The Marriage (Same Sex Couples) Act 2013 (MSSCA) received Royal Assent on 17 July 2013. Despite the furore accompanying its passage through Parliament, MSSCA comprises a modest 21 sections and 7 schedules. Only sections 15, 16 and 21 came into force on 17th July 2013. Sections 15 and 16 do little to bring about same sex marriage other than trigger a mandatory statutory review of survivor benefits under occupational pension schemes and a review of the legislation governing civil partnerships. The remaining provisions of the Act will come into force at a yet still unknown future date by order of the Secretary of State, we are to understand sometime next spring.

The elements of MSSCA likely to be of most importance to private client practitioners are those relating to or affecting existing and future private legal instruments (eg wills, trust deeds and instruments governing charities). Of particular relevance will be the measures dealing with:

1. The interpretation of existing legislation (section 11 and Part 1 of Schedule 3)
2. The interpretation of new legislation made after the passing of MSSCA (section 11 andPart 2 of Schedule 3)
3. The interpretation of private legal instruments existing before the relevant provisions of MSSCA come into force (section 11 and Part 1, Schedule 4).
4. The interpretation of new private legal instruments made after the relevant provisions of MSSCA come into force (section 11).
5. The statutory limit to the measures providing for the equivalence of marriage (Part 7, Schedule 4).
6. The conversion of civil partnership to marriage (section 9)
7. Change of gender of married persons or civil partners (section 12 and Schedule 5)
8. The common law presumption of legitimacy of a child born to a married woman (section 11 and Part 2, Schedule 4)
9. Divorce, annulment, matrimonial proceedings and pensions (Schedule 4)

1. Interpreting Existing Legislation

Existing statutory references to:

• Marriage
• A married couple
• A person who is married
• Persons who are not married but are living together as a married couple
• A person who is living with another person as if they were married

must be read as encompassing the concept of same sex marriage, as must references to a marriage that has ended. For example, the appropriate nomenclature used to describe a woman who’s marriage to another person has ended when that other person died is ‘widow’ regardless of whether the deceased spouse was a man or a woman.

Where existing legislation deals differently with:

• a man and a woman living together as if married; and
• two men or two women living together as if civil partners

MSSCA will treat two men or two women who are living together as if married as if they were living together as civil partners (preserving the current effect of the legislation for same sex couples despite the introduction of same sex marriage) (paragraph 3, Part 1, Schedule 3)

I.e. A same-sex couple currently living together as if in civil partnership will not automatically be treated as living together as if married simply because the relevant provisions of the Act that allows for same sex marriage have come into force.

2. Reference to Marriage in New Legislation

In legislation enacted after MSSCA, “husband” will include a man married to another man, “wife” will include a woman married to another woman, “widower” will include a man whose marriage to another man ended with the other man’s death and “widow” will include a woman whose marriage to another woman ended with the other woman’s death (paragraph 5, Part 2, Schedule 3).

3. Interpreting Existing Private Legal Instruments

Private legal instruments made before section 11 comes into force and including wills, trust deeds and instruments governing charities are not affected by the introduction of same sex marriage (paragraph 1, Part 1, Schedule 4).

In the absence of express definitions, a reference in a will to “marriage“, executed prior to section 11 coming into force, will be to an opposite sex marriage only and reference in a trust deed to a “widow” will be confined solely to a woman whose marriage to a man has ended on that man’s death.

4. Interpreting New Private Legal Instruments

Private instruments executed after section 11 comes into force will be read as including a same sex marriage unless the terms of the instrument specify otherwise.

5. Limiting Equivalence of Marriage

This is a very interesting provision. To bring about equivalence between same sex and opposite sex marriage, the legislation enacts two broad-brush measures which provide for the equivalence of all marriages, whether same or opposite sex, (‘the equivalence provisions’):

Section 9(6)(b), provides that a marriage converted into a civil partnership is treated as having existed since the date on which the civil partnership was formed.

A wrinkle that arises from transforming marriage from a heterogeneous institution to one that is gender neutral is that we will still use gender specific nomenclature to describe the spouses. A surviving spouse where one party to a marriage dies is either a widow or a widower. Prior to MSSCA a widow must as a matter of law have been married to a man. Following MSSCA a widow could be either the surviving female spouse of a same or opposite sex marriage.

The example given in the explanatory notes to the Act give the following example of why this provision is necessary. Say a widow has a statutory entitlement to a particular benefit. Under the first of the equivalence provisions, above, that benefit would be available to a female survivor of a same sex couple whose spouse had died (whether male or female). However, a man whose wife had died would not be entitled to the benefit. A man in such a position would be a widower not a widow. Such a result would run counter to the object of the legislation because a man in such a position would not be treated as being in an equivalent position to a surviving spouse of an all female marriage.

To iron out this wrinkle and to avoid the equivalence provisions having unforeseen consequences that might run counter to the policy behind MSSCA, paragraph 27(3)(b) of Schedule 4 provides a safety valve that allows the Secretary of State to order that certain legislative measures be subject to a contrary provision which overrides the equivalence provisions. I.e. a power to derogate from the principle of equivalence.

6. Conversion of Civil Partnership to Marriage

Section 9 allows couples who have formed civil partnerships in England and Wales to convert their civil partnership to a marriage. Upon conversion, the resulting marriage is backdated as having been commenced from the date on which the civil partnership was formed.

Section 9 also gives the Secretary of State a power to provide for a procedure for the conversion into marriages of civil partnerships formed outside the United Kingdom. Powers relating to marriage are devolved to Scotland and Northern Ireland. However MSSCA does not provide for the conversion into a marriage of a Scottish or Northern Irish civil partnership that was formed in another jurisdiction.

 7. Change of gender of married persons or civil partners:

Section 12 and Schedule 5 provide that an existing marriage (under the law of England and Wales or a country or territory outside the UK) will be able to continue where one or both parties change their legal gender and both parties wish to remain married.

An existing civil partnership (under the law of England and Wales) will be able to continue where both parties change their legal gender simultaneously and wish to remain in their civil partnership (you still can’t have a mixed gender civil partnership post MSSCA).

Currently, transsexual people who are married or in a civil partnership must end their marriage or civil partnership before a full gender recognition certificate (GRC) can be issued.

8. Presumption of legitimacy of a child born of a married woman

The introduction of same sex marriage does not extend the common law presumption of legitimacy of a child born of a mother in a same sex marriage.

This means that where a child is born to a woman during her marriage to another woman, the other woman will not be presumed to be the parent of the child by operation of the common law presumption of legitimacy. However, the other woman may be treated as the child’s parent as a result of the operation of another statutory provision. For example, if the other woman is treated as a parent as a result of paragraph 40 of Schedule 7 to MSSCA (which amends section 42 Human Fertilisation and Embryology Act 2008 to encompass recognition of same sex marriage).

9. Divorce, annulment, matrimonial proceedings and pensions

Schedule 4 to the Act sets out detailed provisions dealing with the extension of marriage to same sex couples in the following areas:

• Divorce and annulment of marriage (Part 3, Schedule 4)
• Matrimonial proceedings (Part 4, Schedule 4)
• State pensions (Part 5, Schedule 4)
• Occupational pensions and survivor benefits (Part 6, Schedule 4)

Adultery will be a factor that evidences the irretrievable breakdown of both same sex and opposite sex marriages, however – which seems somewhat odd given the emphasis placed on the concept of equivalence – adultery will remain defined as conduct between one party to the marriage and a person of the opposite sex (paragraph 3, Part 3, Schedule 4).

Non-consummation will not be a ground on which a same sex marriage is voidable (paragraph 4, Part 3, Schedule 4).

The provisions relating to adultery and non-consummation in the context of opposite sex couples remain unchanged.

Summary

Once the relevant provisions of MSSCA come into force, the law of England and Wales will change to the effect that ‘marriage’ will have the same effect in relation to same sex couples as it has it relation to opposite sex couples.

References to marriage in existing England and Wales legislation will be read as including marriage of a same sex couple (subject to any contrary provision made by order of the Secretary of State).

References to marriage and marriage-related terms in private legal instruments made AFTER the relevant provisions of MSSCA come into force will be read as encompassing same sex marriage unless the instrument provides otherwise. References to marriage and marriage-related terms in private legal instruments made BEFORE the relevant provisions of MSSCA come into force is preserved.

A civil partnership may be converted into a marriage and the resulting marriage is to be treated as having existed since the date on which the civil partnership was formed.

Known Unknowns

These changes prompt a number of thoughts and questions. For example, if marriage-related terms encompass same sex couples, it may be necessary to draft a will or trust deed to define particular terms so that they apply only to a same sex or opposite sex couple.

If a couple want to make provision for either marrying or entering into a civil partnership in the future, would a will made in expectation of both marriage and civil partnership be necessary and, if so, would it meet the requirements of sections 18(3) and 18B(3) of the Wills Act 1837 respectively? Currently the position is that a will will not be revoked in contemplation of either/or rather than both.

Another possible wrinkle might arises from s9(6) that treats a marriage that is converted from a civil partnership as having been commenced from the date on which the civil partnership commenced. If a will is drafted in contemplation of the couple entering a civil partnership and the couple later convert their civil partnership to a marriage, would that conversion have the effect of revoking the will that had been made in contemplation of their entering into a civil partnership before the relevant provisions of MSSCA came into force? In other words can a will be saved by section 18 in contemplation of a marriage that wasn’t legally possible at the time that the will was drafted?

I’ll be watching the content of the regulations that are required to bring the relevant provisions of MSSCA into effect for some answers. Watch this space…