The importance of words

Nicholas Turner on some of the weirder elements of the Marriage Act regulations coming into force on 10 December

It is one of the scandals of post-1997 parliamentary democracy that bills can be debated, passed and enacted before they have been fully worked out. This offers the bizarre situation, repeated many times over in a variety of different areas of our common life, that a law can be on the statute book before anyone knows exactly what it means or how it applies. Weird but true.

 

Equal civil marriage

The new Marriage Act, which came into force on the eve of Mothering Sunday, introduced the new institution of Equal Civil Marriage, available to any two people, not closely related to each other, nor already married. Gender is irrelevant. This is in turn means that sexual intercourse no longer has any relevance or connection with civil marriage. Any two single persons, not related, can enter a contract of civil marriage; or more simply, be married.

This new form of marriage becomes what one might call ‘a civil partnership’. But as we know, there are already civil partnerships (introduced by means of a mammoth piece of legislation, of 264 clauses and 30 schedules, less than a decade ago) available only to same-sex couples. It has therefore been decided that they too should be allowed to marry, without having first to dissolve their civil partnership.

 

Draft instrument

A draft instrument has now been issued by the Secretary of State. From 10 December 2014, couples in a civil partnership can convert their relationship into a civil marriage. An earlier draft, in July, was shown to gay activists (‘there has been engagement with relevant stakeholders’, as the regulations coyly put it) who were splenetic in their disapproval. Not surprisingly. The proposals were mean and miserable. There was the Prime Minister gushing about gay rights, and there was his government peddling a nasty and heartless procedure. This too was weird, as the junior minister given the task is himself in a civil partnership.

 

A new draft instrument has now been issued (though as the government’s own website is forced to admit, the original draft must be shown in full, as the revision has not yet been enacted). We can only hope, at this late stage, that no further changes will be made.

 

Conversion declaration

Assuming the Secretary of State gets her act together (literally?) couples currently in a civil partnership will be able to convert it to a marriage, receive a marriage certificate, and be allowed a ceremony following the conversion. Why, you ask, should we be in the slightest bit interested?

 

The conversion takes place when ‘at the invitation of the superintendent registrar, and in the presence of the superintendent registrar and of each other, each of them has signed the conversion declaration’ [3.1.a]. The declaration is as follows: ‘I solemnly and sincerely declare that we are in a civil partnership with each other and I know of no legal reason why we may not convert our civil partnership into a marriage. I understand that on signing this document we will be converting our civil partnership into a marriage and you will thereby become my lawful wife [or husband]’ [3.2.b].

As with the original civil partnership, it is a signature alone that establishes the contract. As if to underline this, ‘As well as signing the conversion declaration as mentioned in paragraph (1)(a), the parties may, if they wish, say the words of the declaration in paragraph (2)(b) to each other in the presence of the superintendent registrar’ [3.3]. The spoken word may be used, but only as well as the signature. It is only an optional extra.

 

No vow required

You can be married (in the terms of the Marriage Act) without saying any words at all. True, if you are an opposite sex couple, you will still have to declare by word your consent one to another; for as yet no further regulation has been issued to resolve the several anatomical anomalies between opposite-sex and same-sex couples. They undoubtedly will be, as with such things as adultery and consummation which are still, in law, gender specific. They will be, because it is the explicit purpose of the Act, and all the regulations that follow from it, that there should be no difference in substance between opposite-sex and same-sex marriages. The word ‘equal’ in the new institution of civil marriage is entirely deliberate: it was the stated purpose of the Act.

What the new conversion regulations show us, therefore (we’ve got there in the end), is that the spoken word is not of the substance of the civil contract. No vow is required. By contrast, Holy Matrimony is established by the couple’s exchange of vows. Equal civil marriage is – as the new regulations have now clearly shown – explicitly not the same thing as Holy Matrimony. ND