Outline of a new legal framework of rights for all unwed couples – gay and heterosexual – which uniquely allows partners to choose from a menu of rights to create a partnership agreement tailor-made to meet their own particular needs.
Marriage rates are plummeting, and cohabitation is now more popular than ever. To reflect this changing pattern of relationships, the time has come for an entirely new framework of rights to recognise and protect all unwed relationships, both heterosexual and homosexual.
My proposed Unmarried Partners Act offers a unique alternative to the existing options of marriage, cohabitation law, and the Danish model of registered partnerships for lesbian and gay lovers.
Although declining, marriage is still the dominant mode of partnership and is likely to remain so for the foreseeable future. With this in mind, seven years ago, the London gay rights group OutRage! pioneered the first legal challenge in Britain to the ban on same-sex marriage.
On 19 March 1992, we sponsored five lesbian and gay couples to file applications for civil marriage at Westminster Registry Office in London. They were rejected on the basis that the Matrimonial Causes Act 1973 (but not the Marriage Act 1949) specifies that marriage partners must be of opposite sexes.
This ban on homosexual marriage is, arguably, a violation of human rights, contrary to Article 16 of the UN Universal Declaration of Human Rights – the right to marry. Based on the worthy liberal adage of “live and let live”, it is right that same-sex couples should have the option to get married, if they wish to do so. Discrimination in marriage law, on the basis of sexual orientation, cannot be ethically justified in a democratic society committed to equality before the law and respect for individual choice and freedom.
Acknowledging the need for some form of gay partnership rights, in 1989 Denmark became the first country in the world to recognise same-sex unions. Not ready to accept gay marriages, the Danes pioneered a unique system of registered partnerships for homosexual couples that has since been copied by several other countries – most recently, the Netherlands.
Although often described as a gay alternative to marriage, these registered partnerships are, in essence, a form of same-sex civil marriage (but usually an inferior one in terms of rights, often excluding child adoption and access to donor insemination services).
Moreover, the Danish system is not the most useful, practical way of guaranteeing legal rights to homosexual lovers. The very low take-up rate of registered partnerships in Denmark over the last 10 years demonstrates the dubious benefits of this model of relationship recognition.
The overwhelming majority of Danish same-sex lovers have chosen not to register their partnership. This means that despite the registered partnership law in Denmark, most homosexual couples are no better off than before. They still have inadequate legal protection. Only a tiny minority has gained from registered partnership legislation.
A registered partnership law in Britain, along the lines of the Danish system, would also continue to leave the bulk of lesbian and gay relationships without legal rights. This is the Achilles heel of the registered partnership model: it helps a few, but does nothing for many.
Both marriage and registered partnerships (which are based on the marriage model) are an outdated, restrictive way of providing legal rights to partners in long-term relationships. We need to rethink partnership rights from first principles.
If marriage did not exist, it is unlikely we would invent it now. The marriage formula accords less and less with contemporary needs and aspirations, as evidenced by the declining rate of marriage (now at its lowest level in Britain since the 1920s) and by the spiralling divorce rate (nearly one in two marriages in the UK now ends in divorce).
At the end of the twentieth century, marriage is losing its relevance, even to heterosexual men and women. It belongs to an earlier, bygone era. Moreover, there is no moral or practical reason why it should remain the sole, exclusive basis on which legal rights are conferred on partnerships.
Marriage is nowadays touted as a symbol of love and commitment. But love and commitment can exist both inside and outside marriage. Wedding vows merely formalise pre-existing feelings of intense affection and loyalty, but they play no part in creating those feelings.
Shocking as it may seem to some people, love had very little to do with the genesis of marriage as a legal institution. Indeed, the correlation between love and marriage is, in historical terms, a relatively recent coincidence.
Marriage evolved historically for three main reasons. First, as a way of ensuring male domination over women and children (in particular, the sexual possession of women by men). Second, to guarantee the inheritance of property through the male line (in western patriarchal societies). And third, to regulate and stabilise the conception and rearing of children.
The first two of these reasons for marriage are profoundly oppressive and outdated for heterosexuals, as well as homosexuals. The third justification is irrelevant for lesbian and gay people – except in cases where same-sex partners have children, either from a previous marriage, by donor insemination, or through fostering/adoption. But even then, the key to successful parenting is surely a loving, supportive home environment, not the marital status of the partners.
Marriage has had its day. It is time to start afresh. What is needed is an entirely new, modern, democratic, egalitarian and flexible model of partnership rights, looking forward to the future, not chained to the past. Any new legal framework ought to be universalist; applying to both same-sex and opposite-sex couples. This is important for three main reasons:
- Unmarried partners have few or no legal rights. This is true of cohabiting heterosexual lovers, and of lesbian and gay couples.
- By promoting inclusive legislation for all unwed partnerships, the common needs of unmarried same-sex and opposite-sex relationships can be addressed simultaneously, thereby creating a broader, stronger and more powerful coalition for legal reform.
- The comprehensive approach – benefiting both heterosexuals and homosexuals – avoids the danger inherent in gay-exclusive partnership laws. Specifically gay legislation is always risky, because it creates a sitting target for homophobic politicians and campaign groups.
The need for a new legal framework of partnership recognition is exacerbated by developments in case law on cohabitation. This, so far, primarily affects heterosexual cohabitees, but some court judgements have also applied to homosexual live-in lovers.
Case law is thus, by stealth, increasingly imposing new legal responsibilities on common-law partners, regardless of whether they want them or not.
The courts are, little by little, dragooning cohabiting couples into a web of legally binding obligations, despite their obvious wish to remain outside the formalised structures and duties of marriage. In other words, the responsibilities that go with marriage are now being imposed on lovers who have chosen not to get married.
This is a dangerous, authoritarian trend which is usurping the rights and choices of those who reject matrimony. The only sure way to safeguard the rights of these couples – whatever their sexuality – is to create a new legal framework as a counterpoint to both marriage and cohabitation case law.
UNMARRIED PARTNERS ACT
My proposed solution is an Unmarried Partners Act that would apply equally, and without distinction, to unwed opposite-sex and same-sex couples.
THE RIGHTS INCLUDED
The Unmarried Partners Act would include all the rights that go with civil marriage.
ETHICAL BASIS FOR GRANTING RIGHTS TO UNWED COUPLES
The ethical argument for granting partnership rights to unwed couples is that love and commitment should confer rights, irrespective of whether the partners are married or unmarried. All sincere, loving relationships merit legal acknowledgement. Unmarried couples deserve the same legal rights as married ones.
What should activate a couple’s eligibility for rights is mutual love and commitment, not participation in the formalised regulations and official ceremony of marriage. There is no convincing moral reason why married partners should be privileged over partners who choose not to get married.
AN OPT-IN SYSTEM OF FLEXIBLE RIGHTS
The unique, pioneering character of my Unmarried Partners Act – in marked contrast to the limitations of marriage, registered partnerships and cohabitation law – is that it is a flexible system of partnership rights which allows the partners to select the rights they do and don’t want.
It is based on the recognition that there are nowadays many different patterns of loving relationships. While they are characterised by a commitment akin to marriage, lots of these relationships are more informal and operate in diverse ways. Some lovers live together; others live apart. While most share their income and expenditure, an increasing number prefer to be financially independent.
By allowing partners to choose their preferred options from a range of available rights, the Unmarried Partners Act model caters for the heterogeneity of modern partnerships.
It offers a full menu of rights, identical to those available to married husbands and wives, including next-of-kin status for the purposes of hospital and prison visitation, eligibility for palimony settlements, and rights with regard to inheritance, company spousal benefits, guardianship of children, and so on.
Some rights concerning tax contributions and welfare benefits would, of course, have to be chosen together as part of a joint package of rights and responsibilities.
The great advantage of the Unmarried Partners Act is that it allows partners to choose some of the rights, all of the rights or none of the rights, according to their particular needs and wishes. They can devise their own tailor-made partnership agreement, and subsequently add rights, or subtract rights, in the light of their changed circumstances.
The rights are automatically available, but they have to be claimed by means of a mutually consented partnership agreement; which means they are not foisted on couples against their wishes (as happens under marriage, registered partnerships and cohabitation law).
This “opt in” system permits partners to “pick and mix” from a menu of rights. Such a system accords with modern morality, lifestyle and diverse relationship patterns.
A SIMPLE & INFORMAL ACTIVATION OF RIGHTS
The simplicity and ease of partnership agreement, registration, certification and annulment is a great advantage over existing models of partnership recognition, such as marriage and the Danish formula of registered partnerships. Under the Unmarried Partners Act, there is no ceremony associated with, or required for, the registration of a partnership (although partners are, of course, free to arrange their own commitment or blessing ceremony if they wish).
The claiming of partnership rights involves a Partnership Agreement. This would be available to any couple, aged 18 or over, in a relationship based on mutual love, affection, interdependence and commitment. Recognising that there are many different personal circumstances and patterns of relationship, the partnership need not necessarily involve cohabitation or shared finances.
A Partnership Agreement would not be available to people who are married or who already have a Partnership Agreement. Marriage and this system of partnership recognition are mutually exclusive, and a person could have only one Partnership Agreement at a time.
The Partnership Agreement would consist of a short, standard form (available from a Post Office or Town Hall). It would include an affirmation of partnership and commitment, and list the partner’s names, addresses, dates of birth and occupations.
The partners would select the rights they want from the list of options specified on the form, and strike out the rights they do not want. They then both sign the Agreement in the presence of a person of professional standing (such as a doctor, solicitor or teacher, as with a passport application), who also signs the Agreement as a witness. This Agreement is then sent to the Registrar of Partnerships for registration.
Amendments to the claimed rights can be made at any time by submitting a new Partnership Agreement to the Registrar, in accordance with the original procedure.
A Partnership Agreement would have legal precedence over a will, in order to prevent a person entering into an Agreement and then secretly, in their will, countermanding its provisions.
Compared to marriage, this simple, no-fuss system of Partnership Agreement is easy to enact and easy to dissolve.
REGISTRAR OF PARTNERSHIPS
On receipt of a Partnership Agreement by the Registrar of Partnerships, there would be a 30-day waiting period for registration, in case either partner has second thoughts. During this 30-day period, one or both partners can revoke the Partnership Agreement by submitting a Partnership Annulment to the Registrar of Partnerships.
Once the 30-day waiting period has expired, the Partnership Agreement is legally recognised and enforceable. The Registrar issues a Certificate of Partnership, which the partners can produce to claim their chosen rights, and which any other person can verify by contacting the Registrar. This Certificate would be legally binding on the partners and on all relevant public and private authorities.
The 30-day waiting period is proposed as a deterrent to spur-of-the-moment Partnership Agreements, and to give partners some degree of protection against short-term, opportunistic lovers.
The rationale for having an official Registrar and Certificate of Partnership is to ensure a means for verifying the authenticity of a partnership and to prevent false claims being made by one partner against another, or by third parties.
The Partnership Agreement could be annulled at any time by one or both of the partners signing a Partnership Annulment (a standard form available from a Post Office or Town Hall). As with the Partnership Agreement procedure, it would have to be witnessed by a person of professional standing, and forwarded to the Registrar of Partnerships.
A Partnership Agreement would become void 30 days after the Partnership Annulment is received by the Registrar – the 30-day delay being a cooling-off period to allow the partners to reconsider their decision and, if they change their mind, to enable them to withdraw their annulment.
DISPUTES OVER THE FACTUALITY OF A PARTNERSHIP
If a claim of partnership is disputed by one partner against another, or by anyone else, they would have the right to take legal action and seek adjudication in the courts.
Judges would be empowered to call evidence and decide on the existence (or not) of a partnership. The evidence considered could include the examination of personal artefacts such as letters, cards and photographs; plus testimonies from friends concerning living, financial and holiday arrangements. The decision of the courts would be final and legally binding.
My Unmarried Partners Act is a much simpler, more accessible and flexible system of rights than marriage, cohabitation law and registered partnerships. This makes it an ideal new legal framework for recognising the diverse and evolving relationship patterns of the twenty-first century.
Published as “New rights for unmarried partners”, New Law Journal, 1 October 1999.
Also published as a pamphlet by the Libertarian Alliance, Political Notes No 159, September 1999, under the title “An Unmarried Partners Act”.
Copyright Peter Tatchell 1999. All rights reserved.