Human Rights and Domestic Partnerships: Have We Learned Anything?

08 MAR 2007

Penny Booth, Reader in Law, and Peter Burke, Staffordshire University Law School. 'Marriage is our society's fundamental institution for recognising the couple relationship, and access to this institution is an equal rights issue'. This was one of the submissions in Wilkinson v Kitzinger and Her Majestys Attorney-General (The Lord Chancellor Intervening) [2006] EWHC 2022 (Fam). However, it would seem that the common law definition of marriage, the voluntary union for life of a man and a woman, to the exclusion of others, is deeply embedded into our religious and social culture. The Matrimonial Causes Act 1973 affirmed this in s 11(c) because the parties to a marriage must be respectively male and female. Article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 states that men and women have a right to marry and found a family.

There is a growing tendency for European courts to give legal recognition to same sex relationships. This article considers whether access to the long-established institution of marriage - as opposed to the newly constructed civil partnership - for same sex couples is a rights issue, and looks at some of the cases in which the concept of marriage has been in question. Going further, what protection should the law offer to individuals who choose to share their lives but without the protection of marriage or civil partnership? Should the legal definition of marriage change? Or are our social attitudes and hence our legislative bodies entrenched in the tradition of marriage as it is currently defined? For the full article see March [2007] Fam Law.

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