Although the Civil Partnership Act is a step in the right direction, it does not go far enough. Mutual care and commitment, not sex, should be the basis of partnership rights.
The new same-sex Civil Partnership Act is a cause for celebration. It will remedy many of the injustices faced by same-sex couples. But it is also a big disappointment. It creates a two-tier system of relationship recognition and rights.
Gay partners remain banned from getting married and heterosexual couples are excluded from civil partnerships. The homophobia of marriage law is compounded by the heterophobia of civil partnerships. These twin discriminations reinforce and extend inequality. Since the gay community has always demanded equal rights, why should we now settle for discrimination?
Imagine the outcry if the government reserved marriage for white people and introduced a separate partnership register for black couples. It would rightly provoke accusations of racism and apartheid. The current marriage law and the new civil partnership register are a form of sexual apartheid. They enforce separate rules for heterosexuals and homosexuals, perpetuating discrimination on the grounds of sexual orientation. Marriage is the gold standard. Civil partnerships are marriage lite for queers. They are second best. No thanks.
Apologists for civil partnerships say they are, in effect, the same as marriage. In that case, why didn’t the government simply amend the marriage laws to include same-sex partners? A one line amendment would have been the simplest, easiest way to ensure legal rights for lesbian and gay couples.
The Marriage Act 1949 does not specify that marriage has to be between a man and a woman. This rule was introduced only in 1973, under the Matrimonial Causes Act. A short, simple Bill repealing the relevant section of the 1973 legislation would remove the sole legal impediment to same-sex marriage. It is a great pity the government lacked the courage to take this initiative to end the ban on same-sex marriage.
Given its patriarchal history, I am no fan of wedlock. But equally, I am no fan of discrimination. Although I don’t want to mimic straight couples, I also do not want to be told that rights available to heterosexuals are denied to me because I am gay. The ban on same-sex marriage is discrimination and it must go. I say this as someone who would never want to get married but who nevertheless defends the right of others to make that misguided choice.
As well as reinforcing discrimination, civil partnerships replicate one of the key flaws of marriage legislation. They privilege love over often equally enduring close, loyal friendships.
While love relationships are unique, it is also true that some life-long friends share levels of devotion and commitment similar to those of many husbands and wives.
Instead of proposing a Mark 2 version of marriage for same-sex couples, the government should have seized the opportunity to legislate an alternative legal framework to remedy the ethical and practical deficiencies of marriage law.
There are powerful arguments in favour of a broader, non-discriminatory, comprehensive, flexible system of partnership recognition and rights, covering gay and straight partners, and applying to all mutually caring relationships
From an ethical point of view, it is arguable that any two people who share a close, deep bond ought to be eligible for reciprocal legal recognition. Instead of restricting these rights to people in a sexual relationship, they should be extended to cover all relations based on mutual care and commitment.
Supportive, loyal and enduring relationships – whether between lovers or friends – are good for the people involved and have a wider social benefit. As well as enhancing an individual’s happiness and well-being, they strengthen a person’s ability to cope with adversity and diminish their dependence on the state. It is therefore in society’s interest to encourage and reward such relationships with legal validation and protection.
For these reasons, I have suggested a new legal framework – a Civil Commitment Pact. It would allow people to nominate as their next-of-kin and beneficiary any ‘significant other’ in their life. This could be a partner or lover, but it could also be a sister, carer, house-mate, favourite nephew or life-long best friend.
Many non-sexual friendships are just as sincere, loyal and enriching as relations between people in love. They, too, should have legal recognition.
There is no sound reason to restrict partnership rights to people in sexual relationships. That discriminates against friends who support each other, but who are not in a traditional love coupling.
Why shouldn’t two life-long best friends have legal rights similar to two lovers? The main substantive difference in the nature of their relationships is that the latter have sex and the former don’t. Why should sex be privileged over friendship?
With one in two marriages ending in divorce, and over a quarter of households comprising of single people, friends now play an important, if not major, role in many people’s lives and support networks. Surely it is wrong to discriminate against two friends who have a strong commitment to care for each other, just because they are not married and do not have sex?
While the government claims this broader model of relationship recognition is not feasible, the Australian state of Tasmania has already set a precedent with its Relationships Act 2003. This pioneering legislation offers a ready-made legislative template, which could be adapted relatively easily by our own parliament. Successful and popular, it grants legal rights to all relationships of mutual devotion and support; including gay couples, carers and unmarried heterosexual partners. The philosophical basis of the Tasmanian law is that close, caring relationships – whether conjugal or non-conjugal – are good for the people involved and are socially beneficial. It works Down Under, why not here?
As well as allowing people to nominate any significant person in their life, perhaps a new partnership framework could also offer flexibility and choice with regard to rights and responsibilities.
Some rights and responsibilities, such as those concerning tax contributions and social security benefits, would have to be linked together to prevent people claiming the benefits of relationship registration and avoiding the costs. Otherwise, there is no reason why two people should not be free to construct their own unique partnership agreement.
Within our society we see a huge variety of relationships and lifestyles. There are people who live together, and those who live apart. Some share their finances; others maintain financial independence. The law should reflect and support these diverse relationship choices and realities. The one-size-fits-all model of relationship recognition – exemplified by marriage – is no longer appropriate.
Any new partnership legislation should allow people to select from a menu of rights and responsibilities. This flexibility would enable them to devise a tailor-made partnership agreement suited to their own particular needs.
Some people may, for example, want to designate another person as their next-of-kin, but not wish to confer on that person other rights or responsibilities. The law should let them make that choice.
Unfortunately, marriage and same-sex civil partnerships don’t give people these options. It is all or nothing.
In the case of couples in a love relationship, permitting them to choose from a menu of rights and responsibilities has an additional virtue. It would require them to sit down together and negotiate their obligations towards each other on each specific issue, such as property inheritance and the right to sign a partner’s death certificate and organise their funeral.
This point-by-point negotiation would force partners to examine their relationship more closely and to think through in greater detail the implications of entering a partnership agreement. It might lead to a sounder, more enduring commitment.
With marriage and civil partnerships, however, there is no obligation on partners to discuss the detail of their mutual rights and responsibilities. They simply sign a certificate, without any need to negotiate the particulars.
A ‘pick and mix’ system giving rights to both love partners non-sexual close friends offers a democratic, flexible alternative to marriage and civil partnerships. It would benefit everyone without discrimination.
Published in the Oxford Forum, Issue 4, Summer 2006