partners should check with the Superintendent Registrar in advance to make sure they have the necessary documents. 

So long as the notice requirements have been met, the Civil Partnership is formed on both parties signing a Civil Partnership document.  They must sign this document in the presence of one another, a Civil Partnership Registrar and two witnesses.

It is not currently possible to conduct a Civil Partnership ceremony on religious premises.  However, it is possible to arrange for the Civil Partnership to be blessed subsequently in a religious ceremony.  Whether it is depends on the particular tenets of the religion in question.

Frequently, people change their name when registering a Civil Partnership.  A copy of the Civil Partnership certificate will usually be sufficient proof of the change.

Recognising foreign Civil Partnerships

The CPA includes provisions about recognising here legal partnerships and same-sex marriages from other countries.  Schedule 20 to the CPA includes a list of countries and relationships that will automatically be recognised here as Civil Partnerships.

Even if a foreign relationship is not mentioned in Schedule 20, it will likely be recognised here as a Civil Partnership so long as: 

·                     the relationship is a legally exclusive one (that is, it is not available to those already in another marriage or legally-recognised relationship);

·                     the relationship is of indeterminate duration (that is, it does not end automatically after a defined period), and

·                     the effect of the relationship is that the parties are treated as a couple or as married.

As a general rule, so long as the formalities for a valid same-sex relationship have been observed in the country where the ceremony occurred, and the parties have legal capacity (that is, they are adults and not suffering from a disorder that impairs their ability to make sound decisions), the relationship will be recognised here. 

Civil Partnership Contracts

Civil Partners may decide to enter into an agreement that says how their property, income and other financial resources will be divided if the relationship ends.

The agreement may be reached either before or after the Civil Partnership ceremony.  If before, the document is called a Pre-Civil Partnership Contract (or Agreement).  If after, it is called a Post-Civil Partnership Contract (or Agreement).

Civil Partnership Contracts are treated in exactly the same way as Pre-Nuptial or Post-Nuptial Agreements (between husbands and wives).

In short, a Civil Partnership Contract is not absolutely enforceable.  However, its terms would be taken into account by any court considering what was a fair division of assets, income and financial resources on the breakdown of the Civil Partnership.

The consequences of Civil Partnership

Those in a Civil Partnership enjoy the same rights as those in a marriage.

So, a Civil Partner can acquire parental responsibility for his or her partner’s children by agreement or court order.  Civil Partners are generally treated as married people for the purposes of entitlement to welfare benefits.

If a Civil Partnership breaks down, the partners have the same claims to maintenance, lump sum payments, property transfer orders and pension sharing as husbands and wives enjoy.

Some other areas where Civil Partners enjoy the same rights as married heterosexuals include:

·                    for inheritance tax purposes;

·                    entitlement to claim from a Civil Partner’s estate;

·                    entitlement to the equivalent of a widow’s / widower’s pension from a Civil Partner’s fund;

·                    immigration / nationality considerations;

·                    entitlement to claim in the event of the Civil Partner suffering a fatal accident, and

·                    employment benefits.

Unless specifically stated, it ought to be assumed that Civil Partners’ rights mirror those that spouses have.

Ending Civil Partnerships

The processes for ending a Civil Partnership are virtually identical to those for ending a marriage.  There are only a few key differences:

·                    a Civil Partnership cannot be terminated through nullity on account of wilful non-consummation of the relationship;

·                    whilst a marriage ends with divorce, the corresponding label for Civil Partnership is dissolution;

·                    a Civil Partner may not rely on adultery to prove the irretrievable breakdown of the relationship when seeking a dissolution;

·                    the preliminary nullity or dissolution order is called a Conditional Order (in marriage cases, it is called Decree Nisi);

·                    the final order that ends the Civil Partnership is called a Dissolution Order (in marriage cases, it is called Decree Absolute).

Leaving aside these minor variations, the procedure for obtaining a dissolution is identical to that for obtaining a divorce.  The procedure for obtaining a financial order on dissolution is identical to that for obtaining one on divorce.

A timely piece of research during LGBT Adoption & Fostering Week

Today marks the start of national LGBT Adoption and Fostering Week. 

Portentous, then, that today also sees the release of a report from British Agencies for Adoption and Fostering (BAAF) comparing the experiences of and approaches to parenting of same-sex parents and their heterosexual counterparts.

The research, carried out by Cambridge University’s Centre for Family Research, confirms that the adopted children of same-sex parents are thriving.

The report examines the experiences of 130 adoptive families, comprising 49 heterosexual couples, 41 gay men and 40 lesbian parents.  Their children were aged between four and eight.  The study focussed on family relationships, how parents coped and how children adjusted. 

The conclusion reached is that same-sex adoptive parents are raising children just as successfully as heterosexual ones.  Gay men are found to be faring particularly well in managing the parenting challenges presented by children who have had negative and damaging experiences in early life.  There was no evidence to support speculation that children's masculine or feminine tendencies were affected by having gay or lesbian parents.  Family life and the quality of relationships were very similar for children regardless of their parents' sexual orientation. 

Professor Susan Golombok, the report’s co-author, commented on the results:  “Overall we found markedly more similarities than differences in experiences between family types.” Quoted in Sunday’s Independent, she added:  "What I don't like is when people make assumptions that a certain type of family, such as gay fathers, will be bad for children. The anxieties about the potentially negative effects for children of being placed with gay fathers seem to be, from our study, unfounded."

The report rather puts paid to antediluvian views like those expressed by Welsh Secretary, David Jones, last month, following his claim that gay couples "clearly" could not provide a "warm and safe environment for the upbringing of children".  Not that I suspect an evidence-based approach would disabuse him, and people like him, of their prejudices.

Speaking on the eve of LGBT Adoption and Fostering Week, the Government’s adoption adviser, Sir Martin Narey, urged more LGBT adopters and fosterers to come forward.  "I have seen how LGBT people, who tend to come to adoption as their first choice for becoming parents, bring determination and enthusiasm to it.  Many more gay adopters need to be encouraged to come forward.”

On current figures, about 4,000 children are waiting for adoptive families, and a further 9,000 need foster carers.  These figures are increasing annually.  At present, each year only about 60 gay couples and 60 lesbian couples adopt. 

Some thirty events are scheduled around the country to encourage LGBT individuals to become adopters and fosterers. 

LGBT people interested in adoption or fostering should consider attending an event near to them during the week.  Alternatively, they should contact the Social Services Team at their Local Authority to register their interest, obtain information and start the assessment process.

LGBT Adoption Round-Up

You know what it’s like:  you wait around for ages for a legal development in the arena of LGBT adoption, and then half a dozen come along all at once.  In this blog, I look at some of the more significant news that has emerged over the past fortnight from around the world affecting alternative adoptive families. 

Puerto Rico

The Supreme Court, in a 5-4 decision, affirmed (20 February 2013) a ban on adoption by same sex parents. 

The court was considering the case of a Puerto Rican lesbian who sought to legally adopt her partner's child.  The couple challenged a local law that "bans the adoption of a minor if the biological mother doesn't give up her rights, unless the couple consists of a man and a woman."

Puerto Rico’s highest court concluded that that law was valid, as Puerto Rico's constitution “does not prohibit discrimination based on sexual orientation.”  The court acceded to arguments that the “traditional family” comprising a father and mother “best protected the well-being of minors”. 

Interestingly, the court's president, Federico Hernández Denton, disagreed with the majority decision.  He called the ruling unconstitutional in his minority Judgment.  The three other dissenting judges said they did not believe the constitution prohibited adoptions by same-sex couples, and that they would have liked the State to recognize second-parent adoption. 

The Russian Federation

According to media reports, the Russian State (20 February 2013) called the adoption of a Russian boy by a US woman who revealed she was gay only after the adoption concluded a “serious worry.”

Konstantin Dolgoy, Russia's human rights envoy, said the boy now is facing circumstances with his gay American family that are “harmful to his psychological health.”

The woman was living in a same-sex relationship, but decided not to disclose this during the adoption proceedings.  Her sexuality and relationship status only came to light when she and her partner separated several years later, and a dispute arose about custody of the child. 

Dolgoy’s homophobic rant continued thus:  “[The boy] was sucked into an argument over a relationship that was quite dubious from the moral point of view.  We believe that [his] situation is unacceptable and harmful to his psychological health.”

France

France’s National Assembly (on 12 February 2013) adopted, on first reading (in a 329-to-229 vote), a bill affording marriage equality to same sex couples. 

The bill also opens up adoption to married people of the same sex, whether it be the joint adoption of a child by both spouses or the adoption of one spouse’s child.

The draft legislation includes adaptation measures, notably for determining the adopted child’s surname, since the current rule – whereby the child is given the father’s surname unless the parents decide otherwise – is inappropriate in the case of same-sex couples.

The bill now goes to the Senate for consideration, which is controlled by President Francois Hollande’s Socialists and his political supporters. 

"This law is a first necessary step, a social evolution that benefits society overall," said Socialist representative, Corinne Narassiguin, announcing her party's support for the measure. "Opening up marriage and adoption to homosexual couples is a very beautiful advance. ... It is an emblematic vote, a vote that will mark history."

Germany

Germany's Federal Constitutional Court gave its decision (19 February 2013) in a case about gay couples’ adoption rights.

The case concerned two women, one of whom had adopted a Bulgarian child some years earlier.  The other woman sought permission to adopt the child, which was denied.  The law permitted a civil partner to adopt his or her partner’s biological child, but not their stepchild or adopted child. 

The court held that a German constitutional provision that "marriage and the family shall enjoy the special protection of the state," could be used to justify ruling out same-sex partners adopting the other partner's adopted child.

 

Presiding Judge Ferdinand Kirchhof said:  "In marriage as in a civil partnership, adoption provides the child in the same way with legal security and material advantages in terms of care, support and inheritance law."

The court directed the government to draw up new legislation by June 2014.

The decision means that same-sex couples can now adopt the same child sequentially (that is, at different times to one another) in Germany.  Paradoxically, however, they still cannot adopt children together as a couple.

Austria

In the case of X and Others v. Austria, the European Court of Human Rights ruled (19 February 2013) that Austria had violated the European Convention on Human Rights.

The case concerned the inability of a woman in a same-sex relationship to adopt her long-term partner’s son without severing the birth mother’s legal ties with the child (that is, a second-parent adoption).

The Grand Chamber of the court in Strasbourg (comprising 17 Judges), found there was no persuasive reason to treat the couple differently from an unmarried heterosexual couple in the boy's adoption.  Under Austrian law, allowing the woman to adopt the boy would have severed his birth mother's parental rights, based on a 2006 Austrian decision that the term "parents" was intended to mean two people of different sex.

The court found that Austria had discriminated against the couple.  It ordered the government to pay them €10,000 in damages and about €28,500 in costs and expenses.

   

So, some progress balanced against some backsliding.  As the news from Puerto Rico and Russia demonstrates, there remain a good number of stalwart bigots who cleave to the view that a parenting ability is linked to the gender of the adults to whom one is attracted and with whom one falls in love.  And all despite the decades of evidence that has been consistent in showing that gay and lesbian parents are as capable as heterosexual ones, and their children as psychologically healthy and well-adjusted as children reared by heterosexual parents.

We’ve come so far, but we’ve got so far to go…