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Family Law

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18 FEB 2011

Penny Booth: I just can't see the wood for the trees this week

Penny BoothI do see that the government will look at marriage for same sex couples. That will cause something of a stir. When civil partnerships were legislated upon in 2004 the argument to get the legislation through Parliament (one suspects the Lords in particular) was that it wasn't marriage - the latter was retained as a special relationship for heterosexual couples in the context of the religious and cultural forces here and the traditional approach taken in this country - and in many others besides. It either is ‘special', or it's not.        

If the latter, please stop placing my own marriage in an obligated position viz-a-vis ‘family values' and supporting the members of said family. Is it a purely personal relationship, or is it a relationship of inestimable worth to the state and therefore of ‘public property'?  Both positions have implications - socially and legally - and could affect not only how we look at marriage and families and their composition, but how we use the law in respect of them.   

One suspects that civil partnerships would have had a far harder journey through the legislative process without the argument that it was not the same as marriage. I, for one, doubt that it would have been approved at that point otherwise than that differences were emphasised. Instead we ended up with a bit of a dog's breakfast (with apologies to my own, who likes his breakfast anywhere so long as it ends up in his mouth and to his stomach) and plenty of argument following about the recognised rights (Wilkinson v Kitzinger) and equality of legal relationships. Never mind what you call it, it is the rights that matter - that is what got us through the little local difficulty of same sex relationship recognition. Now we've matured, moved on in recognition of different types of relationships, and perhaps it is time to simplify the matter?

Why not abolish section 11 (c) of the Matrimonial Causes Act 1973 requiring the parties to a marriage being respectively male and female, save the arguments on the details through Parliament and in the media, and stop wasting time and paper? Let everyone get married in a civil ceremony - none of this silly signing a ‘partnership' because we should make a marriage worth the ‘ceremony' - and have state recognition of a legal union with some ‘oomph' behind it? It is important, and we need to emphasise that for the good of all (yes, you've guessed it, I am a staunch supporter of the importance of legally recognised relationships because if they go wrong the results can be catastrophic and the fallout horrendous). We could save the religious ceremony (the ‘wedding'?) for those who want that element of religion in their lives. The religious element could be voluntary, the state element of marriage compulsory for the legal recognition of a marital union.

How will what we do about cohabitation and the law be affected by this? At this stage, one could say ‘not at all' as I think that whilst we need to recognise that individuals will get themselves into relationships that damage their own lives and financial positions, the extent to which we protect people from themselves is a hard decision about interfering in private lives: yes we should, but it is the extent of state protection for the ‘hopelessly in love' that needs debate and how far we go in that depends on how much heartache and financial cost we might save by doing so.

Lots of other family law issues this week, but ‘marriage' has got to be the vital one right now - if we don't get it right, we will end up with less of  a ‘dog's breakfast' and more of a ‘train wreck'.

Penny sets the questions for Family Law journalCPD, a new way to gain CPD points by answering multiple choice questions based on the content of the journal.

She is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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