Civil Partnerships and Sexual Orientation Team

Women and Equality Unit, DTI

2nd Floor

335 Great Smith Street

London

SW1P 3BQ

 

 

 

civil.partnerships@dti.gsi.gov.uk

CAGS

PO Box 464

LONDON

SE25 4AT

 

Tel 020 8645 0943

www.cags.org.uk/

civilpartnerships@cags.org.uk

 

Monday, September 29th, 2003

 

 

Dear Sirs,

Response to “Civil Partnership:
a framework for the legal recognition of same-sex couples”
from the Croydon Area Gay Society.

 

The Croydon Area Gay Society welcomes the opportunity to respond to the proposals for legal recognition of same-sex couples.

In doing so we represent a group of 70, mostly gay men, centred on Croydon in Surrey, including several gay couples. Our constitution includes working for homosexual equality before the law. We have also consulted with other groups and experts in particular fields.

General Comments

  1. We welcome this development, which has been advocated by many in this country for very many years.
  2. We differ fundamentally on the proposed distinction between marriage and civil partnership, but we propose a way forward.
  3. The proposals accept that certain terms have considerable legal ambiguity. We suggest that this is the opportunity to clarify legal ambiguity.
  4. We urge the Government to consider an additional form of partnership registration.

Detailed Responses

We respond, point by point, to the questions raised in the consultation document and raise some issues on which the present proposals might be modified with significant benefit.

This document appears on our website where our members and many others have looked at it and made their contributions.

Yours sincerely

 

Roger Burg and Ross Burgess

(Registered Partners with the GLA)

on behalf of the Croydon Area Gay Society

General Comments

1) We approve of these proposals enthusiastically

For many years, civil recognition of same-sex partnerships has been argued from human rights and from the contribution that these partnerships make to society and to the state, as the consultation document acknowledges.

General Comments

2) The definition of “Marriage”

We believe that the proposed civil partnerships would be better dealt with by re-defining civil ‘marriage’ to remove the restriction to opposite sex couples. This would simplify the issue and the legislation.

Currently two distinct relationships are proposed: marriage and civil partnership. Civil partnership will not involve the concept of ‘bigamy’ (but will retain ‘perjury’); there will be no equivalent of religious marriage; the consultation document implies that the term ‘spouse’ will be avoided; the introduction of equal pension provision is not supported fully and there is no provision for the change of family name to indicate a change of family relationship. These differences and others make the concept of civil partnership legally distinct from marriage.

Thus when partnership legislation is tested in court, each precedent will apply either to marriage or to civil partnership, and the two will unintentionally drift apart. And when marriage legislation is revised, it would be out of step with civil partnership. Clearly it is more sensible to establish common definitions, rather than definitions that are identical.

There are several reasons why marriage should not be restricted to opposite sex couples only.

·                     Transsexual marriages are acknowledged as marriage, even though the Government accepts that it must recognise the transsexual partner in their acquired sex. What the Government decides to do to accommodate these requirements in the future is not at issue. These marriages exist already and are legal marriages.

 

·                     There are over 80 distinct medical diagnoses of the conditions classed as ‘intersex’. The UK continues to recognise the marriages of intersex people. These people cannot be categorised simply as either a man or a woman. So the legality of marriage of people who are not of opposite sexes is not an issue.

 

·                     The consultation document accepts the argument from human rights, that there must be some compelling reason to deny rights and duties to one form of partnership if one awards them to another. No sufficient reason has been put forward.

 

·                     Partners, whether same-sex or married, support each other financially, and in ill health, and give emotional support that has a demonstrable effect on well-being and emotional stability. This is of significant value to the well-being of citizens but also saves the state significant expense. The state encourages this by giving rights to couples to support their partnerships. Since the benefits occur for same-sex as for mixed-sex partnerships the same rights should be given to both.

 

·                     The UK already accepts the married status of couples from countries like Sri Lanka and Canada, where the law does not prevent same-sex marriage. Although informed opinion is uncertain on this point, it would be difficult to accept some married couples and not others, from the same jurisdiction.

 

·                     Two other European countries have introduced same-sex marriage, and the UK is already committed to accepting these marriages to fulfil the requirements of the freedom of movement within the EU. In its report on Fundamental Rights in the EU in 2002, European Parliamentarians call on the member states to ‘abolish all forms of discrimination – whether legislative or de facto – which are still suffered by homosexuals, in particular as regards the rights to marry …’. Moreover, the report makes explicit mention of the current limitations of free movement rights and urges member states to take the necessary steps to extend these rights to all definitions of ‘family’.

 

In short this is not a pipe dream. The definition of marriage in this country to exclude same sex couples occurred less than 300 years ago. It seems to have reflected social trends, not to have been a deliberate legislative change. Several other countries have introduced, not just partnership rights, but same-sex marriage in very recent years. This is the right thing to do, and this is the occasion to do it.

The term ‘Marriage’

The word used is a separate issue.

By avoiding the word 'marriage' the Government deflects some opposition. We believe that many gay people feel that marriage has become rather debased as an institution. So the name is not an issue for many. Therefore we broadly approve of the use of alternative terms.

However, this is subsidiary to our primary concern that civil partnership and marriage are defined to be functionally equivalent in law.

 

General Comment

3) The definition of ‘next of kin’, ‘spouse’ and other terms

‘Next of kin’

The proposals refer to the ambiguity of ‘next of kin’ in several sections. This legislation is the opportunity to define such terms. For instance we recommend defining the term ‘next of kin’ to include civil partners for the purposes of hospital visiting. The issue is relevant to many points in the consultation document so it is made once here.

One reason to begin to define the term in law is that there is a common misapprehension that the term next of kin already has legal meaning. It may be difficult to define the term in specific legal contexts, but it will be much harder to ‘educate the public’ on the vagaries of the law.

The other reason to define the term legally is that it is already defined in other Government guidelines. Guidelines are more easily ignored. For instance, if ‘next of kin’ remains undefined in law for the purpose of hospital visiting, a Roman Catholic nurse might well follow the recent edict from the Congregation for the Defence of the Faith, and feel compelled to disregard same-sex partnerships altogether. This is a problem likely to increase as the Government encourages faith-based organisations to provide the state’s services. This eventuality will be less common if not prevented if the term ‘next of kin’ were defined in law.

‘Spouse’

This term already has legal meaning. The intent of the proposals is to give civil partners the same rights as spouses in financial and legal contexts. If the two terms are not defined to mean the same in these contexts, then legal precedent and future legislation will tend to erode the intention, inevitably, over time. The solution is to define the two terms as legally equivalent, for specific purposes, as, for instance in paragraph 7.4 on Elections.

We urge the Government to consider defining the following terms as having equivalent meanings in law.

  1. Ideally ‘civil partnership’, for same sex couples, should be defined as a relationship functionally equivalent for legal purposes to ‘marriage’ for heterosexual couples, together with the related terms ‘husband’, ‘wife’, ‘spouse’, ‘divorce’, ‘annulment’ and so on. This would make the legislation shorter, more easily understood and more robust.
  2. If this proposal were to be rejected, the proposed legislation should define only the related terms (e.g. ‘husband’, ‘wife’, ‘spouse’, ‘divorce’, ‘annulment’) to include their equivalent in civil partnership. This would leave the legislation less concise, less easily understood and less robust.
  3. If both of these proposals to define the terminology of marriage to include civil partnerships were to be rejected, we would urge the Government to define the terms of civil partnership (e.g. ‘civil partner’) to be equivalent to those of marriage (e.g. ‘spouse’); though this would be less clear and more open to interpretation.
  4. Finally if none of these proposals were accepted, we would urge that specific terms like ‘spouse’ should be defined to include ‘civil partner’ in specified contexts, like elections, insurance or hospital visiting.

These proposals provide ways to avoid the perceived problem of introducing ‘gay marriage’, while retaining (although with diminishing effect) the long-term effect of the proposals.

 

General Comment

4) Loose Ends

There are quirks and anomalies in the present law on marriage. This is the time to tie up the loose ends for civil partnership as well as for marriage.

They include:

3.4     Exclusivity

4.13    Privacy

7.6 to 7.9 Wills and Mental Incapacity

7.9     Making Financial Decisions for Adults with Mental Incapacity

7.17         Hospital visiting – ‘next of kin’

9.12    Money Purchase Scheme anomaly

and we comment on these in the Detailed Comment below.

 

General Comment

5) A third form of legally protected partnership

There is a strong case to be made that many people have become mutually dependent, some by a decision to do so, others through unexpected circumstances, and the state has sound reason to recognise their circumstances. It is possible that there are more of these relationships than gay relationships.

Although paragraph 2.9 declares that this is not under consideration, we note that in other countries that have legislated for same-sex partnerships, legislation for other relationships has often followed.

However, it should be considered seriously at this point because the consultation document contains a very full list of the rights and duties of married couples and civil partners. By removing those rights and duties that are not essential to a mutually dependent relationship of two people, the terms of a more minimal protected relationship remain.

This would allow a three-layer model where a couple chose to become mutually interdependent in marriage, or they could choose a minimal protected relationship, or they could choose to avoid all such rights and duties and take their chances.

This protected relationship would not require that the partners be of opposite sexes. It would not preclude close kin (3.11) in order to include siblings who had become interdependent. Eligibility (4.12) might include the test of at least one year in this relationship. Immigration rights (4.18, 7.1 – 7.3) would be excluded, as would Elections (7.4) and Giving Evidence in Court (7.5). The provisions of Living Wills and Enduring Power of Attorney would adequately make paragraph 7.6 unnecessary. Most significantly, parenting rights would not be included (5.1, 7.13 – 7.16, 8.2 – 8.9, and 9.26). The consultation document notes that some long-term same-sex couples chose not to live together. They could be accommodated if the test of living together (5.4) were not a requirement.

This proposal does not conflict with 6.5. It gives a simplified arrangement that is easy to understand.

Such a 3-layer system would highlight the unique commitment and value of marriage. We note the Government’s commitment to educate heterosexual couples on the dangers of living in an imagined ‘common law marriage’, and we would point out that the introduction of such an intermediate step that was not ‘marriage’ would serve this function better than advertisements, or citizenship lessons. It would provide a valuable option that would both offer protection, and highlight the differences between having no rights, a protected partnership, and marriage.

Recently some have claimed that the needs of other mutually dependent couples that are not in romantic relationships invalidates the case for civil partnerships. In fact the case for a legal relationship like marriage, along side another legally protected partnership for other couples, has been put over very many years.

We would hope that serious consideration might be given to such a legal relationship, as the present proposals seem to have anticipated it – although we acknowledge that there are other considered approaches to this issue.

Detailed Comment

This section responds to questions raised in the consultation document, and raises some other issues. The numbers refer to the paragraphs in the consultation document.

3.6 – 3.9  Bigamy

We understand that bigamy is rising, with about 100 prosecutions a year. It seems that charges of bigamy rather than perjury are found necessary in these cases. If so, this is no time to reduce the available legal penalties for bigamous civil partnerships.

Rather than introduce ‘new offences of perjury’, the legislation should define the terms used in the Perjury Act 1911 to include same–sex partners. See our General Comments 3).

3.4  Exclusivity of partnerships

The Government proposes to record marriages electronically, and ‘civil partnerships would be subject to the same arrangements’ (4.17). So we propose that it should be a requirement at the point of initial application to marry or to register that both parties should be made aware of the other’s previous recorded relationships.

4.1, 4.3, 4.4  Delivery – the formalities

This section is remarkably vague.

It is not clear whether the civil contract will be a signed document, spoken vows, or neither. Most of the known Christian same-sex partnership ceremonies (in effect marriages) generally did not require any vows from the couple. Some continental civil marriages only require signatures. Some detail clearly needs to be proposed here. If the register offices come under local government control, the variety of provision across the country will be very inconsistent. This needs to be dealt with in the legislation.

We address only one point here.

We disagree with the provisions for the venue and celebrant suggested in paragraphs 4.1 4.3 and 4.4.

The detail of 4.1 to 4.4 is surprisingly vague, but it suggests that the role of the registry office would be to oversee the formal signing of documents, or, at best, to provide a standard form of words along the lines of a registry office wedding.

We note that the rise of registry office weddings for heterosexuals has resulted in a loss of attention to the weight of the commitment of marriage. By contrast, same-sex partnership ceremonies have been individually written, the vows carefully considered, and the families and other witnesses involved in a manner that, we feel, has deepened the relationship and added to its stability.

Therefore we believe that the existing arrangements for authorised persons and for registered premises to conduct these ceremonies (or their successors under current proposals) should be used, and the legislation and regulations modified, so that the same persons and buildings are authorised for the registration of civil partnerships.

We note that some secular venues and many churches are registered for marriages, and already perform partnership ceremonies or blessings for same sex couples. The same celebrants and clergy add their experience and wisdom to the preparation and the occasion. The ability to swear one’s vows before one’s friends and family in a supportive community – or to enter a sacramental relationship before God and one’s church congregation – add to the significance of the commitment. The process of working out a ceremony, discussing vows, readings and wording from many sources tends to make couples work through many of the issues in their relationship that are difficult to talk about, like the practical meaning of faithfulness and the details of financial interdependence. The contribution of an experienced celebrant and the support and wisdom of the community can be invaluable.

As proposed this would not compel any celebrant or institution to do anything, but it would encourage registrations to be taken more seriously.

4.9 Exceptions - Pre-registration

We are aware of many older couples who have chosen not to register their partnerships with the GLA. They have done so firstly because they would not gain the rights they had campaigned for, for decades, and it was not clear what rights they might inadvertently lose. The other reason is that solemnising a relationship becomes increasingly irrelevant as the relationship becomes more established.

However as couples retire without mutual pension benefits, as they become infirm and eventually die, the need for a legal relationship increases acutely.

If and when civil partnerships become law, there will be large numbers who will be entitled to their new rights, but will be waiting for a time-slot to register at the register office. And when they urgently need the rights to which they are entitled, the state’s administration will fail them.

By contrast, the Gender Recognition Bill proposes a fast-track to solve what is a much less common problem. A transsexual person would have to fulfil several detailed legal requirements to be able to legally change gender. The last is to declare the intent to adopt the new sex for life.

But for someone who had been living in their new gender for six years or more, these legal checks are irrelevant, and a simplified, fast-track option of form-filling is proposed.

We propose that for a period of one year before civil partnerships take legal effect, and for a period of two years thereafter, existing partnerships should be able to apply for civil status by signing declarations. The forms would require evidence of most of the following criteria:

·                     two years cohabitation,

·                     shared bank accounts,

·                     shared household bills,

·                     documents for enduring power of attorney,

·                     documents for living wills,

·                     wills recognising each other as life partners, and

·                     a local authority registered partnership certificate, blessing or similar ceremony.

Partnership status would be awarded by the registry office but would not be recognised until the legislation came into effect.

However, we propose that once the status is awarded, even before the date the legislation comes into effect, the certificate should protect each partner from loss of home or joint property, discriminatory taxation, loss of insurance, pension fund or other detriment that would not apply had they been married.

4.13 – 4.17 Privacy issues         

You asked:

·                     Are there other measures that could be taken to further ensure the safe registration of same-sex couples while meeting the need for a  public register?

For relationships of heterosexual, homosexual and transsexual people there are separate cases for privacy to be made. We believe that the following proposal answers the points against privacy given in 4.23 to 4.25.

Heterosexual case

There are cases of women from certain ethnic and religious communities who have married outside of the arranged marriage that their family chose. Others have married outside their race and religion. A recent Radio 4 programme traced some of these fugitive couples to various locations around the country to which they had fled, hiding from imminent death threats and an organised attempt to hunt them down. Others will be deterred from gaining their legal rights of marriage because they would be condemned to the same future.

The law must not make details of these marriages public when the resulting threat to the lives of these people is imminent.

Gay case

In the first half of this year, in spite of copious public consultation, certain religious leaders won the right of employers with a ‘religious ethos’ to discriminate against or sack employees whom they know or suspect of being gay. The ambiguity of this legislation ensures a string of test cases, hiding many more unemployed and intimidated people. A partner’s legal rights must not be made an alternative to accepting discrimination at work or loss of employment.

There are many gay people from certain ethnic and religious minorities who live in daily fear of death, if they were to be outed as gay.

In Croydon four people have been murdered in the last two years for being gay, and another two local people were murdered but died outside Croydon.

On 18th September, the Attorney General announced that the penalties for hate crime would indeed be increased, but he made a specific exception for hate crime against gays.

As proposed the scheme would denies either civil partnership, or privacy, to those who should benefit from them. This does not in any way send ‘a strong message that homophobic behaviour is not acceptable’ (4.14). It is fatuous to suggest that prosecuting one’s murderer will compensate for one’s loss of privacy.

Clearly, the proposals are not taking account of the severity of the problem.

Transsexual case

Following the case of Goodwin and I v. UK, the Government proposed to recognise both the right of a transsexual person to keep their transsexual history private (their right to private life), and their right to be recognised legally in their acquired sex. The result is the Gender Recognition Bill. In it, the Government has used considerable ingenuity to accommodate transsexual people without revealing their transsexual history.

In the Bill, it is proposed that a married person who has changed gender will be required to annul their marriage before they gain full legal recognition in their acquired sex. But marriage and its annulment are public. And this presents a transsexual person with a choice. They must either face revealing their transsexual history thus losing their right to privacy, or sacrifice their right to full legal recognition in their acquired gender, which the case of Goodwin and I established is theirs by right under the European Convention. This would be to require the transsexual person to trade one set of rights for another, when the ECtHR found that they must be awarded both.

So the married person who has changed sex has a strong case to claim their right to be recognised legally in their acquired gender, as well the right to privacy in annulling their marriage.

If it is proposed that they will be able to convert their marriage to a civil partnership, then they have a case to claim privacy for the conversion. This entails privacy in ending a marriage and in beginning a civil partnership.

So the Government has reason to allow married transsexuals to keep their marital details private.

Grounds for Privacy

Less than one in a hundred would have such a case, so the cost and complexity of optional privacy would not be a significant issue. The grounds for privacy would have to be defined, and would exclude being in the public eye. There is already a structure for appeal, through the process of judicial review, and family courts can already hear cases in private. It is critical only to add that privacy must cover an application for privacy, even if it were turned down, and to permit the details of partnership or marriage to be released only after the death of both of the partners.

Safeguards

The consultation document requires further safeguards (4.16):

·                     Anyone who wanted to lodge and objection to the registration or marriage of a particular person or couple would have to lodge the objection with the local register office. This happens already. Any future electronic records or centralisation of records will make this more effective.

·                     The couple would still have a certificate as evidence of marriage or registration for those who wished to use it.

·                     Anyone seeking to authenticate the claim that a couple was registered or married would have to present a form, via the couple, giving the couple’s permission to access that information, and the number of the registration. There would have to be restrictions on what the information was used for. It could not be revealed if it were (for instance) likely to be used to determine an applicant’s sexuality in a job application. It would have to be possible for the executor of a will to discover whether a potential beneficiary was registered or married, as wills have sometimes been conditional upon the sexuality of the beneficiary or their marital status.

·                     There would be exemptions for certain statutory and private bodies to discover, for a specific purpose, if a particular person was registered. These would include police and insurance companies (who need to know whether they are insuring one person or two).

4.19  Scotland and N. Ireland

We understand that the Scottish Executive has recently stated that it would accept the status of civil partners registered in England and Wales. We welcome this and we hope that this removes the need for further rules or legislation.

We would like to see N. Ireland take a similar line.

We hope that both Scotland and N. Ireland will introduce parallel civil registration schemes.

4.21 Recognising partnership schemes in other countries

Agreements already exist and there is a legal framework already in place for dealing with these issues.

It seems that the UK is already bound to recognise the marriages of couples from other EU countries (see the quotation from the EU Parliament in General Comments 2), last bullet point), and may well be bound to accept the marriages of couples from other parts of the world.

We support the recognition of foreign marriages and partnerships.

However, if Parliament decides that a UK civil partnership should have fewer rights and duties than a marriage, then only similar (unequal) partnerships from other countries could be recognised as civil partnerships in this country.

5  Dissolution

The terms for dissolution should be spelled out clearly to couples before they decide to apply to register. Those who have already registered on one of the local authority schemes may well be taken aback at how hard it will be to separate if a civil partnership fails.

7  During the Relationship

The option of changing one’s name to reflect the new family relationships that a partnership creates is traditional and has never required legislation in heterosexual marriage. However there is a case for legislation to support this convention in the new relationship of civil partnerships. The consultation document does not suggest why this has been omitted. We suggest that the option should be provided for in legislation.

7.2  Immigration

We agree that immigration requirements should be the same for both civil partnerships and marriages.

There is a problem here in that same-sex partners will often not have been able to marry abroad, nor to enter into a comparable civil partnership. This is a cause of much unequal treatment, and future regulations need to make allowance for this.

We note that more equal immigration criteria have been in force in very recent years. What is needed is a definition of the terms of ‘husband’, ‘wife’, ‘spouse’ and so on, to apply to immigration so as to include same sex couples in an equivalent relationship or a UK civil partnership. See General Comments 2) and 3).

7.4  Elections

We agree that civil partners should be treated in the same way as married partners in respect of elections.

However, it is important to define the terms ‘spouse’ and ‘civil partner’ to be equivalent in law, in this context. See General Comments 3) above.

7.5  Evidence in Court

We approve of the principle that civil partners should not be required to give evidence against each other, in so far as this applies to married couples.

However, the way to do this is to define the terms ‘spouse’ and ‘civil partner’ to be equivalent. This point is developed under General Comments 3) above.

7.6 – 7.9  Financial decisions on behalf of others

These paragraphs are worded with a degree of ambiguity. We agree with the two summary proposals under 7.8 and 7.9 to ensure that civil partnership should have the same effect as marriage.

However, we are concerned because same-sex couples have to take much greater care of their affairs than mixed sex couples. Gay couples will more often make Living Wills and Enduring Powers of Attorney. Gay partnerships are different from mixed sex marriages in this respect. It is therefore very important to us that the detailed provision that couples have already made through the use of these documents should not be overridden.

Wills

This issue is particularly important where gay partners make provision for others, such as surviving parents. The registering of a partnership must not allow those elderly parents to lose the provision bequeathed to them.

The same problem applied to heterosexual marriages, and should, perhaps be addressed as another ‘loose end’ to tie up, both for marriage as well as for civil partnership.

7.8  Financial Decisions and Mental Incapacity

Legislation is not proposed in paragraphs 7.6 to 7.9. However the following points are important to tidy up anomalies that already exist.

We support the general principle that there should be no significant differences between married and civil partners in this respect. However it undermines the purpose and value of these relationships as described in the proposals, if both formal legal relationships and un-formalised relationships are equally disregarded.

This is an anomaly that should be corrected in forthcoming legislation. Married couples and civil partners should have rights and duties by default. However, they take on these rights and duties when they commit to these relationships. The wishes of unregistered and unmarried partners should be acted on at the discretion of professionals or a court. The proposed legislation is the place to tidy up loose ends like this.

Mixed sex couples have the option to marry, and some decide not to marry. It would similarly be wrong to apply the rights and duties of marriage to those who have consciously chosen to reject them.

It is not uncommon for long-term same-sex couples to live apart by choice. Their relationship is not necessarily less committed but is less interdependent. Among gay couples these relationships are seen to be more common and very enduring.

In this context it would clearly be wrong to implement the proposal:

·                     The Government proposes to ensure that all partners, whether married, registered or neither, will have the same rights under the proposals for new legislation

We refer to the need for an alternative form of legally protected partnership available to all. See General Comment 4).

7.10 and 11  Prison visiting

We support the general principle of these proposals.

7.17 Hospital visiting and medical treatment

We agree with paragraph 7.18 that registered civil partnership will help bring about a culture change in combating prejudice against gay people in these most difficult of circumstances. However, it is naive to pretend that enlightened guidelines will solve the problems. Roman Catholic believers and others have already been admonished most strongly to deprecate same sex civil partnerships, yet the Government is still committed to transferring the provision of many public services to these ‘faith groups’.

The only adequate response here is to define the use of ‘next of kin’ in this context to include civil partners, and to do so in legislation rather than guidelines or other documents. See General Comment 3).

7.19  Income-related Benefits

The consultation document states “Same-sex partners are currently treated as individuals” for purposes of income-related benefits.

Sadly the removal of these income-related benefits has occurred already. We have members and friends who have been prevented them from receiving job-seeker’s allowance and legal aid on account of their partner’s income. In the case of elderly heating allowance, the benefit was withdrawn on the basis that the two people concerned are living in the same home, rather than being a gay couple living together, but the effect is the same and discriminatory.

So we support the proposal in this paragraph, and point out that the case for doing so is already stronger than the writers realise.

7.22 Dependency Increases

We welcome this proposal, but repeat that it needs to be implemented not ‘in the same way’ as it is for married couples, but by defining civil partners in terms that apply to Adult Dependency Increases. See General Comments 3) above.

7.28  State Pensions continued

We support this proposal in terms of fairness. But we cannot see why the benefit should be delayed. If it were to be denied to married couples till 2010 this would be understandable, but this is not what is proposed. A more equitable way must be found. 

7.29 Dependency increases, from 2010

While we approve of the general principle, it seems self-evident that civil partners should be given the same rights as married partners when the legislation takes effect. Since they have been contributing on a fair basis, they should benefit on a fair basis. It is not acceptable that the funds that they have contributed should be disseminated among married contributors while leaving others with no such benefit at all.

Many of the partners who have campaigned for decades so that others should have this financial help are the elderly couples who most need it now, in their old age.

A very strong reason would be needed for delaying these rights until many of the beneficiaries will have died. No such justification is given.

8.5  Assessment of Liability for Child Support

This paragraph fails to take account of the variety of relationships in families. It needs to be modified. We refer to the submission made by Pink Parents, under the heading ‘Child Support’, which appears as the appendix to this document

8.8 and 8.9  Dissolution – Maintenance

We agree with the proposal, but we believe that courts should exercise the same powers and have the same discretion in respect of civil partnerships as they do in respect of marriage in this context. This would be more simply done if the relevant terms like ‘spouse’ used in the Matrimonial Causes Act were extended to include civil partners, as proposed in General Comments 2) and 3) above.

8.11  Property Division on Dissolution

We approve of the general sentiment of this paragraph, though it is extremely vague.

It displays the same shortcoming as other proposals: it recognises the needs of a couple’s children but not their parents. Where a couple is looking after one or more elderly parents, or otherwise providing for them or caring for them, the parents need to be protected too. We suggest that the legislation proposed might include the concept of a ‘dependant’ as being flexible enough to include all relevant parties.

9.3f  Registering the death of a partner

While we welcome the long-overdue inclusion of partners among those who can register a death, it undermines both marriage and civil partnership if the amendment in 9.2 includes the term ‘partner’. It should include ‘Civil Partner’, and for the time being should include those registered by local authority Registration schemes. To use the word ‘partner’ alone undermines the main spirit and thrust of the Government’s commitment to greater social stability through committed partnerships that are formalised and recognised by the state.

9.6  Inquests and Burial

We broadly support these proposals.

As elsewhere, this section proposes to recognise the partners as relatives in law, but in real life, this recognition does not recognise that family relationships do not stop with the partnership. New relationships of uncle, aunt, niece and nephew, are brought about when society recognises the partnership of a couple.

We suggest that those related through the civil partnership should have rights in relation burial, exhumation and cremation, and that this should be part of the definition of the term ‘relative’ in this context.

9.12 a)  Money purchase schemes

There is an anomaly in the current provision to include survivor benefits for married couples. It applies to money purchase schemes that are contracted out of State Second Pension.

For instance, if a male contributor to such a scheme marries young, splits up and lives and loves entirely separately for the rest of his days, when he dies his wife becomes eligible for pension benefits. This is clearly unjustified. Couples should divorce in a legally tidy manner, but often this does not happen.

The problem would be the same for civil partners who split up. It would be unjust to create a better way for civil partners, and leave the problem for married couples. It needs to be addressed equally. This is the time to tidy up loose ends like this.

9.12 b)  Private Pension Schemes

We broadly support the proposal.

However this approach glosses over the serious issue of the discretion of pension fund trustees.

1)      The discretion of trustees in many schemes falls well short of the need to provide pension payments to civil partners on a basis comparable with that deemed necessary for married couples.

2)      The scheme rules may not allow pension to be paid to surviving partners other than spouses.

3)      The trustees may use their discretion in favour of common-law spouses and against civil partners.

The end result of this proposal must be that schemes offer the payments they deem necessary for married partners to civil partners.

This has been such a big issue that it cannot have been overlooked by accident. Its solution is beyond our expertise. However, as suggested in General Comments 3, the solution appears to depend on defining terms like 'spouse’ and ‘married’ to civil partnership. (Less satisfactory alternatives are listed in General Comment 3.)

Once this approach has been decided upon, certain more detailed provisions might be needed.

9.13  Survivor Pensions – Public Service Pension Schemes

We believe there is a potential problem that needs to be addressed in the Public Service Pensions Scheme (PSPS). Like some other small schemes, the Premium Section of the PSPS provides partner pensions. But current members of the classic section of the PSPS (most members who joined that section before 1st October 2002) do not have a right to switch to the Premium Section if they remain in the same employment. So if they enter a civil partnership, the scheme will fail them.

Others are better able to suggest a solution, and we ask the Government to address this issue.

9.14  Survivor Pensions continued

The Government’s policy should be restated so that public sector employers should make available pensions for civil partners on a similar basis as they do for spouses. (It has been suggested that to reduce costs on schemes’ finance this might apply only for future accruals of partners’ pensions from the date the policy was implemented.)

As stated in General Comment 3, this needs to be effected by defining the term ‘spouses’ to include civil partners in this specific context.

9.15  Injury Benefits

We support the main thrust of this paragraph.

For the reasons given earlier, this proposal requires the extension of the term ‘spouse’ in law to include civil partners in this context. See General Comment 3) above.

9.18  Fatal Accidents Compensation

We support this proposal.

It is not clear how far this will extend to relatives of the injured party’s partner. Would the dependent children or elderly parent of the other partner be able to benefit (if such a claim were justified) on account of the other partner’s serious injury or death?

Gay couples have greater need of these relationships to be recognised in law. Gay couples are no less likely than their heterosexual siblings to be caring for elderly parents. It would help to resolve this issue if civil partners were recognised legally as ‘spouses’ or ‘next of kin’, or as ‘equivalent to’ spouse or next of kin, for legal purposes. We would urge that this should be specified in the proposed legislation as detailed in Section 2b above.

9.23 and 9.24  Intestacy

This proposal, like several others, appears to suggest that a civil partner will have the status of next-of-kin, but that family relationships somehow stop there. If there are further rights, benefits or duties, they should flow through one’s partner to the partner’s parents, children and other relatives.

Same sex partners care for their partner’s children and elderly parents, and become a part of the partner’s family in other ways. The parallel with heterosexual marriages should be preserved here.

Again, we commend the point in General Comments 2) and 3).

9.24 to 9.26  Intestacy and Inheritance

Again, we agree with these proposals, but they could be achieved more satisfactorily if the proposed legislation used the terms applicable in marriage (e.g. ‘husband’, ‘wife’ and ‘spouse’) for legal purposes to civil partners, rather than ‘giving them the same priority as spouses’.

This is covered in more detail in General Comments 3) above.

9.29  Tenancy Succession

We agree that civil partners should be given the same rights as married partners in relation to tenancies, including the right to succeed, and commend the points in our General Comments 2) and 3) above.

Annexe A – Regulatory Impact Assessment:

7.3 Impact on business

9 Impact on small businesses

10 Competition

The gloomy overtones of these paragraphs need to be balanced by the benefits to business and to small businesses in particular. We understand that the average heterosexual wedding now costs £15,000. Weddings contribute significantly to several businesses.

·                     The florists who sell buttonholes, bouquets and table decorations will benefit.

·                     The hotels, and other venues that provide space for the event and for the reception afterwards, the caterers and drink suppliers, will benefit in large financial sums.

·                     So will the companies who hire and sell formal dress.

·                     The jewellers who supply, fit and alter the rings live by this trade.

·                     Stationers who sell invitation cards, congratulations cards (a new market here), wedding cake boxes, streamers, confetti and photograph albums will benefit.

·                     Photographers, vendors and developers of photographic film and prints and of digital cameras trade on this market.

·                     Others who sell the gifts given to the happy couple, car hire companies, entertainers for the reception, the disco and the clown for the children will have new markets.

At a more serious level, couples think much more carefully about their partnerships when they formalise them.

·                     So financial advisers and solicitors will be consulted.

 

While two can live together more cheaply than one, it is also true that partners tend to live longer than single people.

But more importantly the celebrants and clergy who bring so much wisdom, experience and gravity to the couple’s lives together, are facing a loss of demand. In particular independent celebrants and organisations with years of experience in non-religious ceremonies are expecting an almost complete loss of demand if couples were required to register with a register office formality. Our suggestions above on paragraphs 4.1, 4.3 and 4.4 would help to overcome this.

 

Appendix

Part of the submission from Pink Parents on Paragraph 8.5

This is referred to under 8.5 above.

Child Support

“The Government proposes that registered partners should be assessed in the same way as spouses for the purposes of child support.

The Government proposes that there should be a duty on one partner to provide reasonable maintenance for the other and this duty should be enforceable through a magistrate’s court.

The Government proposes that the courts should, while respecting arrangements made under the Child Support Act, be able to make orders to provide reasonable maintenance for children who are treated as children of the family and this duty should be enforceable through a magistrate’s court.”

 

These are not reasonable proposals as they stand. They need to be modified to say that registered partners be liable for child maintenance only if they have first acquired parental responsibility by court order. Families are too complicated to dictate the relationships within them. There will be many step-families where a new partner is not going to take parental responsibility for an existing child who already has parents.

 

In addition, changes should be made to the guidelines issued by the Child Support Agency. The Agency issued guidelines saying that where a woman has 'made her own private arrangements for artificial insemination, the man concerned is the child's father and should be named.'  The Agency has not accepted the validity of any arrangements lesbian couples made with donors releasing the donors from parenting responsibilities. The Agency could be asked to change their guidelines for registered couples, exempting them from naming the donor.

 

If the Civil Partnership Registration goes through, unregistered same-sex couples would be treated in the same way as unmarried heterosexual couples. We would lose the only benefit we’ve had from discriminatory marriage laws, i.e. that a same-sex partner’s earnings are not considered when deciding benefits. We disagree with this proposal. It should only apply if the partner has freely chosen to take parental responsibility for the child or children and has applied to court for such.  The Government should not impose or assume the type of relationships in families.