News and Insights
28 September 2016
Since December 2005, gay couples in the UK have had the right to enter into what is called a civil partnership.
This is not the same as marriage but does give the couple legal recognition of their relationship. So, for example, if the couple split up and there is a dispute about financial matters, then the court can be asked to resolve it. In the case of one partner dying, then rights of succession are given to the other partner.
The UK introduced this change in the law long after many other countries. As long ago as 1989 the issue was tackled in Denmark, for example. As is the case in many areas of social legislation, Jersey lags behind even the UK in recognising the importance of law keeping pace with changing social attitudes and human rights issues. However, change is now hopefully afoot in that the States have just issued a consultation paper on civil partnerships.
The change in the law in the UK to allow for gay couples to have a civil partnership was clearly an extremely important step, as for the first time legal rights are given to those couples. The numbers of same-sex couples entering into this legal arrangement are not insignificant as it is estimated that in the UK by 2010 between 5,500 and 11,000 will have gone through the civil ceremony and have gained legal rights as a result. A similar change in the law in Jersey is long overdue and welcomed. In 2008, there is absolutely no reason why a gay couple in a loving and supportive relationship should not have the same protection under the law as heterosexual couples that get married.
A question does arise in the consultation paper as to whether or not the right to marry should be extended to same-sex couples. This was a concept that was dismissed in the UK and indeed in several other Western societies. There should probably be a similar debate in Jersey regarding this, but this would likely be a step too far. A powerful argument against this would in any event be that because family law in Jersey closely follows that in England and Wales and, because so many residents here have ties with the UK, it is probably important for any change in the law to follow a similar civil partnership route. From the point of view of the church in the Island, it is probably also important to recognise that its view may well be that marriage between same-sex couples would be a difficult step to take theologically.
The debate also needs to be extended to heterosexual couples who are not married. At the time that civil partnerships were being debated in the UK, there was much concern that same-sex couples were getting rights that unmarried heterosexual couples do not have.
It is perhaps important to consider how many unmarried heterosexual couples are without the rights of married couples. No statistics are available in the Island, but the Office for National Statistics in the UK published figures in October 2007 that show that a third of today’s teenagers are destined to cohabit rather than marry compared to one in ten of their grandparents. By 2014, married couples could account for less than one half of British families. There is no reason to suggest that the figures in Jersey are any less startling. Under our current law these couples have no legal rights in respect to property, maintenance for the other or division of their other assets when they split up. Nor are they protected when either of them dies. This means that these families, often with children, are in a precarious legal position when things go wrong and they most need the protection of the law. We already know from the statistics published in the UK last October, that children whose parents are not married get worse results at school, leave education earlier and have a higher risk of developing serious illness. Society may be compounding the problems by adding to these families the insecurity of their lack of legal rights. Here in Jersey, of course, there is an argument that such couples are in an even more precarious position because of our housing law.
In the UK, the Law Commission has published a report on the financial consequences of relationship breakdown between heterosexual couples that are not married. The UK Government is considering this report and legal changes may well follow in the future. The research carried out indicates that a majority of cohabitants believe in the ‘common law marriage myth’: the idea that unmarried couples who are living together are, after a certain length of time, treated for all purposes by the law as if they were married. This belief is false and certainly experience in Jersey shows that the myth of the common law marriage is just as strong in the Island.
In this area, the recent consultation paper published by the States recognises the debate and one of the options for consideration is whether civil partnerships could be entered into by both same-sex and heterosexual couples. For once, in the area of social legislation, it appears that the States are not lagging years behind the UK and most of the rest of Europe. The debate is an incredibly important one for the Island to have. It offers an opportunity for our law to be ahead of the UK by granting a package of rights to all couples in the Island. Of course, there is a perfectly legitimate argument that will undoubtedly form part of the debate that says that such changes for heterosexual couples will undermine the institution of marriage. There is the argument that civil partnership for gay couples is important because they, unlike heterosexual couples, do not have the right to get married and therefore their position should not be treated by a one size fits all law. This again is an argument that is quite probably going to be aired in the months ahead. Perhaps, however, it is important to remember those statistics that show the huge growth in cohabitation in our society. This has happened even though those couples currently have no defined legal rights. There is an argument that the law cannot radically influence how a society changes and develops and therefore the law should be ensuring that everyone is given a basic package of rights whatever there sexuality or their married or unmarried state.
The States are to be congratulated on bringing to the forefront of the public agenda the need for change. Hopefully the debate that follows will be a measured one and will produce results that help the Island to show that it recognises social change and is prepared to tackle difficult and controversial issues head on.