DECEMBER 23rd 2005

I have put a question mark on the title here because I don't think it is sensible to use the word 'marriage' other than for the contract between a man and a woman. If we use the word marriage for other civil partnerships, we will have to invent a new word for the the solemnising of the contract between a man and woman which has as its aim an exclusive relationship (wherein bigamy is a crime in those cultures where polygamy is not expressly allowed) and the possibility of starting a family by the natural means of procreation. This sort of family arrangement, where the family trees and ancestral trees show the genetic relationship, and the forenames and family names usually also show continuity in one way or another, will no doubt continue as a widespread custom. To arbitrarily change the meaning of the word from its historical usage would not be helpful from a legal, historical or administrative and records standpoint.

Having cleared that up, I would like some clarification on the change in the the UK and other European laws which institute the new Civil Partnerships.


Policy background
7.1. The Act received Royal Assent on 18 November 2004. The purpose of the Act is to enable same-sex couples to obtain legal recognition of their relationship by forming a civil partnership. The Act also contains provisions enabling certain overseas same-sex relationships to be treated as civil partnerships. Civil partners will be subject to many of the same legal rights and responsibilities as spouses.

7.2. Two people may register as civil partners of each other provided:

• they are of the same sex;
• neither of them is already a civil partner or married;
• they are not within the prohibited degrees of relationship;
• they are both over the age of sixteen (and the consent of the appropriate persons has been obtained if either of the parties are under eighteen).

7.5. In relation to judicial pensions, the policy intention behind this Order is to fulfill the policy commitment given during the passage of the Act, and ensure that civil partners are treated in the same way as spouses. The Order seeks to fulfill this policy objective by including civil partners and their children in the provisions that give rise to dependents’ pensions of judicial office holders. The judicial scheme is amended so that any service in contracted out employment under the scheme from 6 April 1988 will give rise to contracted out civil partners benefits. The judicial scheme provides benefits in excess of contracted out rights; members with service before 5 December 2005 are given the choice whether to count all previous service for the purposes of calculating civil partners benefits at this higher level, at member cost. Any service in relation to service after 5 December 2005 will give rise to civil partners’ benefits, at member cost, at this higher level and members who form a civil partnership will pay the appropriate contribution in respect of any such service. This replicates the way in which widowers benefits were introduced into the scheme.

Perhaps, to avoid my having to read through piles of legal documents, somebody can answer the following questions:

1 In order to register for a CIVIL PARTNERSHIP within the above act, do the two people concerned have to have a sexual relationship?
2. If so, how is this relationship defined? Does it have to be "Consummated"? Does it have to be exclusive?
3. If an active sexual relationship is compulsory, what is the legal justification of giving privileged financial status on the grounds of e.g. buggery to cohabiting friends as opposed to two normal men living together and wishing to share their assets, home and (for example) responsibility for children from a previous marriage where the spouse is (for example) deceased?
4. If a sexual relationship is not compulsory to qualify for a Civil Partnership, why does anyone need to know of the private sexual behaviour of the partners?
5. If a sexual relationship is not compulsory, why cannot any two people who cohabit and live as a family register a Civil Partnership and gain the financial advantages?

Maybe there are perfectly good answers to all of the above which make perfect sense. It just seems odd to me that the questions have not been raised and answered in the media to my knowledge

DECEMBER 24th 2005
We have an answer - at least an interim one, and it seems I am right to be puzzled These questions cannot ALL be answered satisfactorily  Or rather they can all be answered, but since a sexual relationship appears to be irrelevant, the answer to 4 is "They don't" and to 5 is "Why not, indeed"
The following is from a solicitor whose name is removed to preserve anonymity.

Dear James,
I will do my best to answer your innovative Xmas puzzle!

1. It is a while since I read the Act but I believe no is the answer.

2. Again I believe no, because so far as I recall neither adultery nor non consummation are grounds for dissolution. If they were there would be serious problems of definition!!

3, 4 and 5. In a sense all answered above but there are certain tax disadvantages such as civil partners can only have one income tax allowance and one principal private residence.

When I get back to the office I will have to look again at the act to check the above is right. You are right to be puzzled but all legislative policy relating to the family is determined by pressure groups rather than as a result of carefully thought through policy as to the role of the family in society.
Very best wishes for Christmas and the New Year.