This article is reproduced from the University of Oxford's Arts Blog.
The law on marriage and civil partnerships, for both opposite and same sex couples, has been made equal – but not completely symmetrical; that is, concerning the option of converting one form of legal union into another, according to research by John Haskey, Associate Fellow at Oxford’s Department of Social Policy and Intervention published in Family Law.
Both same sex and opposite sex couples can become civil partners or they can marry. Consequently there are four possible ‘conversions’ of one form of legal union into another, only one of which is currently permissible - same sex civil partnerships can be converted to same sex marriages. The other three ‘conversions’ are not legally possible at present: same sex and opposite sex couples cannot convert from a marriage to a civil partnership, and opposite sex couples cannot convert from a civil partnership to a marriage.
One benefit of allowing all four conversions would be that couples could periodically reassess the form of their legal union and convert it to the alternative kind if they judged it appropriate. Such a review and reassessment might well be beneficial to the health of the relationship
An argument against two of these unavailable conversions is that the couples concerned did have the choice between the two legal unions: for example, opposite sex couples who formed a civil partnership did have the opportunity of marrying; similarly same sex couples who had married, could have opted instead for a same sex civil partnership, as the latter were introduced before the former.
In contrast, however, opposite sex couples who married earlier did not have the opportunity to have a civil partnership and there is the possibility that such conversions might be legislated. Other considerations and arguments might be deployed in favour of legislating the remaining two conversions.
According to John Haskey, ‘One benefit of allowing all four conversions would be that couples could periodically reassess the form of their legal union and convert it to the alternative kind if they judged it appropriate. Such a review and reassessment might well be beneficial to the health of the relationship.
'Undoubtedly perceptions about the characteristics of civil partnerships and marriages differ, and these differences may well vary for different age groups, so that conversions may be thought to allow some flexibility - a potential benefit - in the form of legal union with its associated expectations.’
He adds, ‘Another benefit of allowable conversions is that if a partner or spouse has a gender change, they can still remain married or as a civil partner with no disruption to their civil partnership or marriage - the union just changes for example, from an opposite sex one to a same sex one.’
The article reveals, the vast majority of same sex couples have not opted to convert their civil partnerships to marriages. John Haskey writes that, after December 2005, when same sex civil partnerships were introduced, 13,000 couples formed civil partnerships in the following nine months of 2006. After the initial rush, the monthly numbers fell to less than 1,000 a month and a seasonal pattern quickly emerged. Up to the end of 2017, he estimates, some 63,000 same sex partnerships had been formed.
Same sex marriage was introduced in March 2014, and the option to convert a same sex civil partnership to a same sex marriage in December 2014. The article estimates that up to the end of 2017, 23% (14,000) of civil partners had opted for conversion to marriage.
An important element in the argument for having, and retaining, civil partnerships has been that they avoid what many see as the paternalistic aspects of marriage, the couple preferring, it is claimed, to be equal partners, rather than husband and wife with their traditional roles
According to John Haskey, ‘The fact that a large proportion of civil partners have not converted their partnership may well reflect their contentment with the new status. Alternatively, they may have been unaware of the facility to convert, or even (erroneously) considered themselves either married or ‘as if married’.’
He adds, ‘An important element in the argument for having, and retaining, civil partnerships has been that they avoid what many see as the paternalistic aspects of marriage, the couple preferring, it is claimed, to be equal partners, rather than husband and wife with their traditional roles. (Inevitably, though, one wonders whether, had same sex marriage been legislated early and first, there would have been any civil partnerships on the statute book at all.)’
John Haskey concludes, ‘Overall, there has been extraordinary progress over the last two decades, and much of the advance can be attributed to the adherence to the principles of equality and non-discrimination, which, no doubt, will also play an important part in future reform. Three new legally recognised relationships in the space of less than two decades contrasts with centuries of having only marriage is remarkable, and may signify a new spirit of progressivism.’
The full article can be read here: Perspectives on civil partnerships and marriages in England and Wales: aspects, attitudes and assessments (familylaw.co.uk)