The 29th March 2014 was a historic day for civil rights campaigners as The Marriage (Same Sex Couples) Act came into force allowing the first gay marriages to take place.

The act, which applies to England and Wales allows; 

• same sex couples to marry in civil ceremonies;
• same sex couples to marry in religious ceremonies, where the religious organisation has ‘opted in’ to conduct such ceremonies and the minister of religion agrees;
• protection to those religious organisations and their representatives who do not wish to conduct marriages of same sex couples from successful legal challenge;
• civil partners to convert their partnership to a marriage, if they wish; and
• married individuals to change their legal gender without having to end their marriage.
• Conversion of civil partnerships to marriage 

Civil partners can now convert their civil partnership into a marriage. The regulations which govern this process are yet to be made however it is likely that certain information and declarations will be required in addition to the payment of a fee. Once converted, the date of marriage would be the date on which the civil partnership was entered. Civil partnerships entered into outside of England and Wales will not be capable of being converted to a marriage.

There is no automatic conversion into a marriage, only an option to convert and therefore those who have entered into a civil partnership remain civil partners rather than spouses.

Religious Ceremonies

The new act allows same sex couples to marry in religious ceremonies provided that the religious body has ‘opted in’ to conduct such ceremonies and the minister of religion agrees. The Marriage (Same Sex Couples) Act 2013 respects the position of the Church of England and the Church of Wales who have indicated that they currently do not wish to permit same sex marriages.

Effect on divorce

In England and Wales there is only one ground for divorce and this is that the marriage has irretrievably broken down. Section 1 of the Matrimonial Causes Act 1973 sets out the facts which can be used to prove this ground and are: 

• adultery;
• unreasonable behaviour;
• desertion;
• two years’ separation with both people’s consent; or
• five years’ separation without both people’s consent. 

The Marriage (Same Sex Couples) Act 2013 has added a new section 1(6) to the Matrimonial Causes Act 1973 which maintains the definition of adultery and confirms that adultery can only be committed between people of the opposite sex. Sexual conduct with a person of the same sex is not adultery. This therefore means that if a man married to a man has an affair with another man then the ground of adultery cannot be used. Instead the inappropriate associations with another man would have to be cited as an example under the fact of unreasonable behaviour.

Annulment

With opposite sex marriages the parties are able to annul the marriage on the basis of non-consummation. Unfortunately this does not extend to same sex marriages and instead the parties will have to wait one year after the date of the marriage to apply for a divorce. If non-consummation has occurred within a same sex marriage then this can be cited as an example under the fact of unreasonable behaviour.

Transgender couples

Prior to this act coming in to force a marriage would become voidable if one party legally changed gender and obtained an interim gender recognition certificate. The marriage then had to be annulled before a full gender recognition certificate was issued. The Marriage (Same Sex Couples) Act 2013 now allows for a marriage to continue after the issue of a full gender recognition certificate provided that both parties consent.

This does not apply to civil partnerships. Civil partnerships must first be converted into a marriage for this to apply.

For more advice on same sex marriages or civil partnerships, please contact Susan Davies.