Same sex divorce – the next equality battle

With the yin comes the yang – as Scotland announces it is following in the footsteps of England and Wales by approving legislation to introduce same-sex marriage, a gay couple in America is seeking the right to a divorce.

The couple, Lauren Beth Czekala-Chatham and Dana Ann Melancon from Mississippi, travelled out of state to San Francisco to get married in 2008. Now they want to force Mississippi – one of the America’s most conservative states – to recognise their same-sex marriage for the purpose of granting the divorce.

While they could get a divorce in California, Mississippi wouldn’t recognise the divorce and their marital property would remain in limbo.

Hopefully, this type of scenario won’t be a problem for same sex couples living in Great Britain now MEPs in Scotland have voted to approve the Marriage and Civil Partnership Bill. There are further hurdles to be overcome, however, before the legislation is passed. The Church of Scotland and Catholic Church remain opposed, although Ministers have insisted no part of the religious community would be forced to hold ceremonies for homosexual couples in churches.

If the bill is passed, the first gay and lesbian marriage ceremonies could take place in Scotland by the start of 2015. In England and Wales, same-sex couples will be able to get married from summer 2014.

Under the terms of the Marriage (Same Sex Couples) Bill, which was passed in July 2013, religious organisations will have to ‘opt in’ to offering weddings, with the Church of England and Church in Wales being banned in law from doing so, in order to prevent legal claims that they are bound to marry anyone who requests it.

It’s wonderful that the institution of marriage – and the full legal rights it offers – is to be extended to all sexualities, however more marriages will inevitably mean more divorces. And while divorce isn’t as cheerful a topic, it is equally important.

Figures released in October show that civil partnerships have begun to break up at a speed approaching the divorce rates of heterosexual couples. The number of partnerships legally dissolved in England and Wales increased by 20 per cent last year and has more than doubled in three years.

To petition for dissolution of a civil partnership you have to demonstrate one or more of the following:

Unreasonable behaviour – Your partner’s behaviour has caused the relationship to become irretrievably broken down. This could include physical or mental cruelty, financial abuse, being irresponsible or being unfaithful.
Desertion – Your partner has left you without your agreement and without a good reason.
You have lived apart for more than two years – Both parties agree to end the civil partnership.
You have lived apart for more than five years – This is usually enough to end a civil partnership, even if your partner disagrees.

So what are the legal differences between gay divorce and the dissolution of a civil partnership? The primary difference is that adultery will be grounds for divorce, but currently a civil partnership cannot be dissolved purely on the basis one person has been unfaithful.

Under the new law, couples in civil partnerships will be able to convert their relationships into marriages if they wish, although they are under no obligation to do so. Whether a couple wishes to be united in marriage or a civil partnership is completely their choice, but the introduction of marriage for gay and lesbian couples is a clear message that same-sex relationships are equally as valid as heterosexual ones. The new laws will confer all couples with exactly the same legal rights to protect the commitments they’ve made to their partners, as well as a predictable, regularised way of dealing with these relationships when they end.

Disclaimer

This blog is a general summary. The blog will not be a substitute for professional advice tailored to your specific circumstances.

Contact Jane McDonagh
jane.mcdonagh@smab.co.uk