Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Pride and Prejudice – Marriage in Modern Times

Marriage has become a more inclusive term over the past decade with the introduction of the Marriage (Same Sex Couples) Act 2013, which made gay and lesbian marriage possible. This has been praised by many as a victory for equality, something many will think about as London Pride approaches on 6th July. At first glance it could be seen as a step towards equality, but dig a little deeper and the truth is that same sex marriage simply isn’t the same. For example:-

  • It’s widely known that a marriage must be consummated; therefore non-consummation can lead to a marriage being annulled. In practice, this is rarely done (not least because of how difficult it can be to prove), however, same sex marriage cannot be annulled on this ground. This is because historically, consummation has been legally defined as ‘sexual intercourse between a man and a woman’, therefore applying this ground to same sex marriage would involve unravelling this historic definition.
  • Unlike an opposite sex marriage, a same sex marriage cannot be divorced on the grounds of adultery. In the same way consummation has a historic legal definition, so does adultery which once again involves sexual intercourse between a man and a woman. Therefore, while same sex marriages can be divorced, couples do not benefit from all the grounds available to an opposite sex couple.
  • Surviving spouses of a same sex marriage can only inherit pension rights from their late spouses based on contributions made since 2005; anything beyond this is at the employee’s discretion. In contrast, there is no such restriction or limitation on the pension rights that opposite sex couples can inherit upon their spouse’s death. It’s worth acknowledging that the Supreme Court recently decided this was incompatible with EU law. The government now agrees with this position, insofar as surviving spouses of a same sex marriage should be left with the same benefits as those of an opposite sex marriage.
  • The Church of England and the Church of Wales are legally banned from preforming religious same sex marriages while other faiths can opt in to do this. This differs from opposite sex marriage, where all religions are legally permitted to conduct religious marriage ceremonies and there is no necessity for any faith to first opt in.
  • The requirements in order to register premises to conduct same sex marriages are a lot more restrictive than for opposite sex marriages. For example, where premises are shared by several faiths, they must all give their permission in effect allowing at least one of them to veto against carrying out same sex marriages. As a result, opposite sex marriages are a lot more accessible than same sex marriages which can only take place if these stricter requirements are met.

Opposite sex marriage and same sex marriage are clearly not one and the same. There are reasons behind those differences listed above, however; do these explanations justify there being two different types of marriages based on gender alone? This question is an important one, but for now it is just as important for people to be aware that there are still some underlying key differences. While some people may go there whole lives without realising these differences, others will certainly come across them, whether it’s before their marriage when trying to secure a venue that is willing and able to conduct a religious same sex marriage, or, later in life when one spouse wants to rely on the other’s infidelity to bring the marriage to an end.

For further advice and information please contact Sahil Aggarwal on 0208 332 8675 or sahil.aggarwal@mooreblatch.com.


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