tag:theconversation.com,2011:/us/topics/marriage-law-7361/articlesMarriage law – The Conversation2024-01-31T15:25:55Ztag:theconversation.com,2011:article/2176952024-01-31T15:25:55Z2024-01-31T15:25:55ZSouth African marriage ruling is a win for divorcees and surviving spouses: it guides the sharing of their assets<p>South Africa’s Constitutional Court has fundamentally changed the country’s marriage law, making it fairer to people who are married “out of community of property” when their marriages end. In these marriages, the estates of spouses are kept separate. They do not combine what they own into a joint estate. </p>
<p>The change applies to people who got married after 1 November 1984 when their marriages end in divorce; or who got married before or after 1 November 1984 and whose marriages end in death. </p>
<p>The apex court’s judgment of 10 October 2023, in the case of <a href="https://www.saflii.org/za/cases/ZACC/2023/32.html">EB v ER</a>, will benefit spouses, mainly wives, who find themselves in financially vulnerable positions when their marriages out of community of property without accrual end in divorce or death. This includes stay-at-home mothers, who take care of the family home or raise the children full time. Their non-financial contributions to the marriage, including unpaid labour in the home, are now valued as much as any financial contributions to the marriage.</p>
<p>Before 1 November 1984, there were only two legally recognised matrimonial property regimes applicable to marriages in South Africa. They were marriages in community of property and out of community of property. </p>
<p><a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">Marriages in community of property</a> are those in which the estates of both spouses are combined. When the marriage ends through divorce or death, the parties each have a 50% claim against the joint estate.</p>
<p>In the case of the <a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">out of community of property regime</a>, the estates of the spouses are at all times kept separate. Neither spouse has a claim against the other spouse’s estate even if they contribute to the maintenance or growth of the other’s estate.</p>
<h2>The change</h2>
<p>On 1 November 1984, the <a href="https://www.justice.gov.za/legislation/acts/1984-088.pdf">Matrimonial Property Act 88 of 1984</a> entered into force. It introduced a third matrimonial property regime: the accrual system. </p>
<p>The accrual system allows spouses who are married out of community of property to share in the growth of each other’s estates while still maintaining their separate estates.</p>
<p>Both spouses retain separate estates when they enter the marriage and during the marriage. At the end of the marriage through divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the bigger accrual. The claim is for an amount equal to half of the difference between the accrual of the respective estates of the spouses. </p>
<p>For example, a wife and husband each enter the marriage with R1,000. At the time that they are married, both spouses are working. During the marriage, they decide that the wife should stay at home and take care of the house and children while the husband will continue working and be the breadwinner of the family. </p>
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<p>Suppose that at the end of the marriage, the wife’s estate is valued as R3,000 and the husband’s estate is valued as R10,000. The accrual in the wife’s estate is R2,000. The accrual in the husband’s estate is R9,000. Half the difference between the accrual of the spouses’ estates is R3,500 (R9,000 minus R2,000 equals R7,000, divided by two equals R3,500.) Since the wife’s accrual is smaller than her husband’s accrual, she has a claim of R3,500 against her husband’s estate.</p>
<p>The above crude example illustrates that even though it may not have been intended, the out of community of property with accrual regime recognises that even though parties retain separate estates during the marriage, they may contribute indirectly to the maintenance or growth of each other’s estates, like the wife did through her unpaid labour in the home.</p>
<h2>The judgment</h2>
<p>When the accrual regime was created, section 7(3) of the 1979 <a href="https://www.justice.gov.za/legislation/acts/1979-070.pdf">Divorce Act</a> was amended to allow spouses who were married out of community of property before 1 November 1984 (who therefore did not have the option of accrual), and who were undergoing a divorce, to apply to a divorce court for a redistribution order. </p>
<p>Through a redistribution order, a court can transfer the assets of one spouse to the other spouse if it is just and equitable to do so. This applies in instances where one spouse contributes directly or indirectly to the maintenance or growth of the other spouse’s estate including through the rendering of services. </p>
<p>In its judgment of 10 October 2023, the Constitutional Court found section 7(3) of the <a href="https://www.justice.gov.za/legislation/acts/1979-070.pdf">Divorce Act</a>, among others, to be unconstitutional and invalid to the extent that it did not include a) spouses who were married out of community of property without accrual after 1 November 1984 if the marriages were dissolved through divorce, and b) spouses who were married out of community of property without accrual before or after 1 November 1984 whose marriages ended through death. </p>
<p>These parties could not claim a redistribution order if they contributed to the maintenance or growth of their spouse’s estate.</p>
<h2>Significance of the judgment</h2>
<p>The court’s judgment will provide much needed financial relief to spouses whose marriages out of community of property without accrual end regardless of when the parties were married or how the marriage ended. </p>
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<p>The judgment will also benefit spouses in Muslim marriages. These were legally recognised when the Constitutional Court, in a <a href="https://www.saflii.org/za/cases/ZACC/2022/23.html">2022 case</a>, Women’s Legal Centre Trust v President of the Republic of South Africa, declared that the common law definition of marriage and section 7(3) of the Divorce Act, among others, were unconstitutional to the extent that they did not include Muslim marriages. Now, spouses in Muslim marriages that are out of community of property without accrual, which dissolve through divorce or death, may apply to court for a redistribution order to transfer the assets from one spouse’s estate to the other.</p>
<h2>Next steps</h2>
<p>The advisory committee of the South African Law Reform Commission Project 100E on the Review of Aspects of <a href="https://www.justice.gov.za/salrc/dpapers/dp160-prj100E-ReviewMatrimonialPropertyLaw.pdf">Matrimonial Property Law</a> is reviewing existing laws that deal with matrimonial property regimes.</p>
<p>In light of the Constitutional Court judgments in the Muslim marriages’ and accrual cases, the advisory committee could most likely recommend amendments to, among others, section 7(3) of the Divorce Act to enable all spouses married out of community of property without accrual to apply to court for a redistribution order when their marriages end in divorce or death. </p>
<p>In its <a href="https://www.justice.gov.za/salrc/dpapers/dp160-prj100E-ReviewMatrimonialPropertyLaw.pdf">discussion paper 160</a>, the commission recommends that a court should retain discretion to ensure a just and equitable result when granting a redistribution order.</p><img src="https://counter.theconversation.com/content/217695/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Waheeda Amien is a Professor of Law at the University of Cape Town. She specialises in Legal Pluralism, Religious Family Laws, Freedom of Religion, and Gender Equality. Prof. Amien is also a member of the Advisory Committee of the South African Law Reform Commission Project 100E on the Review of Aspects of Matrimonial Property Law. She writes in her personal capacity. The views expressed in this article are not necessarily those of the University of Cape Town or the South African Law Reform Commission.</span></em></p>The judgment will also benefit spouses in Muslim marriages, which were legally recognised in a 2022 Constitutional Court judgment.Waheeda Amien, Professor of Legal Pluralism, Religious Family Laws, and Human Rights, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1875092022-08-02T12:59:43Z2022-08-02T12:59:43ZCongress is considering making same-sex marriage federal law – a political scientist explains how this issue became less polarized over time<figure><img src="https://images.theconversation.com/files/476974/original/file-20220801-24-y51nxw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A same-sex marriage supporter waves a rainbow flag outside the Supreme Court in 2015.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/samesex-marriage-supporter-vin-testa-of-washington-dc-waves-a-rainbow-picture-id471417652?s=2048x2048">Drew Angerer/Getty Images </a></span></figcaption></figure><p>While <a href="https://www.reuters.com/world/us/how-abortion-became-divisive-issue-us-politics-2022-06-24/">public opinion</a> and <a href="https://www.guttmacher.org/state-policy/explore/overview-abortion-laws">different state laws</a> on abortion rights are sharply dividing the country, there’s growing indication that most people agree on another once-controversial topic – protecting same-sex marriage.</p>
<p>The U.S. House of Representatives voted on July 19, 2022, to <a href="https://www.congress.gov/bill/117th-congress/house-bill/8404/text?r=1&s=1">enshrine same-sex marriage </a> into law with a bipartisan vote – all 220 Democratic representatives voted in favor, joined by 47 Republican colleagues. </p>
<p>The <a href="https://www.congress.gov/bill/117th-congress/house-bill/8404">Respect for Marriage Act</a>, as it is called, would repeal the 1996 <a href="https://www.law.cornell.edu/wex/defense_of_marriage_act_(doma)">Defense of Marriage Act,</a> a federal law that defines marriage as the legal union between a man and a woman.</p>
<p>The bill faces an <a href="https://www.nbcnews.com/politics/congress/republicans-split-sex-marriage-bill-faces-uncertainty-senate-rcna39574">uncertain fate</a> in the closely divided Senate – so far, five Republicans out of 50 have said they would vote for it. Democratic Senate Majority Leader Chuck Schumer <a href="https://www.vox.com/23274491/senate-republicans-same-sex-marriage-bill-respect-for-marriage-act">has said</a> the Senate will vote on the bill once it has 10 Republican votes. </p>
<p><a href="https://academics.morris.umn.edu/tim-lindberg">I am a scholar</a> of political behavior and history in the U.S. I believe that it’s important to understand that the bipartisan support for this bill marks a significant political transformation on same-sex marriage, which was used as a <a href="https://doi.org/10.1017/S1049096505056295">contentious point</a> separating Democrats and Republicans roughly 15 to 20 years ago.</p>
<p>But over the past several years, same-sex marriage has become less politically divisive and gained more public approval, driven in part by former President Donald Trump’s general <a href="https://www.politico.com/news/2021/08/16/republicans-gay-marriage-wars-505041">acceptance of the practice</a>. This environment made it politically safe for nearly a quarter of Republican House members to vote to protect this right under federal law. </p>
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<a href="https://images.theconversation.com/files/476967/original/file-20220801-24-s4g4yz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men wearing suits stand with their backs to the camera and signs that say Just Married on their backs." src="https://images.theconversation.com/files/476967/original/file-20220801-24-s4g4yz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476967/original/file-20220801-24-s4g4yz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=445&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476967/original/file-20220801-24-s4g4yz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=445&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476967/original/file-20220801-24-s4g4yz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=445&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476967/original/file-20220801-24-s4g4yz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=560&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476967/original/file-20220801-24-s4g4yz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=560&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476967/original/file-20220801-24-s4g4yz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=560&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A same-sex couple are shown after they married at San Francisco City Hall in June 2008.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/samesex-couple-ariel-owens-and-his-spouse-joseph-barham-walk-arm-in-picture-id81601297?s=2048x2048">Justin Sullivan/Getty Images</a></span>
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<h2>What makes opinions change?</h2>
<p>Seventy-one percent of Americans say they support legal same-sex marriage, according to a <a href="https://news.gallup.com/poll/393197/same-sex-marriage-support-inches-new-high.aspx">July 2022 Gallup poll</a>. In 1996, when Gallup first polled about same-sex marriage, 27% supported legalization of same-sex marriage.</p>
<p>This shift in public opinion has happened despite increasing polarization in the U.S. <a href="https://www.pewresearch.org/politics/2019/12/17/in-a-politically-polarized-era-sharp-divides-in-both-partisan-coalitions/">about gun control, racial justice</a> and climate change.</p>
<p>What becomes, remains or ceases to be a divisive political issue in the U.S. over time depends on many factors. Changes to laws, shifting cultural norms and technological progress can all shape political controversies.</p>
<p><a href="https://doi.org/10.1017/S0898030619000277">My research, for example, explores</a> how Mormons in Utah territory – what would later become Utah state – were denied statehood by Congress until they gave up their religious belief in polygamy. Polygamy was outlawed under U.S. law, and known polygamists were excluded from voting and holding office. In the 1880s, <a href="https://theconversation.com/explaining-polygamy-and-its-history-in-the-mormon-church-81384">an estimated 20% to 30%</a> of Mormons practiced polygamy. Yet, political pressure led the Mormon Church president in 1890 to <a href="https://theconversation.com/explaining-polygamy-and-its-history-in-the-mormon-church-81384">announce</a> that polygamy would no longer be sanctioned. </p>
<p>In 2011, <a href="https://www.deseret.com/2012/1/15/20244382/mormons-say-polygamy-morally-wrong-pew-poll-shows">86% of Mormon adults reported that they consider polygamy morally wrong</a>, nearly in line with <a href="https://news.gallup.com/opinion/polling-matters/214601/moral-acceptance-polygamy-record-high-why.aspx">general public opinion</a>. </p>
<p>Many political leaders, both on the left and right, were also largely hostile to same-sex marriage <a href="https://abcnews.go.com/Politics/high-profile-politicians-changed-positions-gay-marriage/story?id=18740293">until the early 2010s.</a> </p>
<h2>A rising controversy</h2>
<p>In 1993, the Hawaii Supreme Court ruled that the <a href="https://www.politico.com/news/magazine/2021/05/31/issenberg-book-excerpt-bill-woods-honolulu-doma-491401">state must have a compelling reason to ban same-sex marriage</a>, after a gay male couple and two lesbian couples <a href="https://www.nytimes.com/1993/05/07/us/in-hawaii-step-toward-legalized-gay-marriage.html">filed a suit</a> that a state ban on same-sex marriage violated their privacy and equal protection rights. </p>
<p>Concern among conservatives that this legal reasoning would lead the Supreme Court to acknowledge a right to same-sex marriage led to a <a href="https://www.msnbc.com/the-last-word/how-and-why-doma-became-law-1996-msna20387">Republican Senator and Congressman</a> introducing the <a href="https://www.law.cornell.edu/wex/defense_of_marriage_act_(doma)">Defense of Marriage Act</a>.</p>
<p>President Bill Clinton signed the bill in 1996 after <a href="https://law.jrank.org/pages/6038/Defense-Marriage-Act-1996.html">342 – or 78% – of House members and 85 senators</a> voted for it. Polling at the time showed support among the general population for same-sex marriage was <a href="https://news.gallup.com/poll/210566/support-gay-marriage-edges-new-high.aspx">27% overall, including just 33% among Democrats</a>. </p>
<p>Seven years later, in 2003, the Massachusetts Supreme Court struck down a <a href="http://masscases.com/cases/sjc/440/440mass309.html">state ban on same-sex marriage</a>. With a <a href="https://news.gallup.com/poll/311672/support-sex-marriage-matches-record-high.aspx">strong majority nationally of Republicans and independents opposed to same-sex marriage</a>, former President George W. Bush used conservative reactions to that decision to encourage voter turnout in 2004. <a href="https://www.sfgate.com/news/article/GAY-MARRIAGE-Did-issue-help-re-elect-Bush-2677003.php">Bush’s campaign highlighted state amendments to ban same-sex marriage</a>, all of which easily passed. </p>
<p>Although voters prioritized <a href="https://doi.org/10.2202/1540-8884.1056">other issues</a> in the 2004 elections, the opposition to same-sex marriage <a href="https://www.degruyter.com/document/doi/10.2202/1540-8884.1058/html">helped Bush win reelection</a>, while Republicans picked up seats in both the House and Senate.</p>
<h2>A political change</h2>
<p>The legal and political landscape on same-sex marriage <a href="https://www.usatoday.com/story/news/politics/2015/06/24/same-sex-marriage-timeline/29173703/">became much more liberal</a> in the years following 2004. </p>
<p><a href="https://www.history.com/this-day-in-history/prop-8-passed-california-gay-marriage">In 2008,</a> state courts in California and <a href="https://www.nytimes.com/2008/10/11/nyregion/11marriage.html">Connecticut struck down</a> bans on same-sex marriage. <a href="https://www.reuters.com/article/us-gaymarriage-vermont/vermont-becomes-4th-u-s-state-to-allow-gay-marriage-idUSTRE53648V20090407">Vermont became</a> the first state in 2009 to pass legislation and legalize same-sex marriage.</p>
<p>A major national shift occurred in 2012 <a href="https://www.cbsnews.com/news/obama-biden-forced-hand-on-same-sex-marriage-but-alls-well/">when then-Vice President Joe Biden</a> and President Barack Obama openly supported same-sex marriage. This was a major change for both men. <a href="https://www.cnn.com/2022/07/22/politics/marriage-equality-congress-evolution/index.html">Biden had voted in favor of the Defense of Marriage Act</a>in 1996. <a href="https://abcnews.go.com/Politics/OTUS/dissecting-president-obamas-evolution-gay-marriage/story?id=18792720">Obama publicly supported</a> marriage as being between a man and a woman in his 2004 senatorial campaign.</p>
<p>In 2015, the Supreme Court <a href="https://www.law.cornell.edu/supremecourt/text/14-556">struck down</a> all national and state restrictions on same-sex marriage, making same-sex marriage the law of the land.</p>
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<span class="caption">Rainbow-colored lights shine on the White House after the Supreme Court ruled in favor of same-sex marriage in June 2015.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/rainbowcolored-lights-shine-on-the-white-house-to-celebrate-todays-us-picture-id478678270?s=2048x2048">Mark Wilson/Getty Images</a></span>
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<h2>The Trump effect</h2>
<p>The lack of attention Trump paid to same-sex marriage is one factor that contributed to it becoming a less divisive issue. While Trump’s <a href="https://www.washingtonpost.com/politics/2020/08/24/absurb-claim-that-trump-is-most-pro-gay-president-american-history/">actual record on LBGTQ rights</a> generally aligns with conservative Christian values, Trump had said in 2016 that he was <a href="https://www.politico.com/story/2016/11/donald-trump-same-sex-marriage-231310">“fine” with legalizing same-sex marriage</a>. </p>
<p>Still, despite the legality of same-sex marriage, many conservative Midwestern and Southern states <a href="https://www.hrc.org/resources/state-maps">deny other legal protections</a> to LBGTQ persons. Twenty-nine states still allow licensed professionals to conduct youth gay-conversion therapy, <a href="https://www.cnn.com/2022/03/07/health/conversion-therapy-personal-and-financial-harm/index.html">a discredited process to convert LGBTQ people into no longer being queer</a>. </p>
<p>More than 20 states allow discrimination in <a href="https://www.lgbtmap.org/equality-maps/non_discrimination_laws">both housing</a> and public accommodations based on sexual orientation. </p>
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<a href="https://images.theconversation.com/files/476998/original/file-20220801-70473-f142qs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman holds up a sign that says 'every child deserves a mom and dad'" src="https://images.theconversation.com/files/476998/original/file-20220801-70473-f142qs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476998/original/file-20220801-70473-f142qs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476998/original/file-20220801-70473-f142qs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476998/original/file-20220801-70473-f142qs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476998/original/file-20220801-70473-f142qs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476998/original/file-20220801-70473-f142qs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476998/original/file-20220801-70473-f142qs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A woman participates in a protest in Washington after the Supreme Court’s ruling on same-sex marriage in 2015.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/opponents-of-samesex-marriage-demonstrate-near-the-supreme-court-28-picture-id471432028?s=2048x2048">Drew Angerer/Getty Images</a></span>
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<h2>Respect for marriage</h2>
<p>Some Republican leaders have <a href="https://www.nytimes.com/2022/07/22/us/politics/after-roe-republicans-sharpen-attacks-on-gay-and-transgender-rights.html">grown bolder </a>in their opposition to same-sex marriage since the Supreme Court overturned the constitutional right to abortion in the Dobbs v. Jackson Women’s Health Organization decision. </p>
<p>Other Republicans have said that codifying federal law same-sex marriage is <a href="https://www.vox.com/23274491/senate-republicans-same-sex-marriage-bill-respect-for-marriage-act">not necessary</a> since they don’t believe the Supreme Court is likely to overturn federal protections for same-sex marriage. </p>
<p>Democrats first moved to protect same-sex marriage in federal law because Supreme Court Justice Clarence Thomas wrote in a concurring opinion in the Dobbs case that the court <a href="https://www.politico.com/news/2022/06/24/thomas-constitutional-rights-00042256">should reconsider,</a> “all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” the latter being the case that legalized same-sex marriage.</p>
<p>But despite public opinion polls showing that most people favor legalizing same-sex marriage – including <a href="https://news.gallup.com/poll/311672/support-sex-marriage-matches-record-high.aspx">nearly half</a> of Republicans – the issue could still be a liability for Republican politicians. They have to answer to their core conservative constituents who largely oppose the practice. <a href="https://thehill.com/homenews/senate/3570528-same-sex-marriage-debate-poses-problems-for-republicans/">This could mean</a> that Senate Republicans may have to consider splitting from their own base, or stepping away from moderate voters.</p><img src="https://counter.theconversation.com/content/187509/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Lindberg does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The U.S. House of Representatives recently voted for a bill that would federally protect same-sex marriage – and 47 Republicans signed on, too. Same-sex marriage isn’t the partisan issue it once was.Tim Lindberg, Assistant professor, political science , University of MinnesotaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1403712020-06-16T12:48:31Z2020-06-16T12:48:31ZSouth Africa’s failure to legislate on religious marriages leaves women vulnerable<figure><img src="https://images.theconversation.com/files/340643/original/file-20200609-21219-k9a9s8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Hindu bride on her wedding day.</span> <span class="attribution"><span class="source">EPA-EFE/Shaizaib Akber</span></span></figcaption></figure><p>Until the end of apartheid in 1994, only civil marriages concluded under the <a href="https://www.gov.za/sites/default/files/gcis_document/201505/act-25-1961.pdf">Marriage Act</a> were legally recognised in South Africa. Post 1994, the new <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf">Constitution</a> enabled the recognition of different forms of marriages, including traditional and religious marriages.</p>
<p>But these rights haven’t been translated into law for all marriages. To date, apart from civil marriages, only customary marriages and same-sex unions are <a href="https://justice.gov.za/legislation/acts/1998-120.pdf">legally recognised</a>. Laws have not been passed to recognise religious marriages <a href="http://www.saflii.org/za/legis/num_act/cua2006139.pdf">as legally valid</a>.</p>
<p>There was some hope that progress had been made in 2010 when the <a href="http://pmg-assets.s3-website-eu-west-1.amazonaws.com/bills/110117muslim-marriages-bill.pdf">Muslim Marriages Bill</a> was approved by Cabinet. But it’s never been passed into law. </p>
<p>Two years ago the state’s failure to legally recognise Muslim marriages was challenged in the Western Cape High Court.</p>
<p>The Court <a href="http://www.saflii.org/za/cases/ZAWCHC/2018/109.html">held</a> that by not having legislation that recognises and regulates the marriages, the state violated several constitutional rights. These included the rights of Muslim women to equality, dignity and freedom of religion.</p>
<p>The Court found that the state abdicated its constitutional obligations to “respect, protect, promote and fulfil the rights in the Bill of Rights”, and to perform its constitutional obligations “diligently and without delay”.</p>
<p>The Court ordered the state to prepare, initiate, enact and bring into operation legislation to recognise and regulate Muslim marriages by 31 August 2020. But, the judgment is being appealed in the Constitutional Court. The deadline imposed by the High Court is thus suspended pending the outcome of the appeal.</p>
<p>The arguments raised in the judgment are arguably also relevant to other minority religious marriages, including Hindu and Jewish marriages. </p>
<p>The failure of the state to recognise religious marriages is a major omission in a country that boasts a constitution that promotes diversity. In particular, the failure to have laws recognising – and regulating – religious marriages leaves women, in particular, vulnerable. </p>
<h2>The missing marriages</h2>
<p>Nonrecognition of religious marriages undermines the dignity of spouses. For instance, those who do not also have a civil marriage continue to be regarded as unmarried. When they die, their death certificates reflect that they were never married. This confirms that their spousal relationship had no legal significance. </p>
<p>Secondly, by not affording legal recognition to religious marriages, the right of spouses in those marriages to equal treatment and protection of the law is undermined.</p>
<p>Thirdly, women in religious marriages are unfairly discriminated against on the basis of gender and sex. For example, women in Muslim, Hindu and Jewish marriages have difficulty exiting religious marriages. Legal recognition – and regulation – of their marriages could assist them in doing so. </p>
<p>Hindu and Jewish spouses tend to enter into civil marriages in addition to their religious marriages. But most Muslims don’t. That’s mainly because civil marriages do not allow polygny and are, by default, in community of property. These are deemed by many Muslims to be unIslamic. </p>
<p>But even spouses who enter into civil marriages need their religious marriage to be legally recognised. This is so that features specific to the religious marriage, such as religious divorce, can be recognised, regulated and enforced by law.</p>
<h2>Parallel processes</h2>
<p>There are two parallel law reform processes underway to consider amendments to the country’s marriage laws. One is managed by the South African Law Reform Commission, and the other by the <a href="http://www.dha.gov.za/index.php/notices/1286-the-consultative-stakeholder-engagements-for-the-development-of-the-marriages-policy">Department of Home Affairs</a>. Both appear to want to draft overarching legislation to afford recognition to all forms of marriages.</p>
<p>Home Affairs has not yet produced written documentation for consideration. The Commission has published <a href="https://www.justice.gov.za/salrc/ipapers/ip35_prj144_SingleMarriageStatute.pdf">a paper</a>, in which it proposes the drafting of a single marriage statute. </p>
<p>It’s not clear why there are two parallel processes to achieve the same result.</p>
<p>The Commission indicates that a single marriage statute could take the form of a single (unified) marriage act or an omnibus (umbrella) legislation. </p>
<p>A <a href="https://www.justice.gov.za/salrc/ipapers/ip35_prj144_SingleMarriageStatute.pdf">single marriage act</a> “would comprise a unified set of requirements (and possibly consequences) for all marriages”.</p>
<p>An omnibus legislation “would contain different chapters” for the recognition of different kinds of marriages such as civil marriages, civil unions, customary marriages and religious marriages.</p>
<p>A single marriage act and omnibus legislation could afford recognition to all types of marriages, including civil, religious and customary marriages, and same-sex unions. While a single marriage act would achieve this by pursuing a one-size-fits-all approach, an omnibus legislation would incorporate several chapters, each purporting to recognise a different type of marriage. </p>
<p>The inclination to want to afford legal recognition to all types of marriages is welcome. But the devil will be in the detail.</p>
<p>Recognition of all marriages will promote formal equality by ensuring that all marriages are legally recognised and treated as legally valid. But, if a single marriage act or omnibus legislation affords only legal recognition to religious marriages, the regulation of the marriages will still be left to religious communities. </p>
<p>This leaves the door open for gendered discriminatory religious rules and practices to be maintained. For example, polygyny in Muslim marriages could continue to be practised in a manner that discriminates against women. Husbands could still get away with not treating their polygynous wives equally. </p>
<p>It is, therefore, not good enough for the state to only recognise different forms of marriages. It needs to also regulate them. By regulating features that are specific to a religious marriage, such as polygyny and divorce, substantive equality can be promoted. Each type of marriage, the way in which it is practised within communities, and the consequences for especially marginalised members of those communities such as women, must be considered.</p>
<p>If the state is serious about affording sufficient protection to marginalised people in society – including women in minority religious communities – it should go beyond simply recognising all forms of marriages. It must also regulate them – in a nuanced way. </p>
<p>The state could do so by enacting separate legislation to recognise and regulate a particular type of marriage, such as the Muslim Marriages Bill. It could also enact an omnibus legislation that contains different chapters, which recognise and regulate the specific features of different types of marriages. For instance, the Muslim Marriages Bill could be incorporated into the omnibus legislation as a chapter. And existing legislation, such as the <a href="https://justice.gov.za/legislation/acts/1998-120.pdf">Recognition of Customary Marriages Act</a>, <a href="https://www.gov.za/documents/civil-union-act">Civil Union Act</a> and Marriage Act, could be amended where necessary and included as separate chapters.</p>
<h2>What needs to happen next</h2>
<p>The state must consult all relevant stakeholders, including religious law and gender experts; members of affected communities, including women; and broader civil society. This is the only way that marriage laws in the country can be appropriately responsive to the lived realities of all, especially women. </p>
<p>The consultation processes could reveal that some marriages require more or less regulation than others. The outcome of the consultation processes must then be incorporated into legislation.</p><img src="https://counter.theconversation.com/content/140371/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Waheeda Amien does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>To afford sufficient protection to marginalised people in society - such as women in minority religious communities - the state must recognise and regulate religious marriages in a nuanced way.Waheeda Amien, Associate Professor in Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1063262018-11-11T19:05:46Z2018-11-11T19:05:46ZA year since the marriage equality vote, much has been gained – and there is still much to be done<figure><img src="https://images.theconversation.com/files/244682/original/file-20181108-74757-x86g2m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The results of the SSM vote brought great jubilation on November 15, 2017- but the fight is not yet over.</span> <span class="attribution"><span class="source">AAP/Luis Enrique Ascui</span></span></figcaption></figure><p>November 15, 2018 is the one-year anniversary of Australians voting “yes” to marriage equality. The survey was an <a href="https://www.themonthly.com.au/issue/2017/november/1509454800/judith-brett/travesty-process">unprecedented</a> two-month exercise in engaging with current Australian community values around sexuality and relationships. </p>
<p>The survey returned a clear result, with 61.6% in favour of allowing same-sex couples to marry. Legislation recognising marriage equality passed into law on December 8.</p>
<p>In the six months after the legislation passed, <a href="https://junkee.com/marriage-equality-numbers/161455">almost 2,500 same-sex couples were married</a>. That’s about 100 gay weddings a week.</p>
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Read more:
<a href="https://theconversation.com/the-postal-survey-is-both-bizarre-and-typical-in-the-history-of-western-marriage-83572">The postal survey is both bizarre and typical in the history of Western marriage</a>
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<p>LGBT people still have mixed and changing views about marriage. Former high court judge, Michael Kirby <a href="https://www.theguardian.com/law/2018/nov/04/michael-kirby-former-judge-to-marry-partner-on-50th-anniversary-of-day-they-met">expressed these ambivalences well</a> recently, when he and his partner, Johan van Vloten, announced their decision to marry:</p>
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<p>we’ve been together now for 49 years and eight months. And so it just seemed a little artificial. It seemed a little late for the confetti. And it also seemed to us a little bit patriarchal… (but) we’ve ultimately decided that we are going to get married.</p>
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<p>For very many LGBT people, the postal survey was a deeply traumatic time. Many still live with the ongoing grief of having had the dignity of their lives, and those of their children, up for debate.</p>
<p>A soon to be released <a href="https://www.theliftedbrow.com/going-postal-more-than-yes-or-no/">collection of queer writing</a> from the marriage equality survey period provides a sensitive and beautiful document of that experience (including a <a href="https://theconversation.com/the-postal-survey-is-both-bizarre-and-typical-in-the-history-of-western-marriage-83572">piece</a> of mine).</p>
<p>But the passage of marriage equality legislation was not the end of this episode in our history. Our communities are still healing after the bruising campaign, and its aftermath has exposed a legal and social landscape in which the human rights of LGBT people are still not adequately valued and respected. </p>
<p>In what was presented at the time as a conciliatory gesture to the religious right, then Prime Minister Malcolm Turnbull convened an <a href="https://www.pmc.gov.au/domestic-policy/religious-freedom-review">expert panel</a> to “examine whether Australian law adequately protects the human right to freedom of religion”.</p>
<p>Far from placating conservative Christians, unsettled by the arrival of marriage equality, the Ruddock review <a href="https://theconversation.com/ruddock-report-constrains-not-expands-federal-religious-exemptions-96347">brought into view</a> the considerable exemptions from sexual discrimination legislation that Australian law grants religious bodies.</p>
<p>Australians were surprised and outraged to discover that, in most Australian jurisdictions, religious schools are permitted to expel students and fire teachers for the simple fact of their sexuality or gender identity. This is the case even if those students or teachers are people of faith and living in accordance with the tenets of their church.</p>
<p>When we launched the report of our three year study of <a href="https://www.hrlc.org.au/reports/preventing-harm">LGBT conversion therapy</a> last month, people were similarly surprised and horrified. These harmful and discredited practices - futile attempts to make LGBT people straight and cisgendered - are still present in many Australian religious communities, and remain legal. </p>
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Read more:
<a href="https://theconversation.com/as-australians-say-yes-to-marriage-equality-the-legal-stoush-over-human-rights-takes-centre-stage-87337">As Australians say 'yes' to marriage equality, the legal stoush over human rights takes centre stage</a>
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<p>Perhaps this moment of realisation of the magnitude of discrimination and harms that the law in Australia still permits is one of the most important outcomes of the marriage equality postal survey.</p>
<p>The postal survey forced the majority of Australian’s to reflect on their values around sexuality, relationships and humanity. The clear majority of Australians came to the conclusion LGBT people are just as human as all other Australians. We decided LGBT people deserve the same opportunities for joy and loss, commitment and recognition, and protection under the law, that marriage provides.</p>
<p>This recognition of the dignity and humanity of LGBT people has brought forward debate about the law in regard to religion and sex. Made aware of the ways current law permits religious bodies to discriminate on the basis of sex, the majority of Australians recognise the state of the law does not reflect their values.</p>
<p>It’s time to renegotiate the balance of rights between the protection of LGBT people from discrimination and the permission we give people of faith to discriminate on the basis of sex. </p>
<p>And this might not be a bad thing for religion in Australia. Religious communities might need to reflect on why they are so obsessed with sex. Sexual values are not present in any of the founding creeds of Australia’s major religions. And there is no consistent view in any religion regarding teachings about gender and sexuality. </p>
<p>A recent study on <a href="https://mccrindle.com.au/wp-content/uploads/2018/04/Faith-and-Belief-in-Australia-Report_McCrindle_2017.pdf">Faith and Belief in Australia</a> showed only 20% of Australians are actively involved in religion. It also found the biggest block (31%) to Australians engaging with Christianity was the churches’ teaching and stance on homosexuality. </p>
<p>The postal survey has, ironically, made Australia come to grips with religion. Perhaps it’s now time for Australia’s religions to come to grips with sex.</p><img src="https://counter.theconversation.com/content/106326/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy W. Jones receives funding from the Australian Research Council. </span></em></p>The marriage equality debate brought the rights of LGBT Australians to the fore - now we need to turn our attention to the ways they are still discriminated against.Timothy W. Jones, Senior Lecturer in History, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1042862018-10-03T12:06:37Z2018-10-03T12:06:37ZCivil partnerships extended to heterosexual couples – the legal protections explained<figure><img src="https://images.theconversation.com/files/239114/original/file-20181003-52678-mrn2b6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Charles Keidan and Rebecca Steinfeld, who campaigned for equal civil partnerships. </span> <span class="attribution"><span class="source"> Victoria Jones/PA Wire</span></span></figcaption></figure><p>Heterosexual couples in England and Wales will soon be allowed to enter into civil partnerships, formerly reserved for same-sex couples. Announcing the change, prime minister Theresa May <a href="https://www.theguardian.com/uk-news/2018/oct/02/civil-partnerships-to-be-opened-to-heterosexual-couples">explained</a> that the change to the law would protect opposite-sex couples: “Who want to commit, want to formalise their relationship but don’t necessarily want to get married.”</p>
<p>May said the reforms would address the imbalance in the law and offer heterosexual and same-sex couples “the same choices in life”. At the moment, same-sex couples can choose to either <a href="http://www.legislation.gov.uk/ukpga/2013/30/contents/enacted">marry under the Marriage (Same Sex Couples) Act 2013</a> or enter into a <a href="http://www.legislation.gov.uk/ukpga/2004/33/contents">civil partnership</a>, however, heterosexual couples are only able to enter into a marriage.</p>
<p>The <a href="http://www.legislation.gov.uk/ukpga/2004/33/contents">Civil Partnership Act 2004</a> was introduced as a means for providing same-sex couples with the opportunity to formalise their relationships, but also to provide them with similar rights and protections as married heterosexual couples. </p>
<p>After a failed attempt to register a civil partnership, Rebecca Steinfeld and Charles Keidan began campaigning for civil partnerships to be extended to heterosexual couples as they had deep-rooted and genuine ideological objections to the institution of marriage. They defended their <a href="https://www.theguardian.com/lifeandstyle/2016/jan/19/couple-begin-court-fight-against-ban-heterosexual-civil-partnerships">position</a> stating:</p>
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<p>We want to raise our child as equal partners and believe that a civil partnership – a modern, symmetrical institution – best reflects our beliefs.</p>
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<p>They argued that preventing heterosexual couples from entering into a civil partnership was incompatible with the European Convention on Human Rights. In a ruling in June 2018, the <a href="https://www.supremecourt.uk/cases/uksc-2017-0060.html">UK Supreme Court unanimously</a> agreed with Steinfeld and Keidan, concluding that: </p>
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<p>The interests of the community in denying different sex couples … the opportunity to enter a civil partnership are unspecified … and the denial of those rights may have far-reaching consequences. </p>
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<p>The government’s plan to change the law follows this Supreme Court ruling. </p>
<h2>Cohabiting couples at risk</h2>
<p>Some cohabiting couples in long-term relationships may believe they have the same rights and protections as married couples or civil partners, <a href="https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN03372#fullreport">but this could not be further from the truth</a>. The law treats cohabiting couples on the breakdown of the relationship or upon death as two unrelated individuals. This means they do not have the same guaranteed rights and protections as spouses or civil partners in terms of financial support and property rights upon separation or death and tax benefits. </p>
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<img alt="" src="https://images.theconversation.com/files/239116/original/file-20181003-52681-z85yjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/239116/original/file-20181003-52681-z85yjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/239116/original/file-20181003-52681-z85yjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/239116/original/file-20181003-52681-z85yjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/239116/original/file-20181003-52681-z85yjg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/239116/original/file-20181003-52681-z85yjg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/239116/original/file-20181003-52681-z85yjg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Cohabiting couples don’t get the same protections under the law as married ones, or those in a civil partnership.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/young-couple-moving-new-home-together-389059606?src=J3DU5jkRkStDm6jphs86TQ-1-37">Monkey Business Images/ Shutterstock</a></span>
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<p>In legal terms, civil partnerships and marriage are broadly similar. Once a couple has registered a civil partnership, each partner has an obligation to provide reasonable financial maintenance for the other both during the civil partnership and on its termination. The current law does not provide cohabiting couples with the same financial rights and obligations. The criteria set out in the <a href="http://www.legislation.gov.uk/ukpga/2004/33/schedule/5">Civil Partnership Act 2004</a> mirror those of the <a href="https://www.legislation.gov.uk/ukpga/1973/18/section/25">Matrimonial Causes Act 1973</a>. This means in both types of union, the courts have the power to redistribute assets taking into consideration all the circumstances of the case. </p>
<p>Financial support for children is a responsibility that applies regardless of the relationship status of the parents. As civil partners, couples will have access to favourable tax relief and exemptions equal to those of married couples. For example, tax exemption for gifts between partners and certain exemptions from inheritance tax. Under the rules of intestacy, if a civil partner dies without leaving a will, the surviving partner is automatically entitled to a share of their partner’s estate. </p>
<p>Although there are some similarities between marriage and civil partnership, there are also some notable differences. While a marriage can be ended in divorce, a civil partnership would be dissolved. A dissolution is largely equivalent to a divorce, as the only ground for divorce is the irretrievable breakdown of the relationship, however, a civil partnership cannot be ended on the basis of adultery, while a marriage can. </p>
<p>The government will now consult on the technical aspects of the change in law though it has not provided a date for when these changes will be implemented. It is so far unclear whether there will be a significant number of couples entering into civil partnership, but at the very least the government has taken another step in recognising relationship statuses beyond marriage.</p><img src="https://counter.theconversation.com/content/104286/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zanele Nyoni- Wood does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The different legal protections between marriage, civil partnership and cohabitation.Zanele Nyoni- Wood, Lecturer in Law, Solicitor, University of Central LancashireLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1005612018-07-26T12:22:16Z2018-07-26T12:22:16ZUnhappily married: it’s time to end the blame game and allow ‘no fault’ divorce<p>A British woman seeking to divorce her husband must remain unhappily married to him until 2020, after the Supreme Court “reluctantly” <a href="https://www.supremecourt.uk/cases/uksc-2017-0077.html">ruled</a> in his favour. By 2020, Tini Owens will have been separated from her husband, Hugh, for five years, which is grounds for divorce under the current law. </p>
<p>The couple married in 1978 and in 2015 Tini Owens left the matrimonial home and petitioned for divorce. Among many reasons, <a href="https://www.judiciary.uk/wp-content/uploads/2017/03/owens-v-owens.pdf">she alleged</a> that he had prioritised his work over their home life, the marriage lacked love and affection, he was often moody and argumentative, and as such, he had behaved in such a way that she could not reasonably be expected to live with him. Hugh Owens denied the allegations and refused to agree to a divorce. </p>
<p>In <a href="https://www.legislation.gov.uk/ukpga/1973/18">England and Wales</a>, the only ground for divorce is that the marriage has irretrievably broken down, however, the court cannot grant a divorce unless it is satisfied that one of five facts has been established. Three of these are what is called “fault based” – adultery, unreasonable behaviour and desertion. The other two are based on periods of separation: two years separation with both parties consenting and five years separation without consent.</p>
<p>The case is a rare example of a court rejecting a behaviour petition on the grounds that the behaviour was not bad enough. It also demonstrates that the current divorce process is not fit for purpose. </p>
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Read more:
<a href="https://theconversation.com/divorce-can-be-nobodys-fault-the-law-should-do-more-to-recognise-that-51836">Divorce can be nobody's fault – the law should do more to recognise that</a>
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<p>In her closing remarks, the president of the Supreme Court, Lady Hale, stated that the Owens situation was “a very troubling case”, but that the court’s role was not to change the law, but to interpret and apply it as laid down by parliament. </p>
<p>Since the last <a href="http://news.bbc.co.uk/1/hi/uk_politics/1120846.stm">unsuccessful attempts</a> to introduce “no fault” divorce, there have been continued calls for <a href="https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN01409#fullreport">reform</a> of the current system, including from <a href="https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Speeches/pfd-speech-resolution-annual-conference-240312.pdf">senior members</a> of the judiciary.</p>
<p>A 2018 <a href="http://findingfault.org.uk/wp-content/uploads/2017/10/Finding-Fault-summary-report.pdf">report</a> published by the Nuffield Foundation found that in a national opinion survey, 62% of people applying for a divorce and 78% of people against whom an application for divorce had been made, said the use of fault made the process more bitter.</p>
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<img alt="" src="https://images.theconversation.com/files/229430/original/file-20180726-106521-h8yi6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/229430/original/file-20180726-106521-h8yi6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=412&fit=crop&dpr=1 600w, https://images.theconversation.com/files/229430/original/file-20180726-106521-h8yi6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=412&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/229430/original/file-20180726-106521-h8yi6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=412&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/229430/original/file-20180726-106521-h8yi6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=518&fit=crop&dpr=1 754w, https://images.theconversation.com/files/229430/original/file-20180726-106521-h8yi6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=518&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/229430/original/file-20180726-106521-h8yi6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=518&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">An already difficult process can be made worse by the need to apportion blame.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/couple-going-through-divorce-signing-papers-605041388?src=biXNuMJzL06aAqx20Lk8OQ-1-0">via www.shutterstock.com</a></span>
</figcaption>
</figure>
<h2>Lagging behind</h2>
<p>The Owens case is also significant as it highlights that England and Wales is lagging behind other jurisdictions. </p>
<p>Australia has had no fault divorce since <a href="https://www.legislation.gov.au/Details/C2018C00003">1976</a>. The <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/separation-and-divorce/divorce/divorce">sole ground for divorce</a> there is the irretrievable breakdown of the marriage, demonstrated by 12 months of continuous separation. The regime doesn’t require the airing of alleged unreasonable behaviour and doesn’t force couples to apportion blame for the breakdown of the marriage. Similarly, under Dutch law, it’s not necessary to allege fault against the other party for a divorce to be possible. </p>
<p>The basis for divorce in Scotland was originally very similar to that in England and Wales. But following the <a href="https://www.legislation.gov.uk/asp/2006/2/contents">implementation of reforms in 2006</a>, couples can divorce after one year if they both agree, or after two years if one party does not consent. While the fault-based facts of unreasonable behaviour and adultery have been retained in Scottish law, the reliance on these is very low. The Office of National Statistics found that in 2015, 60% of English and Welsh divorces <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2016#unreasonable-behaviour-remained-the-most-common-grounds-for-opposite-sex-couples-divorcing">were granted on adultery or behaviour</a>, while in Scotland this was only 6%. </p>
<p>One of the main <a href="https://publications.parliament.uk/pa/cm201516/cmhansrd/cm151013/debtext/151013-0002.htm#15101362000001">objections to introducing no fault divorce</a> is that it would make divorce easier and lead to higher divorce rates. Scotland saw an increase in divorce rates in the two years after the reforms, before a 14% drop in 2012. <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2016">But recent figures</a> show that in 2016, there was a 5.8% increase in divorces in England and Wales, suggesting that current divorce laws don’t act as a deterrent to couples wanting to get divorced.</p>
<p>Divorce is never easy; but the introduction of a no fault system would enable couples to end their marriage in a dignified and non-adversarial way. While there is the possibility of an increase in divorce rates if a no fault system is introduced, this is unlikely to be significant and long-lasting. Instead, a greater advantage of reform is that it will alleviate unnecessary family conflict, surely reason enough to encourage parliament to replace the law.</p><img src="https://counter.theconversation.com/content/100561/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zanele Nyoni- Wood does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court ruled that a British couple must stay married until 2020 because there was no ‘fault’ in their marriage.Zanele Nyoni- Wood, Lecturer in Law, Solicitor, University of Central LancashireLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/835722017-09-07T20:16:13Z2017-09-07T20:16:13ZThe postal survey is both bizarre and typical in the history of Western marriage<figure><img src="https://images.theconversation.com/files/185049/original/file-20170907-9189-i2g80o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Marriage reform of any kind has been historically slow to take hold.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The <a href="https://theconversation.com/high-court-gives-go-ahead-for-marriage-ballot-83640">High Court’s decision</a> to allow exceptional government spending on the marriage postal survey makes way for the latest bizarre, but typical, episode in the history of political responses to changing social attitudes to marriage.</p>
<p>The voluntary postal survey is unique and bizarre, in that no government has yet conducted such a <a href="http://www.abc.net.au/news/2017-08-09/why-the-abs-for-same-sex-marriage-postal-plebiscite/8786530">statistically unreliable</a> exercise in gauging public opinion on a contentious social issue. Yet it is typical, in that political responses to social change in areas of sex and morality are usually slow, fiercely contested, ideologically confused, but nonetheless important. </p>
<h2>Political change in response to changes in social values is slow</h2>
<p>The slow and strange political processes in Australia over the political recognition of same-sex marriages are actually typical of those around the world. The legislative histories of many previous changes to marriage law have been far longer and more drawn out than the recognition of same-sex marriage in Australia is likely to be. </p>
<p>One of the most contested changes in British marriage law was the now-obscure reform to allow a <a href="https://en.wikipedia.org/wiki/Deceased_Wife%27s_Sister%27s_Marriage_Act_1907">man to marry his deceased wife’s sister</a>. </p>
<p>In an era of high maternal death and limited social welfare, it was common for deceased women’s sisters to marry their brothers-in-law and assume their sister’s role as wife and mother. The churches regarded such marriages as incestuous, and fiercely opposed law reform to legalise them. It took almost 70 years for this now forgotten reform to pass. </p>
<p>Reforms to permit divorce, interracial marriage and to administer traditional polygamous marriages were similarly contested and slow to be formed and reformed. </p>
<p>It should, therefore, not be a surprise that legislative reform in Australia to allow same-sex couples to marry is taking longer than a decade.</p>
<h2>The complex relationship between religion, law and marriage</h2>
<p>In some jurisdictions, in some times, religious institutions have legislated and adjudicated for marriage. This has never been the case in Australia. Between 1753 and 1836, the Church of England did enjoy sole political jurisdiction and administration of marriage in the British world.</p>
<p>However, from federation, Australian marriage law has always been secular. Religious organisations have made their own rulings about what marriage practices their own members should engage in. But while “churches, mosques or synagogues might bless nuptials, marriage itself is <a href="https://theconversation.com/wong-bernardi-debate-puts-four-myths-about-marriage-on-show-44509">not a religious institution</a>”.</p>
<p>Nor is it the law’s role in Australia to impose moral standards on society. Since at least 1971, when censorship law was reformed, lawmakers have sought to use legislation to enforce current community standards, rather than impose ideologically based absolutes.</p>
<p>The government’s ostensible rationale for the optional postal survey is actually in line with this norm: to assess community standards. Both proponents and – especially – opponents of change have been careful to frame their arguments in relation to shared community values.</p>
<h2>Marriage equality is about more than marriage</h2>
<p>The case for marriage law reform to allow same-sex couples to marry has been relatively simple and consistent around the world: a claim that to include same-sex couples in marriage will increase equality and social inclusion. </p>
<p>As this case has gained traction in the West, opponents of change have had to innovate in order to combat rapidly changing community standards. </p>
<p>As I have argued <a href="https://theconversation.com/what-really-lies-behind-conservative-opposition-to-same-sex-marriage-46011">elsewhere</a>, opponents of marriage law reform are primarily motivated by religious conviction. However, in a largely secular context, where moral values cannot easily be imposed on a population, “they are attempting to hide religious and moral arguments in the Trojan horse of health and human rights discourse”.</p>
<p>The “No” campaign has so far largely sidestepped the social justice argument of the “Yes” campaign. Instead, they have raised fears about children in rainbow families.</p>
<p>Conservatives have argued that children have a “right” to a mother and a father, and that same-sex parenting necessarily involves the “removal” of a child from one of its natural parents. These are innovative arguments. </p>
<p>Same-sex parenting is clearly not in contravention of the UN <a href="http://www.ohchr.org/en/professionalinterest/pages/crc.aspx">Convention on the Rights of the Child</a>. The right to a mother and a father is a completely novel human right for children, and one that is impossible to guarantee. And <a href="https://theconversation.com/factcheck-are-children-better-off-with-a-mother-and-father-than-with-same-sex-parents-82313">research</a> clearly shows that children raised by same-sex parents show no different health or wellbeing outcomes to children raised by opposite-sex parents.</p>
<p>Similarly, when donor assisted reproduction became popular and was debated 70 years ago, governments and churches considered it at length. However, the major objection raised in these historical debates was that donor assistance in reproduction was equivalent to adultery. </p>
<p>Today, individuals and couples of all sexualities access <a href="https://www.varta.org.au/">assisted reproduction technology</a> and have done so for many decades. Equating the donation of sperm or eggs <a href="http://australianmarriage.org/tv-ad-2/">to child removal</a> is a completely novel argument. </p>
<p>As the postal survey goes ahead, we can expect to see more of these novel arguments from the “no” campaign. But it’s important to remember that legal change around marriage is historically slow, and that this debate is not about religious values, but community values. Specifically, it is about how we value LGBTI people, their relationships, and their families.</p><img src="https://counter.theconversation.com/content/83572/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy W. Jones receives funding from the Australian Research Council and the Australian Research Theology Foundation Incorporated. </span></em></p>Changes to marriage around the world have, historically, met with strident opposition, so it’s no surprise that same-sex marriage in Australia has had its own tough road to hoe.Timothy W. Jones, Senior Lecturer in History, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/824332017-08-16T20:12:46Z2017-08-16T20:12:46ZWhen it comes to same-sex marriage, not all views deserve respect<figure><img src="https://images.theconversation.com/files/181911/original/file-20170814-14751-z2dddk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Respect the people in any same-sex marriage debate, but you don't have to respect their views.</span> <span class="attribution"><a class="source" href="https://www.pexels.com/photo/food-couple-sweet-married-2226/">Pexels/SplitShire</a>, <span class="license">Author provided</span></span></figcaption></figure><p>One of the expectations in the ongoing debate over marriage reform in Australia is that all views should be respected.</p>
<p>But if we want to uphold the values of the enlightenment and of deliberative democracy, then whatever side of the debate you are on, demanding views be treated with respect is a flawed idea.</p>
<p>This may sound contradictory, but it goes to a point too often missed in such circumstances: people are worthy of respect, ideas are not.</p>
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Read more:
<a href="https://theconversation.com/facts-are-not-always-more-important-than-opinions-heres-why-76020">Facts are not always more important than opinions: here's why</a>
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<p>We naturally adopt a respectful attitude to people. At this basic level, people have to work hard to lose our respect, and, even then, we may choose not to disregard them because we value human life and dignity. We appreciate that they contribute in some way to the social norms we all enjoy, and that they, like us, are creators of society as well as participants in it.</p>
<p>Ideas have no such empathetic traction. Unlike people they cannot suffer, they do not know joy, and they do not contribute by themselves to the happiness of others. </p>
<p>That is not to say there are no really good or really bad ideas. But they do need to stand or fall exclusively on their merits, and often within their own contexts. They should be subject to critical scrutiny and survive only though articulation and argumentation.</p>
<h2>The fallacy of deepest offence</h2>
<p>It may be painful to acknowledge, but what we view as a core belief to us may be seen differently by others. Even if we feel that the belief is a strong part of our identity. Like all ideas in a free society, it must be permissible to subject that core belief to open inquiry.</p>
<p>To assume that an idea may not be questioned because it is a part of your identity, and that an attack on it is an attack on you equivalent to a denial of human respect, is a fallacy. I call this the Fallacy of Deepest Offence.</p>
<p>It is a blurring of the line between people and ideas. It is a device by which ideas are rendered immune to critical inquiry behind the claim of deepest possible offence: an insult to human dignity.</p>
<p>Failing to recognise this fallacy creates two problems. The first is that we lose the ability to reflect on our own internal processes. If we do not look inwards and question what we see, we ossify - led more by our creed than by our critical faculties.</p>
<p>The second is that we become less tolerant of others, less willing to work collaboratively, and less able to comprehend arguments. Both of these diminish our ability to contribute and to coexist.</p>
<p>If you want to believe that the world is made of snow, that women are inferior to men, that homosexuality is morally wrong, or that relationships between people of the same sex should not be legitimised through marriage, then go ahead.</p>
<p>But the instant you take that belief into the public arena, your idea will be rightfully tested. The minute you suggest others should believe it too, you will be challenged. When you ask that the taxes of your fellow citizens support your belief, you will be resisted. This is exactly how an open society operates and should operate. </p>
<p>Your ideas are not immune to criticism just because you express them with sincerity.</p>
<h2>Ideas need arguments, not assertions</h2>
<p>Our arguments are our rational probes into the world. When they work, we can feel that we are on solid intellectual ground. When they do not, we know we need to refashion our thinking or to consider more deeply how our arguments are received by others. </p>
<p>Our arguments are not only designed to make our case publicly, but they also challenge us to look closely at our own reasoning. </p>
<p>When proponents of the status quo on marriage ask for respect, they have every right to receive it. But they have no such right for their views. </p>
<p>If robust analysis of their arguments shows up their weaknesses, then offence, or claiming a lack of respect, is not an option. The onus is on them to create a better argument. </p>
<p>The Australian Christian Lobby, for example, <a href="https://acl.nationbuilder.com/marriage_coalition">lists four assertions on its website</a> as to why same sex marriage should not be permitted:</p>
<ul>
<li>redefining marriage will threaten your freedom of speech </li>
<li>redefining marriage can take away your religious freedom </li>
<li>redefining marriage is the step before redefining gender itself, and</li>
<li>redefining marriage will take away children’s rights — every child deserves a mum and a dad. </li>
</ul>
<p>Some of these have <a href="https://theconversation.com/tony-abbott-morphs-same-sex-marriage-into-a-culture-war-issue-82279">recently been repeated</a>, equally devoid of justification, by former prime minister Tony Abbott.</p>
<p>The lack of logical or evidentiary support around these claims is breathtaking. Nowhere on the ACL’s website are found reasons supporting these claims, let alone complete arguments to analyse and evaluate. </p>
<p>So by all means let’s be respectful in the marriage equality debate. Let’s refrain from focusing on the person and play the ball instead. But let’s not assume that that means an absence of demand for rational engagement. </p>
<p>We should hold people to task for the views they express and make it clear that if they are not prepared to craft a cogent argument their slogans are nothing more than gang colours. </p>
<p>To claim offence when questioned is not only to commit the fallacy of deepest offence, is also to disrespect utterly the right of your fellows to engage in honest inquiry, and that is a very deep offence indeed.</p><img src="https://counter.theconversation.com/content/82433/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Ellerton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Your ideas are not immune to criticism just because you express them with sincerity: people are worthy of respect, ideas are not.Peter Ellerton, Lecturer in Critical Thinking, Director of the UQ Critical Thinking Project, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/739432017-07-28T12:18:49Z2017-07-28T12:18:49ZEnglish marriage law discriminates against minorities – celebrants could change that<figure><img src="https://images.theconversation.com/files/180194/original/file-20170728-18243-114jsb2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">via shutterstock.com</span></span></figcaption></figure><p>Getting married is a major life event. Not only is it a public affirmation of one person’s commitment towards another but it also results in significant life-changing obligations. The marriage ceremony should mean something to both people, as well as being valid and enforceable in law. But at the moment, English law does not allow all citizens to get married in a way that meets their needs. </p>
<p>In order to be married, British Muslims and Hindus and other minority faiths have to perform two forms of marriage – one religious and one legal. Effectively, they need to marry the same person twice. For Jews, Christians and Quakers, no such separate “marriage” needs to be completed – their religious marriage is capable of conferring the legal status of matrimony in one go if the <a href="http://www.lawcom.gov.uk/wp-content/uploads/2015/12/Getting_Married_scoping_paper.pdf">right rules</a> are followed. </p>
<p>The current law relating to marriage in England and Wales was enshrined in the <a href="http://www.legislation.gov.uk/ukpga/Geo6/12-13-14/76/contents">Marriage Act 1949</a>, but based on conventions from the 19th century. It was never built to cover the current range of diversity of faiths present in British society. </p>
<p>I believe that a change to the law to allow professionally registered celebrants to marry two people, wherever they choose, is long overdue and could help create equality for all faiths under the law.</p>
<p>As my ongoing research has found, for the vast majority of young British South Asians, marriage is regarded as vital, aspirational and indispensable. For Hindu and Muslim communities, a traditional marriage is the “real marriage” as they wish to maintain and celebrate links with their inherited culture. Simply signing a piece of paper in a civil registry office does not seem to be enough – even though it offers protective mechanisms to the financial weaker party in the event of marriage breakdown. </p>
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<img alt="" src="https://images.theconversation.com/files/177114/original/file-20170706-26465-14m36d2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177114/original/file-20170706-26465-14m36d2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177114/original/file-20170706-26465-14m36d2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177114/original/file-20170706-26465-14m36d2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177114/original/file-20170706-26465-14m36d2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177114/original/file-20170706-26465-14m36d2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177114/original/file-20170706-26465-14m36d2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A traditional Hindu wedding ceremony.</span>
<span class="attribution"><span class="source">via shutterstock.com</span></span>
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</figure>
<p>But for minority religious groups, other than the Jews and Quakers, legally binding marriages can only be celebrated in <a href="https://www.gov.uk/government/collections/places-of-religious-worship-and-the-solemnisation-of-marriages">registered</a> or <a href="https://www.gov.uk/approval-of-premises-for-civil-marriage-or-civil-partnership">approved</a> buildings. </p>
<p>In 1994, the <a href="http://www.legislation.gov.uk/ukpga/Geo6/12-13-14/76">rules</a> on where people could have a civil marriage were relaxed. As well as at a registry office, civil marriages can now take place at “approved premises” such as hotels, banqueting suites and stately homes, so long as they are appropriate and dignified. But such ceremonies cannot be religious, as it is only the civil ceremony, and not the religious one, that creates the marriage. This means that for a Hindu or Muslim wedding taking place in an hotel, there would have to be two ceremonies – a religious and a civil one.</p>
<h2>Forced to marry twice</h2>
<p>But many Muslim couples are currently <a href="https://www.academia.edu/27828967/Unregistered_Muslim_marriages_in_England_and_Wales_The_Issue_of_Discrimination_Through_Non-Marriage_Declarations">failing</a> to marry twice, and therefore do not complete the civil registration process. </p>
<p>In England and Wales, a <em>nikah</em> ceremony – a form of Muslim marriage – is not capable of creating a legally binding marriage. This can cause legal issues in the event of a marriage breakdown if a couple does not also have a civil ceremony. An emerging trend from <a href="http://www.familylawweek.co.uk/site.aspx?i=ed127612">recent case law</a> seems to show that Muslim marriages that are not appropriately registered under the law are more likely to be considered “non-marriages” by the English courts. </p>
<p>A non-marriage usually happens if a civil marriage is not performed in an appropriate building, or a civil ceremony of marriage does not take place alongside the religious. Usually the realisation that a marriage is not legally binding only comes to light at the end of the relationship, when one party is seeking to leave and perhaps evade the protective mechanisms that marriage is meant to create. </p>
<h2>Call for a celebrant system</h2>
<p>To solve this problem, I suggest that the law is changed to introduce a celebrant-based marriage system, and that the requirement to marry in a prescribed building is removed. This two-fold simplification would allow couples to marry as they wish, wherever they wish, in a single ceremony. This would eliminate future unregistered marriages by placing the responsibility of marriage registration on a single professional person – the celebrant. I would argue that the celebrant could be from any recognised religious group.</p>
<p>In Scotland, which <a href="http://www.gla.ac.uk/schools/socialpolitical/research/economicsocialhistory/historymedicine/scottishwayofbirthanddeath/marriage/">has</a> a celebrant system, the marriage ceremony does not need to follow a particular form, giving a couple freedom of choice when it comes to the language the ceremony is conducted in. The Scottish system, while not perfect, does not stipulate a prescribed building either, meaning couples are able to marry anywhere, including private homes. It is this combination that allows virtually all couples to marry in a way that suits their personal needs. I think removing the prescribed place of marriage in England and Wales would be a positive start to reducing the issue of unregistered marriages. A celebrant system would also place the burden of compliance with pre-marriage formalities on a professional celebrant, rather than the couple. </p>
<p>If incorporated in England and Wales, such measures would give the best platform for Muslims – and other minorities – to engage with the legal system and would hopefully lead to a reduction in the number of unregistered marriages, and the injustices suffered as a result. For example, some Muslim women have been treated as strangers by their husbands despite having a long relationship, while others have been <a href="http://www.familylawweek.co.uk/site.aspx?i=ed98292">left with no money</a> after marriage breakdown.</p>
<p>Updating the law of marriage is now a pressing requirement and will ensure genuine equality before the law. The rights and obligations arising from the institution of marriage should be provided to all who seek it.</p><img src="https://counter.theconversation.com/content/73943/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vishal Vora does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The case for changing English marriage laws.Vishal Vora, Teaching Fellow, Law, SOAS, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/603012016-06-02T01:00:55Z2016-06-02T01:00:55ZWhy are fewer people getting married?<figure><img src="https://images.theconversation.com/files/124871/original/image-20160601-2812-cyhr37.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Maybe we should just live together...</span> <span class="attribution"><span class="source">Rejected proposal via www.shutterstock.com</span></span></figcaption></figure><p>June kicks off the <a href="http://www.huffingtonpost.com/news/wedding-season/">U.S. wedding season</a>. Whether you love nuptials or hate them, an astounding trend is occuring: fewer couples are tying the knot.</p>
<p>The number of U.S. marriage ceremonies <a href="http://www2.census.gov/library/publications/2004/compendia/statab/124ed/tables/vitstat.pdf">peaked in the early 1980s</a>, when almost 2.5 million marriages were recorded each year. Since then, however, the total number of people getting married has fallen steadily. Now only about <a href="http://www.cdc.gov/nchs/nvss/marriage_divorce_tables.htm">two million marriages</a> happen a year, a drop of almost half a million from their peak. </p>
<p>As a result, <a href="http://www.census.gov/hhes/families/data/adults.html">barely more than half</a> of adults in the U.S. say they’re living with a spouse. It is the lowest share on record, and down from 70 percent in 1967. </p>
<p>What’s behind this trend? Is marriage becoming obsolete? Why should we care? </p>
<h2>Marriage rates are dropping too</h2>
<p>The drop in marriages is even more dramatic when the rapid growth in the U.S. population is taken into account. In fact, the marriage rate is the lowest in at least 150 years.</p>
<p>The figure below shows the <a href="http://www.cdc.gov/nchs/data/series/sr_21/sr21_024.pdf">number of marriages per 1,000 people for the last century</a> and a <a href="http://www2.census.gov/library/publications/2004/compendia/statab/124ed/tables/vitstat.pdf">half</a>. It does not matter if it is a person’s first, second or even third marriage. The rate simply tracks the number of weddings that occurred adjusted by the population.</p>
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<p>In the late 1800s, about nine out of every 1,000 people got married each year. After rising in the early 1900s through World War I, the marriage rate plummeted during the Great Depression, when fewer people were able to afford starting a family. The rate shot up again at the end of World War II as servicemen returned home, eager to get hitched and have babies.</p>
<p>But since the early 1980s, the marriage rate has steadily dropped until it leveled off in 2009 at about seven per 1,000. </p>
<h2>A global trend</h2>
<p>It’s not just the U.S. where this is happening. </p>
<p>The <a href="http://www.un.org/esa/population/publications/WMD2008/WP_WMD_2008/Data.html">United Nations gathered data</a> for roughly 100 countries, showing how marriage rates changed from 1970 to 2005. Marriage rates fell in four-fifths of them.</p>
<p>Australia’s marriage rate, for example, fell from 9.3 marriages per 1,000 people in 1970 to 5.6 in 2005. Egypt’s declined from 9.3 to 7.2. In Poland, it dropped from 8.6 to 6.5.</p>
<p>The drop occurred in all types of countries, poor and rich. And it clearly wasn’t based on geography, since one of the biggest declines occurred in Cuba (13.4 to 5), while one of the biggest increases occurred in the neighboring island of Jamaica (4.9 to 8.7).</p>
<p>Among countries that experienced a reduction, the average rate fell from 8.2 marriages per 1,000 to just 5.2, which is an even lower rate than what the U.S. is now experiencing. </p>
<h2>Why has the drop occurred?</h2>
<p>The <a href="http://www.businessinsider.com/causes-of-low-marriage-rates-2014-5">range of culprits</a> is quite large. </p>
<p>Some blame widening U.S. <a href="http://www.sciencedirect.com/science/article/pii/S0094119002005181">income and wealth inequality</a>. Others point the finger at the fall in <a href="https://www.commonwealmagazine.org/decline-catholic-marriages">religious adherence</a> or cite the increase <a href="https://www.russellsage.org/publications/decline-marriage-among-african-americans">in education</a> and <a href="http://link.springer.com/article/10.2307/2060761">income of women</a>, making women choosier about whom to marry. Still others focus on <a href="http://link.springer.com/article/10.1007/s13524-014-0333-6">rising student debt</a> and rising housing costs, forcing people to put off marriage. Finally some believe marriage is simply an <a href="http://national.deseretnews.com/article/15240/most-americans-think-their-own-marriage-is-better-than-others-deseret-news-byu-survey-finds.html">old, outdated tradition</a> that is no longer necessary.</p>
<p>But given that this is a trend happening across the globe in a wide variety of countries with very different income, religious adherence, education and social factors, it’s hard to pin the blame on just a single culprit.</p>
<h2>Don’t blame the government</h2>
<p>Moreover, this drop in marriages is not occurring because of adverse legal or public policy changes. Governments across the globe continue to provide incentives and legal protections that encourage marriage.</p>
<p>For example, the U.S. federal government has <a href="http://www.gao.gov/new.items/d04353r.pdf">over 1,000 laws</a> that make special adjustments based on marital status. Many of these adjustments allow married couples to <a href="http://www.bankrate.com/finance/money-guides/how-marriage-impacts-your-taxes-1.aspx">get preferential tax treatment</a> and <a href="http://money.usnews.com/money/retirement/articles/2014/03/10/how-marital-status-affects-retirement-benefits">more retirement benefits</a>, and bypass <a href="http://www.telegraph.co.uk/finance/personalfinance/tax/10745009/The-desperate-tactics-being-used-to-avoid-inheritance-tax.html">inheritance laws</a>.</p>
<p>Moreover, government legalization of <a href="http://www.bbc.com/news/world-us-canada-33290341">same-sex marriages</a> around the <a href="http://www.pewforum.org/2015/06/26/gay-marriage-around-the-world-2013/">world</a> has boosted the number of individuals able to enter into legally sanctioned unions. </p>
<p>While legalizing same-sex marriages has <a href="https://www.washingtonpost.com/news/the-fix/wp/2015/04/28/heres-how-many-gay-marriages-the-supreme-court-could-make-way-for/">boosted the number of marriages</a>, this increase has not been enough to reverse the declining trend.</p>
<h2>Is it a switch to cohabiting?</h2>
<p><a href="http://www.jstor.org/stable/352997">Another popular explanation</a> for why fewer people are getting married is that <a href="http://www.cdc.gov/nchs/data/nhsr/nhsr092.pdf">more couples prefer to live together</a> informally, known as cohabitation. </p>
<p>It is true that the <a href="http://www.nbcnews.com/health/new-normal-cohabitation-rise-study-finds-1C9208429">percentage of people living with a partner</a> instead of marrying has risen over time. In 1970 just half-of-one-percent of all adults were cohabiting in the U.S. Today the figure is 7.5 percent.</p>
<p>However, this trend fails to explain the whole story of falling marriage rates. Even when we combine the share of adults who are married with those who are cohabiting, <a href="http://www.census.gov/hhes/families/data/adults.html">the picture still reveals</a> a strong downward trend. In the late 1960s, over 70 percent of all U.S. adults were either married or cohabiting. The most recent data show less than 60 percent of adults are living together in either a marriage or cohabiting relationship.</p>
<p>This means over time, a smaller percentage of people are living as a couple. The number of people living alone, without a spouse, partner, children or roommates has almost doubled. The number of people living by themselves in the U.S. was less than 8 percent in the late 1960s. Today’s it’s almost 15 percent.</p>
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<h2>Costs and benefits of marriage</h2>
<p>So why have marriage rates declined <a href="http://www.un.org/en/development/desa/population/publications/pdf/popfacts/PopFacts_2011-1.pdf">around the world</a>, while the number of people living on their own has exploded? In my mind, the <a href="http://businessmacroeconomics.com/">simple answer</a> is that for more people, the current costs of marriage outweigh the benefits. </p>
<p>The <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=500887">benefits of marriage</a> are numerous and well-known. Researchers have linked marriage to better outcomes for children, less crime, an <a href="http://gerontologist.oxfordjournals.org/content/38/5/618.short">increase in longevity</a> and happier lives, among many factors. My own research revealed that <a href="http://jos.sagepub.com/content/41/4/406.short">marriage is associated with more wealth</a>.</p>
<p>Nevertheless, as <a href="http://www.journals.uchicago.edu/doi/abs/10.1086/260084">Gary Becker</a> pointed out in his widely used theory of marriage, these benefits don’t come for free. Marriage is hard work. Living with someone means taking into account another person’s feelings, moods, needs and desires instead of focusing just on your own. This extra work has large time, emotional and financial costs.</p>
<p>While decades ago many people believed the benefits of marriage outweighed these costs, the data around the world are clearly showing that more people are viewing the benefits of being married, or even cohabiting, as much smaller than the costs.</p>
<h2>Why do we care?</h2>
<p>As the wedding season takes hold, I have already been invited to a few nuptials, so it is clear marriage is not actually becoming obsolete.</p>
<p>Society today is geared toward couples. However, if the trends continue, then the growing number of single people will presumably begin to exert political pressure to eliminate the laws that favor and reward marriage and implicitly discriminate against them. </p>
<p>The question is: how large will this policy shift be and how soon until it occurs?</p><img src="https://counter.theconversation.com/content/60301/count.gif" alt="The Conversation" width="1" height="1" />
Marriage rates have been falling for decades and are now at their lowest in at least 150 years. What’s wrong with getting hitched?Jay L. Zagorsky, Economist and Research Scientist, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/491732015-10-15T12:16:28Z2015-10-15T12:16:28ZSupreme Court decides that ‘fraud unravels all’ in divorce cases<p>The <a href="http://www.theguardian.com/law/2015/oct/14/women-right-reopen-divorce-settlements-supreme-court">UK Supreme Court has ruled</a> that if a divorcing spouse lies about his or her assets, the financial aspect of the divorce can be reconsidered. Before now, spouses could deliberately and fraudulently mislead the court on divorce with rarely any consequence – provided their lies came to light after a financial order had been made. That is why this Supreme Court decision is so significant. </p>
<p>When a marriage breaks down, it is common for spouses to reach an agreement about how their finances will be divided up, and the agreement is embodied in a court order, known as a consent order. This means that the agreement is sealed by the court, and once this happens it is extremely difficult to have it reopened. Before the Supreme Court decision, this was even the case when assets had been fraudulently concealed.</p>
<p>For instance, if I got a new job and a pay rise, I could have hidden this from my wife, led her to believe I had less earning capacity than I really did, and on divorce make a financial agreement much more in my favour than hers. I would have had full knowledge of our finances, while my wife would not, which would provide me with significantly more bargaining power when reaching an agreement. </p>
<p>In this scenario, it is unlikely that the court would have invalidated the consent order. Even though I had a duty to make full and frank disclosure of my assets, the court must have also found that my non-disclosure would have made a <a href="http://www.bailii.org/uk/cases/UKHL/1984/3.html">material difference</a> to the agreement. Put simply, the judge must have been convinced that if I had not lied, the financial award made to my wife would be completely different. This can be very hard to prove.</p>
<p>This example mirrors the circumstances of <a href="http://www.familylawweek.co.uk/site.aspx?i=ed24584">real cases</a> concluded before yesterday’s Supreme Court decision. But if wealthy spouses in such cases could lie and get away with it, then <a href="http://www.ibtimes.co.uk/supreme-court-landmark-hearing-begins-over-fraud-divorce-settlements-1505010">as some lawyers have argued</a>, there would be little incentive for spouses to be transparent. </p>
<h2>The Supreme Court cases</h2>
<p>In a judgment on October 14, the Supreme Court ruled on two cases which make it easier for misled spouses to have their financial settlement revisited. In the first case, <a href="https://www.supremecourt.uk/cases/docs/uksc-2014-0200-judgment.pdf">Gohil v Gohil</a>, the wife sought to reopen the financial element of her divorce proceedings after discovering that her husband had lied about his assets. His lies were exposed whilst he was being prosecuted in criminal court for money laundering.</p>
<p>In the second case of <a href="https://www.supremecourt.uk/cases/docs/uksc-2014-0074-judgment.pdf">Sharland v Sharland</a>, Alison Sharland challenged the financial award she received on divorce after discovering that her husband, Charles Sharland, had knowingly misled her as to the value of shares in his software business. He claimed they were worth £47m when the real value of the shares was estimated at approximately £600m. </p>
<p>The lower courts in the Sharland case decided that the husband’s fraud would not change the financial provision made to the wife, because in hindsight it did not make a material difference. But in the Supreme Court, Baroness Hale of Richmond said that the focus should be on whether the fraud would have affected the outcome at the time of the original agreement. </p>
<p>The judgment also said the lower courts were wrong to ignore the fact that the husband’s fraud prevented the wife from properly consenting to the original division of assets. As a result, in both the Sharland and Gohil cases the wife was permitted to have her financial award reconsidered by the court.</p>
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<h2>A misplaced concern for opened floodgates</h2>
<p>Reports of this case have overwhelmingly focused on the possibility that the Supreme Court’s decision <a href="http://www.independent.co.uk/news/uk/home-news/supreme-court-ruling-in-favour-of-ex-wives-renegotiating-divorce-settlement-may-open-floodgates-a6693521.html">will lead to many more divorce settlements being reopened</a>. Whether this is true or not, these fears indicate a real problem with attitudes towards financial provision on divorce. </p>
<p>It is quite remarkable that <a href="http://www.mirror.co.uk/money/thousands-could-now-due-more-6631869">some newspapers</a> are more outraged by Alison Sharland’s financial award than by her husband’s outright deception. One reason for this might be that Alison Sharland received more than £10m in her original settlement, a spectacular sum of money by anyone’s assessment. But no-one is criticising Charles Sharland’s share of the assets, and he was left with £600m worth of shares. </p>
<p><a href="http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465984">There is a misconception</a> that the £600m in shares and the sum of £10 million “belong” to Charles Sharland. In reality, it is unlikely that this wealth would have been generated without Alison Sharland’s work in the home. She was primary carer of three children (one of whom requires lifelong care) throughout the couple’s 17-year marriage, enabling Charles Sharland to build his career. These non-financial contributions must be recognised. </p>
<p>So we should be celebrating that the outcomes in the two cases makes the homemaker less vulnerable to the concealment of assets, not fearing the “floodgates” of divorce cases may open. The Supreme Court has sent out a clear message: spouses need to be open and transparent with each other on divorce, or they could regret it in future.</p><img src="https://counter.theconversation.com/content/49173/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sharon Thompson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Spouses can no longer get away with lying about their assets in divorce cases.Sharon Thompson, Lecturer in Family Law, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/431702015-06-12T01:04:03Z2015-06-12T01:04:03ZState view won’t change marriage in eyes of a man and woman’s God<figure><img src="https://images.theconversation.com/files/84780/original/image-20150612-11430-2erf4e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The sacrament of marriage that takes place in the eyes of God is a separate process from the state's legal recognition of the coupling.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-40131631/stock-photo-bride-and-groom-are-holding-each-other-s-hands-during-church-wedding-ceremony.html?src=05E-UCx_b5OBSILljd53GQ-1-4">Shutterstock/MNStudio</a></span></figcaption></figure><p>Some married Christians are apparently so appalled at the prospect of same-sex marriage they will actually seek a divorce if it comes to pass.</p>
<p>The latest “protest” against legalising same-sex marriage was publicised in <a href="http://citynews.com.au/2015/gay-law-change-may-force-us-to-divorce/">an article</a> by <a href="http://www.lachlanmacquarieinternship.org.au/staff.aspx">Nick Jensen</a>, director of the Lachlan Macquarie Institute and former ACT director of the <a href="http://www.acl.org.au/about/">Australian Christian Lobby</a>.</p>
<p>Jensen, who has been married to his wife Sarah for ten years, explained the couple’s motivation in these terms:</p>
<blockquote>
<p>When we signed the contract 10 years ago we made a contract with the state about what marriage is, which was husband and wife, fundamental order of creation, part of God’s intimate story for human history, man and woman for the sake of children.</p>
<p>So if the state then goes and changes the terms of that contract, then that’s something we can no longer partake in, it makes the contract null and void essentially.</p>
</blockquote>
<p>Jensen’s remarks are nothing if not melodramatic, but they do give expression to the anxieties many people of faith experience around same-sex marriage. While not necessarily inspiring the same response, Jensen’s sentiments will no doubt resonate with many who see the world through the lens of a scriptural fundamentalism.</p>
<p>But people of faith have nothing to be concerned about. This might seem glib in the mouth of an unbeliever, but I mean it very emphatically.</p>
<h2>Religious ceremony precedes state law</h2>
<p>As most religious people would agree, marriage has been around for a long time. Maybe not from time immemorial, but it’s still very old. Importantly (so far as the present debate is concerned), marriage is older than the modern regulatory state as we know it.</p>
<p>Marriage was practised long before legislatures and civil servants were in the business of drafting and passing statutory codes, or defining words for legal purposes. When parliaments define words, they do so for strictly legal purposes to meet the demands of their citizenry. </p>
<p>The law is not interested in rites of passage, secular or otherwise. But it is concerned when rights and responsibilities are generated by social practices. Some of these practices may be rites of passage.</p>
<p>So what is at stake here? Certainly not marriage as practised for millennia across time zones and cultures. That could never change at the stroke of a pen. If marriage changes at all, it will change the way all sacraments and rites of passage change with time – in ways determined by the cultural forces at work in the very communities from which those practices first sprang.</p>
<p>Humanity has a long history, and also a long list, of rites of passage. Probably all of them started out with some investiture of the sacred. Some would eventually lose their claim to explicitly religious significance.</p>
<p>Today we have a happy mixture of sacred and secular milestones in our life-journeys. Some of them retain their sacred significance at the same time as they are celebrated by those without religious faith. Familiar milestones include birth, baptism, birthdays, starting school, bar/bat mitzvah, communion, puberty, graduation, adulthood, driving a car, first love, first job, marriage, buying a home, having a child and so on.</p>
<p>Some people might wish to interpret every one of these milestones in sacramental or at least spiritual terms. Others would prefer not to see any of them in such a light.</p>
<h2>State regulates rights and responsibilities</h2>
<p>Marriage is no different. As far as the state is concerned, however, the question is whether rights and responsibilities generated by that practice merit <a href="http://www.ag.gov.au/familiesandmarriage/marriage/pages/gettingmarriedinaustralia.aspx">statutory regulation</a>.</p>
<p>The role of the state in legislating for marriage is essentially the same as its role in legislating for drivers. In each case a social practice gives rise to rights and responsibilities, and the state must legislate in ways that meet the demands of all of its citizens in respect of that practice.</p>
<p>Some lament the role of the state in issuing marriage certificates at all. But clearly so long as we have states and so long as Australia wants to continue being a liberal democratic state, our definition of marriage cannot in fairness exclude from its purview a group of persons on the basis of their sexuality.</p>
<p>The law doesn’t regulate <a href="http://www.mn.catholic.org.au/catholic-faith/sacraments/baptism">baptismal rites</a> as such. The law of negligence and/or the criminal law will certainly have something to say about a pastor who keeps a believer <a href="http://www.dailymail.co.uk/news/article-1298129/Baby-dies-minutes-immersed-times-baptism.html">submerged for a few moments too long</a>, but the law does not concern itself with baptism as a social practice. To the extent that some laws extend to <a href="http://www.planetdeb.net/spirit/ndeshamn.htm">baptismal situations</a>, I’ve never heard any Christian complain. If a Baptism Act allowed pet animals to undergo the rite, this would not affect how traditional Christians understood baptism.</p>
<p>On the other hand, the law rightly does have something to say about those wishing to enter a formal coupling arrangement for life. This sets up a host of rights, privileges and obligations that call for the law’s protection and enforcement.</p>
<h2>Distinguishing between statutes and sacraments</h2>
<p>So, to return to the question, just what is at stake in this debate? Many religious people seem to think that parliament would be attempting the fundamental alteration of a social practice. But that’s not what this debate is about.</p>
<p>The only thing that would change would be the statutorily prescribed definition of a word serving for legal purposes. Those purposes have to do with the state’s business of affording recognition and protection regarding a prevalent social practice (namely, that of forming lifelong coupling bonds).</p>
<p>We don’t need a separate category for same-sex marriages, for that would be to assume that traditional marriage is changing. It isn’t, any more than the essential character and significance of baptism changed for different Christian denominations when the <a href="http://www.lawhandbook.sa.gov.au/ch29s05s01.php">law of negligence</a> emerged in its modern form in the early 20th century.</p>
<p>Nothing could be further from the truth than the suggestion the Jensens’ marriage amounted to a contract with the state ten years ago. Rather, and as Jensen himself seems to appreciate, they made a solemn vow before their god and to each other.</p>
<p>The state merely afforded their coupling legal recognition and protection. Their sacrament predates the Australian parliament’s powers to bestow such recognition.</p>
<p>Christ’s own injunction is apt: render unto Caesar the things that are Caesar’s. Marriage as a religious rite of passage is not one of them.</p><img src="https://counter.theconversation.com/content/43170/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Zerilli does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The sacrament of marriage does not depend on the law, which exists only to regulate the rights and responsibilities arising from the practice. For religious believers, same-sex marriage won’t change their union.John Zerilli, Tutor in Law and Philosophy, PhD Candidate, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/308002014-08-22T05:14:34Z2014-08-22T05:14:34ZFirst stats show no stampede down the aisle for same-sex couples<p>The first statistics on same-sex marriages in England and Wales show a disappointing take-up in the three months since the right to marry was extended to lesbian and gay couples.</p>
<p>According to figures released by the <a href="http://www.ons.gov.uk/ons/rel/vsob1/marriages-in-england-and-wales--provisional-/for-same-sex-couples-q1-and-q2-2014/sty-same-sex-marriages.html">Office for National Statistics</a>, just 1,409 same-sex couples were married in England and Wales from the end of March to the end of June 2014. This is a relatively low number in comparison to the 7,000 or so couples across the UK who entered into civil partnerships in the same period of time after they were first made available in 2005.</p>
<p>More seismic statistics might have been expected, given the political storm that surrounded the 2013 act that sanctioned same-sex marriage and the impact it was predicted to have on society – apocalyptic or utopian, depending on your point of view.</p>
<p>So why have relatively few lesbian and gay couples decided to tie the knot this year? First, civil partnerships got there first and offer pretty much all of the rights and entitlements that go with marriage. A significant proportion of couples that might have chosen to get married are already in civil partnerships so many might not feel the need. They will also have the option of converting their civil partnerships to marriages from December 10 this year and it will be interesting to see how many take up this option. The figures on conversions to marriage are likely to give us a much better idea of how popular marriage will be for lesbian and gay couples, though we won’t have the full picture on this until next year. </p>
<p>Equally, the government’s decision to keep civil partnership as an option for same-sex couples alongside marriage means that some gay and lesbian couples are opting for civil partnerships rather than marriage, though again the statistics on this won’t be available for some time. Same-sex couples now enjoy an advantage over opposite-sex couples in that they can choose between marriage or civil partnership, whereas heterosexual couples can only choose between marriage or cohabitation as an option offering relatively few legal protections.</p>
<p>The government’s position on religious same-sex marriages may also have affected uptake. Those who see marriage as an expression of their religious faith are unlikely to be attracted to a purely civil ceremony. Similarly, there will be lesbian and gay couples who see marriage as an unattractive option that is grounded in outdated, even oppressive ideas around gender and sexuality. Some of these couples might prefer civil partnerships as an option. They might see it as a blank page, something they can invent for themselves that is free of the cultural and social baggage they associate with marriage.</p>
<p>It’s still a little early to say if same-sex marriage has turned out to be a damp squib. Longer term data on <a href="http://www.ons.gov.uk/ons/rel/vsob2/civil-partnership-statistics--united-kingdom/index.html">civil partnerships</a> show that take-up has been much higher than initial forecasts, with over 60,000 partnerships formed since 2005. This demonstrates significant demand for the social and legal recognition available to lesbian and gay couples and points to a brighter future for same-sex marriage than these early statistics suggest.</p>
<p>The historical exclusion of same-sex couples from the social institution of marriage conveyed a powerful message about their low social status, marginalisation and exclusion. My research with lesbian and gay couples shows that the true impact of marriage and civil partnership is to be seen in the longer term, in the difference that these forms of recognition make to their daily lives.</p>
<p>As well as providing important legal rights, marriage and civil partnership provide opportunities for lesbian and gay couples to be acknowledged as a couple by family, friends and those around them. Irrespective of today’s statistics, marriage equality is an important policy development that we should all welcome.</p><img src="https://counter.theconversation.com/content/30800/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mike Thomas receives funding from the ESRC. He is a member of the Labour Party.</span></em></p>The first statistics on same-sex marriages in England and Wales show a disappointing take-up in the three months since the right to marry was extended to lesbian and gay couples. According to figures released…Mike Thomas, Lecturer in the School of Sociology, Social Policy and Social Research, University of KentLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/178272013-10-19T07:05:05Z2013-10-19T07:05:05ZPutting an end to forced marriage in Australia<figure><img src="https://images.theconversation.com/files/31450/original/7j6pp4wc-1379393579.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Recent cases show Australia is not immune to forced marriage practices.</span> <span class="attribution"><span class="source">Anti-slavery Australia.</span></span></figcaption></figure><p>According to Human Rights Watch, <a href="http://www.hrw.org/news/2013/06/14/q-child-marriage-and-violations-girls-rights">14 million girls</a> are married, worldwide, each year - with some as young as eight or nine. While early and forced marriage appears most prevalent in countries of Africa, Asia and the Middle East, several recent cases have shown Australia is not immune to the practise.</p>
<p>If the global trend continues, Human Rights Watch <a href="http://www.hrw.org/news/2013/06/14/q-child-marriage-and-violations-girls-rights">estimates</a> that 142 million children will be married by 2020. </p>
<h2>Snapshot of Australia</h2>
<p>There is no Australian research on the prevalence of forced marriage but the issue was brought to the fore following several recent high-profile family court cases. </p>
<p>A 2010 case involving a 13 year-old Victorian girl began when her school alerted the state’s child protection service that she was not attending school. The school suggested the girl’s absence may be due to her parents preparing her for marriage to a fiance they had chosen for her – a 17 year-old living overseas. </p>
<p>Consequently, the Department of Human Services initiated proceedings in the Family Court that eventually resulted in the court ordering the girl not be removed from Australia before she turned 18. The court also <a href="http://www.familycourt.gov.au/wps/wcm/resources/file/ebac534c405d5c6/Family%20Court%20Bulletin_December2010_rtf.htm">ordered</a> that her passport be surrendered, that her parents be restrained from applying for another passport on her behalf and that her name be placed on the Australian Federal Police watchlist until her 18th birthday. </p>
<p>The next year, another <a href="http://guides.sl.nsw.gov.au/content.php?pid=316240&sid=2587941">prominent case</a> came before the family court. The girl (known as Ms Kreet) had just finished year 12 and had a boyfriend (known as “Mr U”) who lived in Australia. Ms Kreet’s parents told her she was to travel to their home country to marry Mr U there. But they deceived her and had another man in mind. </p>
<p>The court heard that on arrival, Ms Kreet was introduced to the man her parents had secretly chosen to be her husband. Her father told Ms Kreet that if she did not acquiesce to the marriage, he would have her boyfriend’s sisters and mother kidnapped and raped. Ms Kreet consented and the marriage took place. </p>
<p>But when Ms Kreet returned to Australia, she withdrew a visa application for her husband and applied to the Family Court for an annulment. </p>
<p>The court accepted that Ms Kreet believed that her father would carry out his threat and said that at the time of the marriage ceremony, Ms Kreet’s consent was not real because it had been obtained through duress. The court declared that the marriage was not a valid marriage and that the marriage was void.</p>
<h2>Australian law reform</h2>
<p>The latter case illustrates how coercion can overbear full and free consent to a marriage. When deciding Ms Kreet’s case, Judge Cronin concluded:</p>
<blockquote>
<p>If a cultural practice relating to a marriage gives rise to the overbearing of a mind and will so that it is not a true consent, the cultural practice must give way. </p>
</blockquote>
<p>Acknowledging emerging concerns about forced marriage in Australia, the Commonwealth government released a <a href="http://www.ag.gov.au/Consultations/Documents/Consultationonforcedandservilemarriage/Discussion%20Paper%20for%20Public%20Release%20forced%20and%20servile%20marriage.pdf">discussion paper on forced and servile marriage in Australia</a> in 2010 and called for submissions from community groups to inform potential reform. </p>
<p>Then, on March 8 this year, <a href="http://www.comlaw.gov.au/Details/C2013A00006">legislation passed</a> to specifically outlaw the practice. The amendment created new offences relating to slavery and slave-like practices including forced marriage. </p>
<p>Under the Act, a marriage is a forced marriage if – because of the use of coercion, threat or deception – one party to the marriage entered into the marriage without freely and fully consenting.</p>
<h2>Next steps</h2>
<p>Since the new law came into effect, there has been considerable community interest in the area of forced marriage; engagement in outreach and writing multilingual materials to raise awareness of the law. </p>
<p>In one such innovative program, the Victorian Immigrant Refugee Women’s Coalition (VIRWC) designed a <a href="http://www.theage.com.au/lifestyle/life/push-to-train-teachers-to-help-deter-forced-marriages-20130903-2t39n.html">new campaign</a> for high school students called The Choice is Yours. The coalition is calling for training about the indicators of forced marriage among teachers, doctors and community workers.</p>
<p>The law is one part of a holistic and effective social response. But it’s also essential that comprehensive support services for those in forced marriage are available and that resources are put into community-based services and education to explain the law. </p>
<p>In the 2010 case, the court had the power to prevent the girl leaving Australia, but such protective powers cease when the person turns 18. In the United Kingdom, civil protection orders are available regardless of the age of the applicant. </p>
<p>This would be the next step to ensure those in forced marriage have all the support they need and can choose the extent that they wish to engage in legal processes.</p><img src="https://counter.theconversation.com/content/17827/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Burn is director of Anti-Slavery Australia, which has received an Australian government grant to develop an e-learning training program about slavery and slavery-like practices including forced marriage.</span></em></p>According to Human Rights Watch, 14 million girls are married, worldwide, each year - with some as young as eight or nine. While early and forced marriage appears most prevalent in countries of Africa…Jennifer Burn, Associate Professor, Faculty of Law and Director of Anti-Slavery Australia, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.