Difference between revisions of "Marriage (Same-Sex Couples) Act 2013"

Revision as of 07:23, 18 July 2013

The Marriage (Same-Sex Couples) Act 2013 is an Act of Parliament introducing marriage between same-sex couples in England and Wales. It became law on 17 July 2013. For details of its progress through Parliament, see Marriage_equality#Marriage_(Same_Sex_Couples)_Bill.

Summary of the Act

Part 1: Marriage of Same Sex Couples in England and Wales

Section 1 provides that "Marriage of same sex couples is lawful" but that a marriage between a same sex couple may only be solemnised in accordance with:

• Part 3 of the Marriage Act 1949 (which allows civil marriage ceremonies in register offices or on approved premises such as hotels; and, if the relevant religious organisation has opted in to marry same sex couples, marriages in religious buildings (except those of the Church of England or Church in Wales), or according to the usages of the Jews or Quakers, and for certain marriages for detained or house-bound persons);
• Part 5 of the Marriage Act 1949 (marriages in naval, military, and air force chapels);
• The Marriage (Registrar General’s Licence) Act 1970 ("deathbed" marriages outside registered premises); and
• An Order in Council made under Part 1 or 3 of Schedule 6 of the Act (marriages overseas in the presence of a consular officer or marriages overseas of armed forces personnel).

Section 1 also provides that the Act does not affect the consistency of the Canon of the Church of England with section 3 of the Submission of the Clergy Act 1533 (which provides that no Canons shall be contrary to the Royal Prerogative or the customs, laws or statutes of the United Kingdom), and that it neither imposes any duty on a member of the clergy to solemnise same sex marriages, nor provides for any right of persons to have same sex marriages solemnised by members of the clergy.

Section 2 provides a number of protections for religious organisations:

• No person can be compelled to opt in to any involvement in same sex marriages, or from opting out of any involvement in same sex marriages (clause 2 also defines what are opt in and opt-out activities);
• No person can be compelled to conduct a same sex marriage; be present at, carry out, or otherwise participate in, a same sex marriage; or consent to a relevant marriage being conducted;
• The Equality Act 2010 is be amended to prevent discrimination claims under the Act from being brought against people who refuse to do any of the activities referred to above.

Section 3 amends section 26 of the Marriage Act 1949 to authorise civil same sex marriages and without any opting in necessary. The revised section 26 authorises:

• religious marriages for opposite sex couples only in registered buildings;
• civil marriages for all couples in a register office;
• civil marriages for all couples in, for example, a hotel or other approved premises;
• religious marriages for opposite sex couples by the Quakers or the Jewish religion;
• marriages opposite sex couples, one of whom is house-bound or detained;
• civil marriages for all couples, one of whom is house-bound or detained;
• marriages for opposite sex couples in a church or chapel of the Church of England or the Church in Wales.

Section 4 and Schedule 1 insert a new section 26A into the Marriage Act 1949 which allows religious organisations to opt in to performing same sex marriages. The religious organisation has to apply to the Registrar General for a building certified as a place of religious worship to be registered as authorised to solemnise same sex marriage. If the necessary conditions are met, the Registrar General will then have to register the building. The Church of England and the Church in Wales are not, however, allowed to opt in under this provision, although the Church in Wales would be able to conduct same sex marriages under clause 8.

Section 5 inserts a new section 26B to the Marriage Act 1949 which allows for religious same sex marriages to take place without any opt in necessary in certain circumstances:

• Marriages in accordance with the religious practices of Quakers, as long as the recording clerk of the Society of Friends in London has consented to marriages of same sex couples;
• Marriages in Jewish religious ceremony, as long as the relevant governing authority has consented to marriages of same sex couples (the relevant governing authority would be the person or persons designated as such by the secretary of the synagogue); and
• Marriages for all religions, except the Church of England and Church in Wales, where one or both of the same sex couples is house-bound or detained, and the relevant governing authority has given consent to same sex marriages.

Section 6 amends Part 5 of the Marriage Act 1949 to permit same sex marriages in naval, military and air force chapels. Under Part 5, a marriage may take place in such a chapel which has been licensed for the solemnisation of marriages according to the rites of the Church of England or the Church in Wales, or registered for the solemnisation of other marriages. Section 6 also amends Part 5 allow for the registration of military chapels for the solemnisation of marriages of same sex couples, with an exception for the Church of England and the Church in Wales.

Section 7 amends section 1 of the Marriage (Registrar General’s Licence) Act 1970 so that the Registrar General can only authorise a religious marriage of a same sex couple if the relevant governing authority has consented to marriages of same sex couples. Section 1 does not apply to the Church of England or the Church in Wales.

Section 8 sets out the procedure by which the Church in Wales may opt in to performing same sex marriages. The Lord Chancellor would have to be satisfied that the Governing Body of the Church in Wales had resolved that the law should be changed to allow for the marriage of same sex couples according to the rites of the Church in Wales. He must then make an order permitting the Church in Wales to perform same sex marriages.

Section 9 permits couples in a civil partnership to convert them into marriages.

Section 10 and Schedule 2 provide that same sex marriages entered into outside of England and Wales are recognised as marriages in England and Wales. Schedule 2 also makes specific provisions for Scotland and Northern Ireland. In relation to Scotland. where the government is in the process of introducing same sex marriage as well, it allows for same sex marriages conducted in England and Wales to be recognised as civil partnerships in Scotland. Such a power might be exercised if either same sex marriage was legalised in England and Wales before Scotland or if Scotland ultimately did not legalise same sex marriage. In relation to Northern Ireland, it simply allows for same sex marriages conducted in England and Wales to be recognised as civil partnerships in Northern Ireland.

Section 11 and Schedules 3 and 4 provide that all references to marriage in the law of England and Wales apply to same sex marriages as well as opposite sex couples. Schedule 3 provides further detail on the interpretation of legislation:

• In all legislation, references to marriage include same sex marriages;
• In all legislation, references to persons who are not married but who live together as a married couple include same sex couples who are not married but who live together as a married couple;
• In all future legislation, the terms "husband", "wife", "widow" and "widower" will include persons in same sex marriage or same sex marriages ended by the death of one of the couple.

Schedule 4 makes a number of further provisions as a result of the introduction of same sex marriages:

• In private legal instruments made before the introduction of same sex marriages, reference to marriage will be interpreted as only referring to opposite sex marriages;
• The common law presumption that a child born to a woman during her marriage is also the child of her husband (often referred to as “the presumption of legitimacy”) does not apply in relation to same sex marriages (i.e. where two women are married to each other and one of them gives birth to a child, the other party will not be presumed to be the parent of that child by virtue of the common law presumption);
• In divorce proceedings, adultery will only include sexual conduct between two persons of the opposite sex (although such conduct may still be deemed 'unreasonable conduct' or addressed by other laws than adultery law);
• Non-consummation of the marriage will not be grounds for annulment for same sex couples;
• The Domicile and Matrimonial Proceedings Act 1973 is amended so that same sex couples who have become habitually resident or domiciled in another country which does not recognise same sex marriage, and so who are unable to divorce or obtain other matrimonial order in the country which would normally have jurisdiction, will be able have their case heard in the courts in England and Wales;
• Legislation on state pensions is amended; and
• Legislation on occupational pensions and survivor benefits is amended.

Part 2: Other Provisions Relating to Marriage and Civil Partnership

Section 12 and Schedule 5 amend the Gender Recognition Act 2004 to enable existing marriages registered in England and Wales or outside the UK to continue where one or both parties change their legal gender and both parties wish to remain married. It also amends the Act to enable a civil partnership to continue where both parties change their gender simultaneously and wish to remain in their civil partnership.

Section 13 and Schedule 6 repeal the Foreign Marriage Act 1892 in England, Wales, and Scotland and provides for a power for Her Majesty by Order in Council to legislate so that the arrangements for marriage (including marriage of same sex couples) in overseas consulates and the issuing of certificates of no impediment are aligned with the existing arrangements for civil partnership registration in overseas consulates. Schedule 6 also provides for a very similar power for Her Majesty by Order in Council to legislate to enable service personnel and accompanying civilians (including same sex couples) to marry overseas.

Section 14 provides that the government must arrange for a review of whether belief-based organisations should make secondary legislation permitting belief-based organisations (such as humanists) to solemnise marriages and for a report on the outcome of the review to be produced and published before 1 January 2015.

Section 15 provides that the government must arrange for a review of the operation and future of the Civil Partnership Act 2004 in England and Wales to be carried out, and for a report on the outcome of the review to be produced and published.

Section 16 provides that the government must arrange for a review of certain matters relating to occupational pension schemes to be carried out, ad for a report on the outcome of the review to be produced and published before 1 July 2014. Following the review, the government may make secondary legislation for the purpose of eliminating or reducing relevant differences in survivor benefits.

Part 3: Final Provisions

Section 17 and Schedule 7 make various transitional and consequential provisions. Part 1 of Schedule 7 deals with transitional arrangements in relation to “approved premises”. These are premises (such as hotels) which have been approved by local authorities as venues for civil marriages and civil partnerships. Part 1 provides that any premises in the process of applying to be approved, or already approved as a venue for marriages of opposite sex couples will automatically be approved as a venue for marriages of same sex couples. Any future applications for, and grants of, approval of premises, will be for both same sex and opposite sex civil marriage. Part 2 of Schedule 7 makes amendments to a number of pieces of legislation in consequence of the introduction of same sex marriage, notably the Marriage Act 1949, the Marriage (Registrar General’s Licence) Act 1970, the Matrimonial Causes Act 1973, the Public Order Act 1986, the Social Security Contributions and Benefits Act 1992, the Pension Schemes Act 1993, the Civil Partnership Act 2004, the Human Fertilisation and Embryology Act 2008, and the Equality Act 2010.

Sections 18 to 21 deal with Orders and Regulations made under the Act, interpretations of terms used in the Act, the territorial extent of the Act, its Short Title, and its commencement.