Marriage and Civil Partnership – Changes Coming. A Notary Muses.
If we look back a hundred years – so within living memory – it was quite clear what being married meant. There were two parties, one of them a man and the other a woman. The man was the Head of the House. The woman was legally subject to the control of the man. All money she might have earned was treated for tax purposes as money earned by him. The land and property the woman might have owned before she married, became the man’s on the marriage day.
So quite apart from the illegality of homosexuality in England at that time, the idea of two persons of the same sex being married to each other simply had no meaning. Marriage was about money and control, from a legal point of view.
By year 2000, all of the above had gone. Except that a marriage could still only take place between a man and a woman.
What a marriage actually was legally and indeed politically, however, had changed completely and today it seems to me to be – what? A public statement of commitment? A romantic ideal? A tax saving relationship? Something to do with religion?
Let’s just stay away from metaphysics and keep our eyes on the money.
Marriage is a tax saving relationship. Income tax marriage allowance, some pensions benefits on death of a spouse, the ability to share assets providing capital gains and thereby doubling the tax allowance, and huge Inheritance tax advantages – all available to a spouse or widow/er.
So in 2004 all of these tax advantages were made available to same-sex couples too. It had seemed to prevailing opinions, unfair that these very practical benefits should be available to parties to a marriage but unavailable to people who were totally committed to each other, but could not get married for reason of gender.
So civil partnerships for same sex relationships came into being.
That’s all fine then.
But things moved on. Public opinion and human rights rules persuaded the lawmakers that marriage should be available to everyone and since 2014 same-sex couples can marry.
OK that’s fine too.
But it has created an oddity. Now, same-sex couples choose to marry, or choose to become civil partners. But – An opposite sex couple can marry, or stay single, but they cannot become civil partners.
It might seem obvious to many that civil partnerships were intended to allow a form of marriage which did not offend too much those of more traditional views and sensibilities. That didn’t last long did it?
But surely, now that anyone can marry, there is really no remaining point to the whole civil partnerships thing? A legal creation which has outlived its need or usefulness?
Trouble is, not everyone who is a member of a civil partnership actually wanted to get married – and now they are quite happy as they are. And if civil partnership were to be abolished? Well it can’t happen retrospectively can it? And whilst possible, it might well be seen to be a retrograde step if a Government were to announce that after a future random date no further civil partnerships could be entered into.
So whether or not this is counter-intuitive, the plan announced now by Theresa May is not to abolish civil partnership but, quite the opposite, to extend them so that a couple who are mixed-sex can become civil partners.
Who will do this? That is a matter for speculation, a game we can all play. Perhaps, couples who are “anti-religious”? Anyone else?
Let’s have another look at those tax advantages.
I suspect it does happen, that men and women presently marry each other because they are close friends or maybe run a business together, even though they live in separate homes or even separate cities. But many others in that position would be put off by the social presumption that a marriage must be a sexual relationship.
And above all, remember in England that actual marriage, when entered into by opposite-sex partners, is voidable – can be annulled – on the grounds of “non-consummation”.
The other two arrangements – Civil partnerships between same sex couples and Marriage between same-sex couples – cannot be annulled for this reason. Whether or not the partners in these arrangements have sexual intercourse is of no concern to the law.
It seems to me unthinkable that the proposed future civil partnerships, between opposite sex couples, will require a sexual relationship.
Which if I am correct, opens the door to opposite-sex civil partnerships being entered into between a man and a woman who would not in a million years have sex with each other, but who have a close relationship whether emotional or financial, and who would like to be able to leave large sums of money to the survivor after first death, without having any tax to pay.
Maybe a widow and a widower who certainly don’t want to marry again, but who have found companionship, a mutual love of spending time together.
One last thought – Perhaps the people who might most benefit from being in a civil partnership and might be the keenest to enter into one for tax reasons, are still unable to do so.
Just as a brother and a sister cannot marry each other, so a brother and a brother or an uncle and a nephew– and a sister and a sister or an aunt and a niece – are excluded from same sex civil partnerships. I cannot believe that this exclusion will be removed from opposite sex [brother and sister, uncle niece etc.] civil partnerships either.
Let’s wait and see whether it happens. Seems to me the Government has more on its plate to worry about just at the moment.
Here’s a song for couples
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