Family - Sexuality And Marriage

Front 1

Theme:

Back 1

Although reforms on marriage have made sexuality less relevant, the law is still obsessed with sexuality.

Front 2

1. Introduction

Back 2

A. Hyde v. Hyde 1866 - common law definition of marriage

B. Marriage (Same Sex Couples) Act 2013 - increasing recognition

C. 1% of marriages annulled - very rare, but shows us the "ingredients of marriage"

D. Bainham (2002) - on the surface, the law doesn't care. But closer analysis it has fascination with sexuality.

Front 3

2. Same Sex Marriages

Back 3

A. Recognition is an indication that law no longer views sexuality central to marriage.

B. Prior - Civil Partnership Act 2004

C. This caused debates into same sex marriage.

Front 4

2A. Arguments Against Same Sex Marriage

Back 4

A. Centred on marriage as an institution that should remain unchanged. The heterosexual union.

B. Patrick Parkinson: simply don't know what marriage is anymore?

C. Peter Duckworth: can't reproduce and spreads AIDS - it's not the same.

D. Church against it. Threatened to divorce from state.

Front 5

2B. Arguments For Same Sex Marriage

Back 5

A. Hugo Rifkind - all arguments are based on "eww" principle. Or religion.

B. Why should a single religion dictate our laws in a society of diverse beliefs.

C. Michael Freeman: peadophiles and murderers can marry.

D. Moore: cf. banning of interracial marriage. Civil partnerships = "legal sexual apartheid"

E. Does not undermine but strengthens it.

Front 6

What was the act which gained Royal Ascent allowing gay marriage?

Back 6

Marriage (Same Sex Couples) Act 2013

Front 7

When were the first gay marriages?

Back 7

12AM on 29th March 2014

Front 8

2C. Analysis

Back 8

Is sexuality still at the centre here? The law suggests otherwise.

A. Separate system of marriage - couldn't change existing laws.

B. Quadruple Lock - s2 - religious organisations not compelled. Undermined Cameron. Herring - shame celebrations tainted by concern with religion.
C. Adultery - Schedule 4, Part 3 - not a ground for divorce, unless with different gender. Herring: same-sex sexual behaviour not talked about?

D. Civil Partnerships - s1(1) CPA 2004 - only available for gay couples. Thatchell - discrimination? Campaign in ECHR.

E. Law should ignore religion - prove the irrelevance of sex and extend to all

F. Barker and Auchmuty - second wave feminism - shows obsession with sexuality AND outdated and patriarchal institution of marriage

Front 9

3. Non-Consummation of Marriage

Back 9

Significant as it shows the "ingredients of marriage".

A. Paints a picture of sexuality becoming less relevant?

B. s12(a) and (b) Matrimonial Causes Act 1973 - non consummation due to incapacity or willful refusal renders marriage voidable. Shows law obsessed with marriage in all forms.

C. Diduck and Kaganas: case law shows phallocentric nature of the law e.g. DE v. AG - legal meaning of sexual intercourse -- other forms labelled "disgusting" and "one of the greatest evils to be avoided"

D. But the law is moving away from non-consummation through MSSCA 2013 and CPA 2004?

Front 10

3A. Analysis of Consummation

Back 10

1. Diduck and Kaganas: more likely the law doesn't consider gay sex to be adultery -- "not real sex"
   
2. Should be removed from all marriage laws. Otherwise still puts heterosexual marriage as a more significant relationship -- shows relevance of sexuality.
3. Diduck and Kaganas: law is focuses on the physical heterosexual union rather than love, respect, commitment. Only sex matters.
4. No explanation for requirement e.g. Baxter: consummation counts with condom and Clarke v. Clarke - pregnancy without penetration =/= consummation?
5. Bainham: if it's not about children, then what is it about? Sexuality.

Front 11

4. Trans people

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1. The law's changing of the treatment of transgender persons in marriage is shifting place of sexuality.
   
2. s11(c) Matrimonial Causes Act 1973 - marriage is void unless parties are male and female i.e. never happened. Problem for those whose biological sex does not match their social gender.
3. Corbett v. Corbett - April Ashley : historically, law would only recognise biological sex. Sex was an "essential detriment" of marriage. Omrod LJ - "lack of essential role of women in marriage" i.e. to reproduce.
4. Diduck and Kaganas: "conservative approach to judicial role" - reflecting Julie Burchill - "bedwetters in bad wigs".
5. Goodwin v. UK (ECHR) - recognised again trans persons rights - Art. 8, 12 and 14.
6. Bellinger v. Bellinger - incompatability of s11(c) stopped trans-woman marrying in her declared sex.
7. Gender Recognition Act 2004 - otherwise would've allowed gay marriage so enacted GRA2004. s9(1) - when certificate issued, they are legally identified gender.
8. Grounds for GRC s2(1): a) Has gender dysphoria b) lived as acquired gender for 2 years c) intends to live as acquired gender permanently
9. Sharpe: great leap forward in comparison to Corbett. Now the most progressive laws in the world.
10. Parry v. UK - yet still obsessed with sexuality - couldn't be married and get a GRC -- have to have surgery or divorce, then get civil partnership.
11. Although Marriage (Same Sex Couples) Act 2013 - rebutted this

Front 12

4A. Analysis of trans people and marriage

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Normativity of the law vs. fluidity of gender

1. If you don't have the certificate to "prove it" you still come under Corbett. Act has done nothing.
2. No recognition for "stolen marriages"
3. Cowan - law still thinks of gender as binary
4. W v. W - what about intersex people - their sex is chosen by the court? What about gender fluid?
5. Diduck - law treats dysphoria as a contagious condition to be treated.
6. Sharpe - ultimately, a failure to disclose gender is a ground for annulment - s12(h) MCA 1973. Shows law's suspicion of trans people.
7. Although law appears to be breaking down gender, they're not.
8. s11(c) - without surgery, trans people can't consummate marriage.

Front 13

5. Conclusions

Back 13

1. Despite reforms which seem to show declining importance, not the case.
2. Law still holds strong tie.
3. This isn't what FL should be doing for society, no longer intrinsic, marriage open to all.
4. Northern Ireland referndum - 63% -- shows changing face of society.