FRIENDS, PARTNERS OR SPOUSES?

Chapter 1 – Homosexuality, Society and the Law

The historical backdrop to the CPA (note 2)

Fifty years before the CPA was passed, on 24th August 1954, the Wolfenden Committee had been established. It was to consider, in part, ‘the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts’. Their work was set in a very different world from our. The context was that of growing action against male homosexual activity: between 1945 and 1955 the number of annual prosecutions for homosexual behaviour had risen from below 800 to over 2,500; men were being imprisoned for private consensual behaviour with other adults in the distant past.¹ At the end of 1954 there were 1,069 men in prison in England and Wales convicted of homosexual offences.²

The Report was finally published in September 1957. It recommended that ‘homosexual behaviour between consenting adults in private be no longer a criminal offence’. Its defence used traditional Christian language and showed the popular strength of traditional sexual morality: ‘unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business’.

Almost 48 years to the day before that first civil partnership, on 4th December 1957, the Report was the subject of a debate in the House of Lords initiated by the leading Roman Catholic Lord Longford. A number of peers – including the Archbishop of Canterbury, George Fisher - broadly supported Wolfenden. Fisher ‘made a tentative case for retaining consenting buggery as an offence’ but admitted that ‘the threat to general public moral standards from homosexual offences done in private is far less, and far less widespread, than the damage openly done to public morality and domestic health by fornic3ation and adultery’.³

On 7th March 1958, a letter appeared in The Times noting widespread religious support for reform. Its signatories included the bishops of Birmingham and Exeter and leading Christians such as Trevor Huddleston, Donald Soper, Alec Vidler and Leslie Weatherhead. The letter marked the beginning of what led to the Homosexual Law Reform Society (HLRS) which included many leading Christians. Not all Christian leaders agreed. In April a letter was published that argued against change and warned that legislation would bring ‘a most unsavoury subject into undesirable prominence’. Among its signatories were the bishops of Carlisle and Rochester. ⁴

Progress on Wolfenden was slow until in 1965 Lord Arran initiated a debate in the Lords where several bishops supported his call for reform. The Archbishop of Canterbury, Michael Ramsey, was a Vice President of the HLRS and clear that supporting decriminalisation was ‘not to condone the wrongness of the acts’. He proceeded to offer support to legislation and show a good grasp of the subject. As a result he was accused of contributing pornography to the record of Hansard⁵ although it was not Ramsey who spoke of ‘sodomitic societies’ and ‘buggery clubs’ and asked, “Are you Lordships going to pass a bill that will make it lawful for two senior offices of police to go to bed together?’.⁶ Ramsey’s personal response to such contributions was reportedly, ‘Oh dear, oh dear ! What a terrible time the poor things must have had at their public schools!’. ⁷

The Sexual Offences Act was finally passed in 1967 and so male homosexual acts in private between men over 21 were decriminalised. It is, however, important to realise how different that world was from that found among ‘gay rights’ supporters and advocates of civil partnerships today. Lord Arran, the leading advocate in the Lords, spoke on the Third Reading in terms many would now call homophobic. Recalling Wilde’s comment on release from Reading Gaol that ‘we shall win in the end; but the road will be long and red with monstrous martyrdoms’, he urged ‘Today, please God! sees the end of that road’. He continued

I ask one thing and I ask it earnestly. I ask those who have, as it were, been in bondage and for whom the prison doors are now open to show their thanks by comporting themselves quietly and with dignity. This is no occasion for jubilation; certainly not for celebration. Any form of ostentatious behaviour now, or in the future, any form of public flaunting, would be utterly distasteful and would, I believe, make the sponsors of the Bill regret that they have done what they have done. Homosexuals must continue to remember that while there may be nothing bad in being a homosexual, there is certainly nothing good. Lest the opponents of the Bill think that a new freedom, a new privileged class, has been created, let me remind them that no amount of legislation will prevent homosexuals from being the subject of dislike and derision or at best of pity. We shall always, I fear, resent the odd man out. That is their burden for all time, and they must shoulder it like men – for men they are. ⁸

That such attitudes were still widespread is clear from the fact that when ‘celebration’ and ‘ostentatious behaviour’ became more common the next significant legal development was the infamous ‘Section 28’ passed in 1988 during the AIDS crisis and concerns about certain Labour councils. This made it an offence to promote ‘the acceptability of homosexuality as a pretended family relationship’ in schools. Michael Howard, among many others, warned then about the dangers of encouraging young people to believe that homosexuality ‘is on an equal footing with a heterosexual way of life’. ⁹

By 1994, however, the cultural climate had begun to change and attempts were made to reduce the age of consent for homosexual activity. In a Lords debate, the Archbishop of York, John Habgood was the only bishop to vote, favouring reduction to the age of 18 which was passed by Parliament. ¹⁰

The Labour government elected in 1997 was clearly committed to amending or repealing laws viewed as discriminatory. Strenuous attempts were made to equalize the age of consent with that for heterosexual activity at 16. After repeated defeats in the Lords (with bishops being divided in key votes), the Parliament Act had to be used for equalisation from January 2001. Just over two years later, in September 2003, section 28 was also repealed. By then it was also clear that new legislation giving positive legal recognition to same-sex relationships would be introduced and details of the complex passage of what become the Civil Partnership Act and its contents are very helpfully chronicled here.

Civil Partnerships and Marriage (note 22)

The following sketches just some of the many parallels between civil partnership and marriage:

Entering marriage and civil partnership

• The process of entering a civil partnership is intentionally mirrored on that of marriage in terms of time and place and notification of intention to enter etc. ¹¹
• S35 of the CPA authorises the Chancellor of the Exchequer by order to make amendments ‘for the purpose of assimilating any provision connected with the formation or recording of civil partnerships in England and Wales to any provision made…in relation to civil marriage in England and Wales’.

Financial and property rights:

• CPA schedule 5 mirrors the treatment of spouses in the Matrimonial Causes Act 1973
• CPA schedule 6 mirrors the Domestic Proceedings and Magistrates’ Courts Act 1978.
• CPA schedule 7 mirrors sections of the Matrimonial and Family Proceedings Act 1984 in relation to financial provision after dissolution.

Housing:

• CPA schedule 8 amends a large number of statutes ‘to ensure there is equality of treatment between spouses and civil partners and between unmarried opposite sex couples and unregistered same sex partners’ in relation to housing. ¹²
• By schedule 9, the Family Law Act 1996 is amended to give civil partners the same rights in relation to their home as spouses.

Children:

• a parent’s civil partner is granted the same rights as a step-parent by marriage
• civil partners are explicitly permitted to apply for adoption orders
• the legal definition of ‘child of the family’ in the Children Act 1989 now includes a child who has been treated by both parties to a civil partnership as a child of the family.
• More widely, the brother of a civil partner will become legally the uncle of any child of the partnership.

Family relationships:

• CPA s246 clearly redefines familial relationships to include relationships arising through civil partnership eg ‘A’s stepmother includes a person who is the civil partner of A’s mother (but is not A’s parent)’ and ‘mother-in-law includes civil partner’s mother’.

Tax and benefits:

• Regulations in relation to these has been amended so that civil partners are treated the same as married couples

Pensions:

• Surviving civil partners will be treated in the same way as widowers

Wills:

• Formation of a civil partnership, through amendment of the Wills Act 1837 in CPA schedule 4, has the same effect on wills as marriage ie former wills are (with a few exceptions) revoked.
• The effect of dissolution of a partnership on wills also mirrors that for divorce of a married couple.

Effects on marriage:

• While in a civil partnership one is no longer legally able to marry. Schedule 27, para 40 of the Act amends the Matrimonial Causes Act 1973 so that a marriage is void if one of the partners is a civil partner. Those marrying now have to declare any past civil partnership which is noted in the registers and it is now possible to object to a marriage on the grounds that one of the parties is in a civil partnership.
• By amendments to the Marriage Act 1949, entering a civil partnership creates bonds of affinity that may prevent not only those in the partnership but other individuals from subsequently marrying due to the relationship established by a civil partnership.

Dissolution:

The pattern of dissolution of a civil partnership largely mirrors that of the Matrimonial Causes Act 1973:

• it cannot take place within the first year and it can only take place on the basis the relationship has irretrievably broken down. ¹³
  The system of dissolution is also similar
• an initial conditional order (like the Decree Nisi)
• followed by a final order (paralleling the Decree Absolute)

Annulment:

• A civil partnership can also be declared void (ie it never existed) or voidable (annulled from issue of the nullity order).
• The grounds for the latter (s50) even includes, mirroring marriage, the situation where ‘at the time of its formation, the respondent was pregnant by some person other than the applicant’.

The main differences from marriage:

• No religious ceremony, only a civil ceremony
• Entered not by speaking but by signing document
• The grounds for irretrievable breakdown omit any explicit reference to sexual unfaithfulness parallel to the ground of adultery. In contrast, adultery is clearly stated as a separate ground within the Matrimonial Causes Act.
• Under the Nullity of Marriage Act 1971, a marriage is voidable if it has not been consummated (either due to physical incapacity or wilful refusal) or if at the time of marriage one person was suffering from a communicable venereal disease. Such grounds are conspicuous by their absence in the CPA. ¹⁴

Living Together as Civil Partners (note 28)

The Family Law Act 1996 originally defined ‘cohabitants’ as ‘a man and a woman who were living together as husband and wife’ but the CPA – again highlighting the equivalence with marriage - now redefines this as ‘two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners’.¹⁵ The Act, however, nowhere defines ‘living together as if they were civil partners’. The expectation is that case law from Social Security Commissioners in relation to ‘living together as husband and wife’ will apply to same sex couples living together – ‘two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife if they were two people of the opposite sex’. ¹⁶

It would appear, therefore, that as a result of the CPA any two people of the same sex living together may become subject to scrutiny as to whether or not they are ‘living together as if they are civil partners’. Indeed, HM Revenue and Customs have stated that ‘from 5 December 2005 it is therefore not open to a same-sex couple to make their claims as single claimants’. This has led to protests at the extra costs now to be carried by all gay and lesbian couples. ¹⁷

It is not yet fully clear how ‘living together as if civil partners’ will be determined but there is considerable guidance already available on ‘living together as husband and wife’ and HM Revenue and Customs have said ‘our policy is to treat same-sex couples in exactly the same way as opposite-sex couples. A same-sex couple should therefore face no greater nor lesser risk of an enquiry or examination’. The criteria given for this are laid out in some detail and include:

• living in the same household
• stability of relationship
• financial support
• dependent children
• public acknowledgement.

The couple’s sexual relationship is not one of the criteria. Those making enquiries are told

You must not ask any questions about a couple’s sexual relationship. If the claimant introduces the subject, you should take note of any information volunteered but should bear in mind (and explain to the claimant) that it is unlikely to have any relevance to the question of whether they are living together as husband and wife. ¹⁸

Those cohabiting over an extended period with someone of the same sex may therefore now be judged by the government to be ‘living together as if civil partners’ even if they do not enter a civil partnership and do not have a sexual relationship. If so judged they will be granted certain rights they have previously lacked but may find themselves bearing financial costs in relation to tax, benefits and pensions.

Chapter 2 – Church of England Responses to the Law

The key documents discussed in this chapter are available online:

• The Archbishops’ Council’s Response to the Civil Partnership Bill
• The House of Bishops’ Pastoral Statement on Civil Partnerships

In the Lords the following debates involved important contributions from bishops:

• 22nd April 2004: Oxford and Peterborough
• 24th June 2004: Worcester, Rochester, Southwell and Winchester
• On 25th January 2002 there was a debate on an earlier proposed bill in which Winchester and Guildford (now Chelmsford) spoke.
  

Relevant canons of the Church of England (note 39)

The following canons are referred to in the text of chapters 2 and 3:

B 24 Of the baptism of such as are of riper years

1. When any such person as is of riper years and able to answer for himself is to be baptized, the minister shall instruct such person, or cause him to be instructed, in the principles of the Christian religion, and exhort him so to prepare himself with prayers and fasting that he may receive this holy sacrament with repentance and faith.
2. At least a week before any such baptism is to take place, the minister shall give notice thereof to the bishop of the diocese or whomsoever he shall appoint for the purpose.
3. Every person thus baptized shall be confirmed by the bishop so soon after his baptism as conveniently may be; that so he may be admitted to the Holy Communion.

B 31 Of certain impediments to marriage

1. No person who is under 16 years of age shall marry, and all marriages purported to be made between persons either of whom is under 16 years of age are void.
2. Subject to the provisions of the Marriage (Prohibited Degrees of Relationship) Act 1986, no person shall marry within the degrees expressed in the following Table, and all marriages purported to be made within the said degrees are void.

A table of kindred and affinity

In this Table the term ‘brother’ includes a brother of the half-blood, and the term ‘sister’ includes a sister of the half-blood.

The Table shall be in every church publicly set up and fixed at the charge of the parish

B 33 Of the duty of the minister to inquire as to impediments

It shall be the duty of the minister, when application is made to him for matrimony to be solemnized in the church or chapel of which he is the minister, to inquire whether there be any impediment either to the marriage or to the solemnization thereof.

B 35 Of rules to be observed as to the preliminaries and to the solemnization of Holy Matrimony

1. In all matters pertaining to the granting of licences of marriage every ecclesiastical authority shall observe the law relating thereto.
2. In all matters pertaining to the publication of banns of marriage and to the solemnization of matrimony every minister shall observe the law relating thereto, including, so far as they are applicable, the rules prescribed by the rubric prefixed to the office of Solemnization of Matrimony in The Book of Common Prayer.
3. Amarriage may not be solemnized at any unseasonable hours but only between the hours of eight in the forenoon and six in the afternoon.
4. Every marriage shall be solemnized in the presence of two or more witnesses besides the minister who shall solemnize the same.
5. When matrimony is to be solemnized in any church, it belongs to the minister of the parish to decide what music shall be played, what hymns or anthems shall be sung, or what furnishings or flowers should be placed in or about the church for the occasion.

C 4 Of the quality of such as are to be ordained deacons or priests

1. Every bishop shall take care that he admit no person into holy orders but such as he knows either by himself, or by sufficient testimony, to have been baptized and confirmed, to be sufficiently instructed in Holy Scripture and in the doctrine, discipline, and worship of the Church of England, and to be of virtuous conversation and good repute and such as to be a wholesome example and pattern to the flock of Christ.
2. No person shall be admitted into holy orders who is suffering, or who has suffered, from any physical or mental infirmity which in the opinion of the bishop will prevent him from ministering the word and sacraments or from performing the other duties of the minister’s office.
3. Subject to paragraph 3A of this Canon no person shall be admitted into holy orders who has remarried and, the other party to that marriage being alive, has a former spouse still living; or who is married to a person who has been previously married and whose former spouse is still living.
   
   3A. The archbishop of the province, on an application made to him by the bishop of a diocese on behalf of a person who by reason of paragraph 3 of this Canon could not otherwise be admitted into holy orders, may grant a faculty for the removal of the impediment imposed by that paragraph to the admission of that person into holy orders, and any request made to a bishop for an application to be made on his behalf under this paragraph shall be made and considered, and any application made by the bishop to the archbishop shall be made and determined, in accordance with directions given from time to time by the Archbishops of Canterbury and York acting jointly.
   
4. No person shall be refused ordination as deacon or priest on the ground that he was born out of lawful wedlock.

C 26 Of the manner of life of ministers

1. Every bishop, priest, and deacon is under obligation, not being let by sickness or some other urgent cause, to say daily the Morning and Evening Prayer, either privately or openly; and to celebrate the Holy Communion, or be present thereat, on all Sundays and other principal Feast Days. He is also to be diligent in daily prayer and intercession, in examination of his conscience, and in the study of the Holy Scriptures and such other studies as pertain to his ministerial duties.
2. A minister shall not give himself to such occupations, habits, or recreations as do not befit his sacred calling, or may be detrimental to the performance of the duties of his office, or tend to be a just cause of offence to others; and at all times he shall be diligent to frame and fashion his life and that of his family according to the doctrine of Christ, and to make himself and them, as much as in him lies, wholesome examples and patterns to the flock of Christ.
   

Chapter 3 – The Church, The Law and Marriage

Church law and civil partnerships

The powers granted ministers (Note 46)

One feature of the CPA that received little or no publicity at the time was s259. This authorises a Minister of the Crown to make by order ‘such further provision…as he considers appropriate – (a) for the general purposes, or any particular purpose, of this Act, (b) in consequence of any provision made by or under this Act, or (c) for giving full effect to this Act or any provision of it’. It then states that any such order may ‘amend, repeal or (as the case may be) revoke any Church legislation’.¹⁹

‘Church legislation’ is defined as “(a) any Measure of the Church Assembly or of the General Synod of the Church of England, or (b) any order, regulation or other instrument made under or by virtue of such a Measure”. This would appear to strictly allow the minister to amend canons of the Church of England by order.

The House of Bishops’ explanation

The House of Bishops glossed these significant, unprecedented powers in the following terms in para 14 of their statement:

In accordance with the preferences expressed by the Archbishops’ Council and the House of Bishops, the Government has included certain enabling provisions in the legislation. These enable the Government, with the consent of the Church, to amend any provisions in ecclesiastical legislation (for example in relation to pensions) that would fall foul of the new law.

It is worth noting that the example the bishops give is dealt with by a separate section (s255) of the legislation and not under s259.

The changes made by Order (note 49)

Details as to the changes already made under s259 are available here in relation to four Measures (Aug 05) and here in relation to pensions (Dec 05).

Synodical concerns

In the Feb 06 Synod there were questions raised on a number of matters and the answers are worth reading (especially to q35 and q51-55) as is a speech by the Venerable Norman Russell on the Church’s relationship with the state.

Church Discipline and Human Rights (note 50)

Archbishop Rowan Williams answered questions concerning civil partnerships and church discipline at the Third Global South Encounter. He said:

But we had a discussion at the House of Bishops, I think two, three weeks ago, on the question of how we would approach the issue of discipline here. And we have a common opinion, we have guidelines prepared for us by our advisors and if it can be established that a priest seeking to register a civil partnership is in fact active in a sexual union, then that priest is liable to the discipline of the church. That is said very clearly and the bishops have discussed this. What form the disciplines takes, since we are in the middle of revising our disciplinary provision, I can’t at this moment say with precision, but I’ll simply mention that it is recognized as a disciplinary offence if priests either refuse to declare that his civil partnership is not a sexual union, or if they volunteer to the bishop that it is a sexual union. So, we are seeking ways of giving our overall statement, credibility in terms of disciplinary practice.

Chapter 4 – Civil Partnership: A Christian Option?

A family relationship (note 57)

The use of family language in relation to civil partnerships fits wider changes in legal understandings of the family and its relationship to marriage. As one leading family lawyer has written,

Historically, there have been two ways in which family relationships have been identified by law – through marriage and through the blood ties….It has become more common to approach family relationships with a greater emphasis upon their content and the functions they fulfil rather than upon the form of their creation. This is beginning to affect how the law determines which of these relationships should be given legal recognition. ²⁰

So, whereas Article 12 of the European Convention on Human Rights (1950) spoke of a ‘right to marry and to found a family’ (which was understood as one single right), Article 9 of the Charter of Fundamental Rights of the European Union (2000) states, ‘the right to marry and the right to found a family shall be guaranteed’. Here they are distinct and separable rights and it is clear that the latter is now able to be claimed by civil partners in UK law.

Chapter 5 – Friends, Partners or Spouses? Conclusion

The CofE’s influence on the law (note 59)

The claim that the government was seeking to reconcile two competing and incompatible claims – that for ‘gay marriage’ and that of the church that the relationship should be non-marital and not avowedly sexual - finds support in relation to the second by the statement of Archbishop Rowan to the Global South:

We could have sought exemptions on the ground that allowing a civil partnership to be contracted by a clergyman was contrary to our doctrine. But to establish that, we would have to establish that a civil partnership in British law was indeed equivalent, legally and morally to a marriage. We would have to establish that a civil partnership in British law necessarily involve sexual union. Now since some of us have spent quite a lot of time in the House of Lords prior to the bill being passed, arguing that a civil partnership must not be so defined, and had moderate success in getting that accepted, it would have been rather strange for us then to say a civil partnership is necessarily a sexual union… I’ll explain why we were reluctant simply to opt out of this, because as I said we would have to establish something that we had fought to have outside the provision of the Act, that is, that it was necessarily a sexual union.

Notes

1. Anthony Grey, Quest for Justice: Towards Homosexual Emancipation (Sinclair-Stevenson, 1992), p 21.

2. Patrick Higgins, Heterosexual Dictatorship: Male Homosexuality in post-war Britain (Fourth Estate, 1996), p 56. One of the most (in)famous trials was that of Peter Wildeblood whose Against the Law (Weidenfield & Nicolson, 1955) gives a sense of the period.

3. Quoted in Grey, op.cit., p 25. In an earlier 1957 letter to the Home Secretary, Fisher agreed with Rab Butler that rapid legal changes might lead ‘the vulgar’ to ‘suppose that it was legalising vice’ (Andrew Holden, Makers and Manners: Politics and Morality in Post-War Britain, Politico’s, 2004, p 84).

4. Grey, p 27.

5. See Owen Chadwick, Michael Ramsey: A Life (OUP, 1990), pp 145-9.

6. For a recent account of this period and debates see Holden, pp 122-30.

7. Private comment to Lord Arran reported in Grey, op. cit., p 90.

8. HL Debate, 21 st July 1967. Quoted in Grey, p 126.

9. Quoted in Holden, p 253.

10. Holden, p 299.

11. The two non-standard procedures mirror the Marriage Act 1983 and the Marriage (Registrar General’s licence) Act 1970. There is even a provision (s210) paralleling the procedures of the Foreign Marriage Act 1892 to allow an Order in Council to be made to enable same sex couples to register a civil partnership at British Consulates abroad.

12. Gray & Brazil, p 115.

13. There are four grounds which could establish such breakdown: the partner’s behaviour, two years’ separation with consent, five years’ separation without consent, desertion for a continuous period of at least two years.

14. In response to the consultation prior to the Act, the government granted that ‘the absence of any sexual activity within a relationship might be evidence of unreasonable behaviour leading to the irretrievable breakdown of a civil partnership, if brought about by the conduct of one of the parties. However, that would be a matter for individual dissolution proceedings’. (p36). Unfortunately this has led some to believe that non-consummation is a legal basis for dissolution or annulment. Similar statements were made in relation to adultery but significantly it was made clear that whether sexual unfaithfulness ‘amounted to unreasonable behaviour on which dissolution proceedings could be grounded would be a matter for individual dissolution proceedings’ (p35). It is therefore clear that neither sexual activity nor sexual exclusivity are essential to civil partnerships per se as a legal category.

15. CPA, Sch 9, para 13(2). The FLA had previously been amended so as to include two people of the same sex who were in ‘an equivalent relationship’ to marriage and this is now clearly a civil partnership.

16. Gray & Brazil, 12.09, p 144. The parallel is then clearly stated in the 2005 Finance Bill (clause 166) in March 2005 which treats, in relation to any tax or duty, married couples as equivalent to civil partners and similarly ‘persons who are not civil partners but are living together as if they were’ with ‘persons who are not married to each other but are living together as husband and wife’.

17. For critique see http://www.petertatchell.net/partnership/statebenefits2.htm

18. http://www.hmrc.gov.uk/manuals/ccmmanual/CCM15120.htm

19. S259(3)(C). The issue was raised on various websites in the summer of 2005 when Orders were issued and questions have been raised in General Synod but the official response has been to treat the question as simply pragmatic (pressure of time required it) and to ignore the serious theological questions this raises.

20. Gillian Douglas, An Introduction to Family Law (2 nd edn, OUP, 2004), pp 30,31.