Marriage (Same Sex Couples) Bill

Debate between Baroness Butler-Sloss and Lord Bishop of Guildford

Wednesday 19th June 2013 Lords Chamber

[The Lord Bishop of Guildford]

My Lords, it is agreed on all sides that parents make the most fundamental contribution to the flourishing and development of children, and that there are many aspects of parenthood and many kinds of parenting in such a complex society as ours. There are many forms of being a family, as was illustrated earlier this evening by the example given by the noble Baroness, Lady Farrington, from her school.

We have a common-law presumption that a child born to a woman during her marriage is also the child of her husband. Paragraph 2 of Schedule 4 says that the common-law presumption does not apply in the case of a woman who is married to another woman—for obvious reasons. This is a probing amendment and the question is whether simply leaving matters there is sufficient. I argue that it is not because, in all the debates on the Bill here and in another place, and during the consultation process, there has not been enough concentration on children. Tonight, as briefly as I possibly can, I want to stress a more child-centred approach to the question of children in marriage—all kinds of marriages and especially same-sex marriages.

Currently and in future, in a marriage between a man and a woman any child born to the woman is presumed to be the child of her husband. As her husband, he bears a responsibility for that child, not least if something should happen to its mother. I am concerned that in the Bill there is no equivalent or automatic provision made for children brought up by a married couple of the same sex. If a woman in a same-sex marriage has a child, there is of course a biological father somewhere but, regardless of whether or not the father is in an ongoing relationship with the couple and their child, there is at present no responsibility on the mother’s spouse’s side for that child.

Helpfully, it has been suggested in the Explanatory Notes that the other party to a marriage will be treated as the child’s parent by virtue of amendments that the Bill is making to the Human Fertilisation and Embryology Act. These provide, under certain conditions, for the same-sex partner of a mother who gives birth to a child as a result of artificial insemination or the placing of an embryo in her womb to be treated as the parent of that child. I am sorry for this rather technical intervention at this point in the evening.

However, not all children born to mothers in a same-sex marriage will necessarily be born as a result of treatment to which the HFE Act applies. Such a child might be conceived in the conventional manner by a woman who is married to another woman. In such a case it would be possible for the mother to register the child’s father when she registers the birth, with the effect that he would have parental responsibility for the child. The complications of that are quite interesting. Alternatively, she might not do so and her same-sex spouse might become the adoptive parent of the child. If neither of these things were done, the child would have only one person with parental responsibility for it—this is the point.

There is thus a contrast with a child born to a mother in an opposite-sex marriage and there is a real possibility of children born to a mother in a same-sex marriage being disadvantaged as compared to children of opposite-sex marriages. This is not to say that children always have to have two parents—that is often sadly not possible. Moreover, sometimes a child brought up by a single parent or same-sex parents is actually better cared for than a child brought up by dysfunctional heterosexual parents. I give praise to couples who give love and care to children in same-sex partnerships and eventually in same-sex marriage. However, given the intention of the Bill to extend marriage and to provide equality, why should children of a same-sex marriage— some of them, at least—be at a potential disadvantage in some cases? This is a probing amendment and I ask the Government to consider this question very carefully indeed.

[Baroness Butler-Sloss]

My Lords, the noble Lord, Lord Northbourne, has asked me to speak on his behalf to Amendment 39A, which picks up exactly the same point as the right reverend Prelate’s. The noble Lord is not terribly happy with the wording that he has produced. It is, again, a probing amendment and it raises quite clearly the issue of parental responsibility. I am not sure that it is necessarily appropriate to delete paragraph 2 in Part 2 of Schedule 4 but the Government need to look at the point made by the right reverend Prelate that there will be children born to one partner in a same-sex marriage who will be the only person with parental responsibility although in every other way she and her partner will be married and, were they of opposite sexes, both would have parental responsibility. It is quite an important point. You might say, “Get a residence order”, but in the Children and Families Bill residence orders are going to be abolished. Consequently, I do not consider arrangements made for when parties are in dispute to be appropriate for those who are in harmony. Therefore, I ask the Minister to have a look at this question of how appropriate parental responsibility can be achieved for the female partner of a woman who gives birth during their marriage.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I will speak to Amendments 40 and 41. This is a sensitive issue and we are speaking, of course, at an extremely late stage. It is an issue that also produces embarrassment in some and humour among others of those who hear what is said. I am, however, entirely serious about this matter and I wish to present it to your Lordships even at this late stage.

My early practice at the Bar was against the background of defended divorces, and the matrimonial offence of adultery was treated very seriously. There were allegations of collusion and condonation to try to avoid a finding of adultery. The Matrimonial Causes Act 1973, which caused dramatic changes to divorce law, retained adultery in Section 1 as the first ground, together with irretrievable breakdown, and it remains the law today. Adultery may not be seen as such a serious matrimonial offence today as it was in earlier times, but that, in my view, is a mistaken approach.

Adultery remains a fundamental breach of the trust of those who make the commitment of marriage, and I have no doubt that there will be an equal commitment between same-sex couples, many of whom demonstrate long-term, stable relationships, so the behaviour of one party to a marriage who breaks the commitment to the other by engaging in a relationship with someone outside marriage strikes at the root of marriage and can be a devastating blow to the injured partner. The suggestion has been made that the injured person in a same-sex marriage could petition for unreasonable behaviour as an alternative ground for divorce, but that is not the answer. In current marriages, if one spouse commits adultery, that is the ground upon which the other spouse can pray in the divorce petition. It therefore demonstrates in family legislation the importance of both spouses remaining faithful to each other during the continuance of the marriage.

According to Part 2 of Schedule 4, following the Civil Partnership Act, the same-sex relationship excludes a ground for divorce available to those spouses who have an adulterous husband or wife. They have the opportunity, but the same-sex couple do not. This is inequality, both to erring husbands or wives, who can be sued for divorce on a ground that would not occur if same-sex partners were in the same position. However, more importantly, it is profoundly unjust to the partner who has suffered the trauma of the failure of the marriage through the sexual misbehaviour of an erring same-sex partner and the breach of the commitment of fidelity. Had I been a Member of this House during the passage of the Civil Partnership Bill, I would have made exactly the same point.

I consider it profoundly unsatisfactory and, more importantly, profoundly unjust that adultery is not a ground for same-sex divorce. It undermines the value of same-sex marriage. Why is this the case? I assume that it is because there has not so far been a definition of consummation of a sexual relationship other than between couples of the opposite sex. This is a failure to come to terms with more than one type of sexual relationship and a broader definition of the consummation of a relationship.

The criminal law includes the rape of a male as well as a female. It has been so ever since the Sexual Offences Act 1956. I will read just one sentence from the Sexual Offences Act 2003, from Section 1(1):

“A person … commits an offence if he intentionally penetrates the vagina, anus or mouth of another person … with his penis”.

That goes part of the way with same-sex marriages. Rape requires proof of consummation, and so far 12,000 men have been identified as victims of rape.

I cannot understand why there can be a definition of rape—a recognition of the sexual act of consummation required to prove rape in criminal law—but a seeming inability or reluctance by the previous or the present Government to give it the same recognition in the context of family law. The failure to find a definition of consummation in civil and family law works, as I have said, as a real injustice. It makes a mockery of the so-called equality that is the bedrock of this Bill. If marriage is to be equal for all those who get married, an embarrassed or ineffective approach to this inequality and brushing aside the matrimonial offence of adultery will not do.

Whether it is a religious or civil marriage, promises and commitments are made by one partner to the other in the marriage ceremony. Is the concept of being faithful to one another during marriage a promise to be kept by opposite-sex couples but not by same-sex couples? How can this be? For those not brave enough to recognise different forms of sexual activity, a possible alternative to a revised definition of adultery might be to describe the matrimonial offence as one similar to adultery.

Amendment 41, which looks at the inequality in the matrimonial law of voidable marriages in this Bill, raises the issue of non-consummation. In current nullity law there are two grounds of voidable marriages: inability and wilful refusal to consummate the marriage. A nullity suit on either of these grounds is nowadays unusual. However, the question of inequality and possible injustice arising from the difference in two types of marriage raises the same point as my comments on adultery. If this Government are, as they should be, strong enough to provide a revised definition of consummation and non-consummation, they should deal with voidable marriages as well as adultery. This is not a homophobic point. On the contrary; this is an injustice to innocent partners in a same-sex marriage, who do not have the same rights as innocent partners in an opposite-sex marriage and do not have the specific right to divorce a faithless same-sex partner. I beg to move.

[The Lord Bishop of Guildford]

Again, I support a probing amendment. I am concerned that marriages between people of the same sex should enshrine the same standard of fidelity as marriages of heterosexual couples. As it stands, the Bill does not quite deliver this. Indeed, the Bill enshrines a very important inequality in the way that the virtue of fidelity is manifested in relationships. Marriage between people of the opposite sex is partially defined by the fact that sexual infidelity—adultery—is a recognised and long-standing ground for divorce, as has been expounded very eloquently by the noble and learned Baroness, Lady Butler-Sloss. This is not found in the Bill.

Faithfulness is intrinsic to the promises a married couple make to one another. I feel very strongly that, as we go forward in our scrutiny of the Bill, this House must find some way of including that faithfulness equally for all married couples, if we are looking to something that has been described as equal marriage. On the grounds of equality that is an omission and in terms of the social significance of faithfulness, which is central to marriage, this omission diminishes the status that couples of the same sex stand to receive from being married. As the Bill stands, such same-sex marriages could be accused of being of a lesser standard in terms of faithfulness than heterosexual marriage unless this point is attended to.