Nicholas Turner revisits the chaos of the Civil Partnership Bill
Last month, we entered the strange world of the Civil Partnership Bill 2004. For a better feel of its labyrinthine complexity, let us look again at the teaser I posed. Clauses 43 to 47 concern the dissolution (divorce) of a civil partnership (CP). Clause 48 concerns void CPs and the next outlines those that are voidable. Clause 49.1.c states in full,
Where two people register as civil partners of each other in England and Wales, the civil partnership is voidable if at the time of its formation, the respondent was pregnant by some person other than the applicant;
The brain teaser is this: what sex is the applicant? If you want to test your mental skill, read no further until you think you have worked it out.
Mad or what?
If the two partners are male, then (surely!) one of them cannot possibly be pregnant, by anyone. If the two partners are female, either could be pregnant, but (surely!) not by the other. If the respondent was pregnant, it could only be ‘by some person other than the applicant’. If the couple were, in the traditional manner, respectively male and female, they would not be permitted to contract a CP.
The clue to the conundrum is found in the accompanying volume of explanatory notes – ‘that could only be relevant in a case involving a gender change under the Gender Recognition Bill.’ There is a further complication provided by Clause 50.6, which insures that a court will not make a nullity order if the applicant knew of the pregnancy at the time of the formation of the CP.
Have I got it right then? Only a woman can become pregnant, and even the law cannot change this truth. However, the Gender Recognition Act will, apparently, give a pregnant woman the right under law to define herself as a man, and therefore to register a civil partnership with another man. If he, poor deluded fool, can prove to a court that he was unaware at the time of the registration that his ‘male’ partner was actually a woman pregnant by another man, then he can get a declaration of nullity.
Why does all this matter? This is the key question. What is the origin and purpose of this complicated piece of legal reasoning? The fact, unknown to the man and not condoned by him, that the woman was pregnant by another man at the time of the marriage, is an accepted condition for declaring such a marriage void, and derives from the opening chapter of Matthew’s Gospel. Joseph, aware that the forthcoming marriage bond has been put asunder, that Mary (so he believes) with child of another man is therefore no longer his wife, seeks to put her away quietly. Joseph being a righteous man must, according to his understanding of God’s law, ‘annul’ their marriage in order to uphold the institution of marriage.
Care of children
The formality, seriousness and exclusivity of the marriage bond was ordained for the procreation and upbringing of children. This is why the state (and not just the Church) has so strong an interest in and responsibility for the institution: the care of children. Clause 49.1.c suggests that the same principle applies to civil partnerships. Is this complete nonsense?
Sadly, there is no indication from the Bill itself, nor from the accompanying notes prepared by the Department of Trade and Industry, as to what CPs are for. There seems to be a serious confusion. Fast forward if you will to near the end of the Bill, to Schedule 20 §69, where a definition is given of a ‘sham civil partnership’. The only definition of a sham partnership is when one of the persons is a non-EU citizen and the CP is formed for the purpose of circumventing the immigration rules.
One of the more interesting ‘reasons’ for contracting a CP comes from France where they have been in existence for a few years. There was a proliferation of CPs between friends, one of whom had landed a teaching post in the south of France, the other of whom was living in the cold, industrial north. The education service was obliged to find the latter a post down south if at all possible, after which the partnership, carrying as it does no moral or social baggage, could be quietly dissolved. What an admirable way of beating the system; and not, according to UK legislation, a sham. Any reason is permitted, save only the obtaining of a passport.
What are they for?
What is a CP for? It is a more important question than most politicians suppose. The Church’s response should not be one of condemnation, for what after all is there to be condemned? The problem is one of understanding. What is a CP and what is it for? We need to keep insisting on this question. There is a level of confusion in this Bill, and its partner the Gender Recognition Bill, that is truly dangerous.
Square one is the core demand of justice. The axiom that modern western governments must be fair to gays is a given. It is not up for negotiation, nor should it be. The Church need have no problem with this, for we are talking about secular governments, not the Church itself. The questions arrive when this admirable aspiration is translated into legislation.
If the purpose is, in the popular phrase, ‘to be nice to gays’, this suggests that wedding ceremonies with formal registration and certificates, along the lines of recent initiatives in London or San Francisco, are what is needed. This violates an important democratic truth that government should not concern itself with people’s private lives. Privacy is a human right. Nevertheless, if some people, fearing intolerance, wish to make their private life public, in order to establish greater freedom from prejudice, government is not wrong to stretch a principle sufficiently to offer support or, as the French put it rather better, ‘solidarity’. What is crucial here is not to over-legislate. The 196 clauses of the present Bill are, unquestionably, over-legislation.
If, as discussed last month, the principal purpose of a CP is understood to be the avoidance of inheritance tax, the right to nominate a same-sex partner as next of kin, the right to share in pension provision, and so on, then the current Bill is a sledgehammer to crack a nut. If there are particular problems, it is irresponsible not to tackle them directly. If there are injustices with inheritance tax, either abolish it or modify it, but do not invent CPs to solve the problem.
For these injustices are not confined to same sex partners. Many are felt just as strongly by family members. In other words, CPs would discriminate against existing brothers, sisters and all other close relations by blood. That is neither just nor edifying. Again, if the idea is to reduce greenhouse emissions by encouraging people to live together and stay together, and so use fewer houses, cars and washing machines, then the best thing to do is to encourage exactly that, by tax incentives or whatever; but not to invent CPs in order to achieve it.
If, in the end, the purpose of a CP is to be a gay marriage, for the nurture and upbringing of children, then much more serious work needs to be done before legislation is even considered. If the existence of CPs destabilizes the institution of marriage by only the slightest degree, the overall effect will hugely negative. It may be unfair, but that is how it is. On government figures there will be at least 150 marriages for every CP in 2050 and maybe even more. Marriage, therefore, is a far more important social institution than a CP can ever be. If children are the reason for introducing CPs, there is more work to be done. The case has not been made. Legislation should not even be considered until it has.
The Western European rush towards gay marriage is a political phenomenon (see sidebar for existing versions). It is probably unstoppable in the short term, and the Church’s task is not to condemn, for there are good intentions hidden somewhere within the legislation, but instead gently to encourage crusading governments back down to earth.
The task is one of unravelling the confusion and of showing that the search for justice would be better served by more modest but practical solutions. If tolerance is the aim, then encourage tolerance. If inheritance tax is the problem, then let the Chancellor sort it out in the next budget. If there are issues with hospitals and next of kin, then rework the Data Protection Act. If gays want weddings, let town halls register them. If people demand the right to self-definition, give it to them, whatever it means. Solve each little problem one by one, but do not undercut one of the building blocks of a civilized society for the sake of a fashionable social experiment.
If the bishops in the House of Lords have a particular responsibility, it is (I suggest) to help government to be more modest in its aims. There may be much in the Bill that is worthwhile, but there is simply too much in the whole package to make coherent sense.
If the reason is one of justice, then the Bill is not liberal enough. If it is not gay marriage by another name, there is no justification for heterosexuals to be discriminated against. If it is a new definition of marriage, it will destroy a hundred times more than it will ever create.
Good intentions; but try again. It is not a brave new world that will solve these issues, but quieter, wiser counsel.
Schedule 14 of the Bill lists corresponding civil contracts already in existence in other European countries. Belgium and the Netherlands also offer (gay) marriage.
Belgium cohabitation légale statutory cohabitation
Denmark registreret partnerskab registered partnership
Finland rekisteröity parisuhde registered partnership
France pacte civile de solidarité civil solidarity pact
Germany Lebenspartnerschaft life partnership
Iceland sta∂festa samvist confirmed cohabitation
Netherlands geregistreerde partnerschap registered partnership
Norway registrert partnerskap registered partnership
Sweden registrerat partnerskap registered partnership
Nicholas Turner is the Curate of Broughton-with-Elslack.