Marriage (Same Sex Couples) Bill

Debate between Mike Freer and Julian Huppert

Tuesday 21st May 2013 Commons Chamber

[Mike Freer (Finchley and Golders Green) (Con)]

Does my hon. Friend agree it is bizarre that a man or woman who is transitioning can have surgery and change their name but cannot have a gender realignment certificate without spousal approval?

[Dr Huppert]

I find it very bizarre. There are a number of anomalies in the whole process because of how it is set up, but a gender recognition certificate may be applied for only two years after someone has transitioned into the acquired gender full time, so there has already been quite a long time to try to sort out other issues. Amendments 13 and 14 would simply end the spousal veto, so that people who transition do not have to rely on their spouses to give approval. Some spouses will not give permission for that to happen.

Amendment 16 deals with marriage and birth certificates when there are transgender issues. It argues that replacement marriage certificates should be available for people who have transitioned, so that we do not force them to be outed every time they have to show a marriage certificate. We would reissue a marriage certificate with the original date and new names. That is a simple thing, but it will make a big difference. Not everybody who has transitioned wants to be known as somebody who transitioned. Many people just want to be known by their new name and new gender, and they do not wish to explain their past in every case. They already face that often enough when dealing with various institutions and medical issues. We should not force people to out themselves every time that they need to present a marriage certificate.

--- Later in debate ---

[Dr Huppert]

We have discussed some important and detailed issues that matter intensely to a range of people. I am grateful for the tone in which the debate has been conducted by almost everybody; it has been productive. I know that people from the trans community and other minority sexual communities who have been watching are impressed that Parliament is able to discuss these matters.

The hon. Member for Bournemouth East (Mr Ellwood), who is no longer in his place, said that there is no pent-up anger about some of these issues. I would quote comments sent to me by some of my transgender colleagues, but I suspect the language would be rather unparliamentary. There is certainly pent-up anger among people about their stolen marriages.

As I am sure the Minister is aware, I disagree on some of the detail about these amendments and I maintain that there are some concerns. I was worried by some of the language about not fully consenting to a marriage, although I am sure the Minister did not mean to imply that people need to be protected from transgender spouses or transgender people—I am sure that is not what was intended. I was grateful to hear her say that the Government will continue to listen carefully on such issues. I hope there will be further discussion in another place and that the Government will reflect on what more they are able to do.

There has been some progress and I acknowledge some of the Government amendments. On stolen marriages, amendment 15 was always an ideal, and I am well aware of the Government’s objection to backdating. It would be wonderful if it were possible to do so, and I am sure the Attorney-General is a good enough lawyer to find a way to do that. The Minister highlighted the fact that couples will be able to backdate their new marriage to the date on which their civil partnership was formed, so there is some form of backdating, which is welcome. In many cases, there will be a one-day gap between two otherwise identical marriages, which is slightly odd, but I am grateful for that progress. Amendment 15 was always somewhat optimistic, but I hope we can make progress on some of the other issues.

Amendment 49, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), is critical. It has been noted that the current position gives rise to some truly odd anomalies. We are introducing—quite correctly—protection for someone who is transgender and transitions, so that they do not lose out on pensions by virtue of that, but we are leaving in place a slightly bizarre anomaly, mentioned by the hon. Member for Finchley and Golders Green (Mike Freer), regarding people who have a same-sex relationship, because we are not backdating that to before 2005. That seems deeply anomalous and I am sure the Attorney-General will give clear advice about discrimination on that basis.

[Mike Freer]

I raised that question because of the anomaly that a gay man or a straight man joining the pension scheme will pay contributions at the same rate but receive different benefits, which is discrimination.

[Dr Huppert]

It is absolutely discriminatory. It is also the case that a bisexual man or woman would pay at the same rate and would get a different pension transferred depending who they happen to end up with. That seems truly bizarre. The position is not at all sustainable and if the hon. Member for Brighton, Pavilion presses her amendment to the vote, I expect that I and my colleagues will support her. It is a free vote but I promise my support. However, given that Opposition Front Benchers have said they will not support the proposal, I will understand if the hon. Lady wants to leave her amendment for consideration in another place. The situation is completely unsustainable and it should not last the passage of this Bill. Amendment 15 is right in principle, but I accept that it will not win support, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11

Effect of extension of marriage

Amendment made: 25, page 11, line 8, leave out from ‘other’ to end of line 10 and insert

‘ecclesiastical law (whether or not contained in England and Wales legislation, and, if contained in England and Wales legislation, whenever passed or made).’.—(Maria Miller.)

Clause 15

Orders and regulations

Amendments made: 26, page 12, line 36, leave out from ‘order’ to ‘would’ in line 38 and insert

‘or regulations under this Act, except an order under section18(3), containing provision which’.

Amendment 27, in clause 15, page 12, line 40, leave out ‘consult’ and insert ‘obtain the consent of’.

Amendment 28, in clause 15, page 12, line 41, leave out from ‘order’ to ‘would’ in line 42 and insert

‘or regulations under this Act, except an order under section18(3), containing provision which’.—(Maria Miller.)

Clause 17

Extent

Amendments made: 51, page 14, line 1, at end insert

‘, except for section (Review of civil partnership)’.

Amendment 52, in clause 17, page 14, line 5, at end insert

‘, except for section (Review of civil partnership)’.—(Maria Miller.)

Schedule 2

Extra-territorial matters

Amendment made: 29, page 21, line 26, leave out sub-paragraph (5).—(Maria Miller.)

Schedule 3

Interpretation of legislation

Amendments made: 30, page 23, line 30, leave out from beginning to ‘legislation’ in line 32 and insert

‘In existing England and Wales’.

Amendment 31, page 24, line 7, leave out

‘which has effect as indicated in section 11(2)’.

Amendment 32, page 24, line 21, leave out

‘which has effect as indicated in section 11(2) and’.—(Maria Miller.)

Schedule 4

Effect of extension of marriage: further provision

Amendments made: 33, page 26, line 28, leave out from ‘courts)’ to end of line 30 on page 27 and insert

‘is amended in accordance with this paragraph.

‘(2) Subsection (1): after “entertain” insert “any of the following proceedings in relation to a marriage of a man and a woman”.

(3) After subsection (5) insert—

“(5A) Schedule A1 (jurisdiction in relation to marriage of same sex couples) has effect.”.

(4) Subsection (6): after “Wales” insert “(whether the proceedings are in respect of the marriage of a man and a woman or the marriage of a same sex couple)”.

7 Section 6 (miscellaneous amendments, transitional provision and savings), subsection (3): after “Act” (in the first place) insert “, or by virtue of Schedule A1 to this Act,”.

8 Before Schedule 1 insert—

“SCHEDULE A1

Jurisdiction in relation to marriage of same sex couples

Introduction

1 This Schedule shall have effect, subject to section 6(3) and (4), with respect to the jurisdiction of the court to entertain any of the following proceedings in relation to a marriage of a same sex couple—

(a) proceedings for divorce, judicial separation or nullity of marriage;

(b) proceedings for an order which ends a marriage on the ground that one of the couple is dead; and

(c) proceedings for a declaration as to the validity of a marriage.’.

Amendment 34, page 27, line 32, leave out ‘a divorce order’ and insert ‘divorce’.

Amendment 35, page 28, line 3, leave out ‘a nullity order’ and insert ‘nullity of marriage’.

Amendment 36, page 28, line 28, leave out from ‘for’ to ‘even’ in line 29 and insert

‘divorce, judicial separation or nullity of marriage’.

Amendment 37, page 28, line 32, leave out from ‘for’ to end of line 38 and insert

‘an order which ends a marriage on the ground that one of the couple is dead on an application made by the other of the couple (“the applicant”) if (and only if)—

(a) at the time the application is made, the High Court does not have jurisdiction to entertain an application by the applicant under section 1 of the Presumption of Death Act 2013 for a declaration that the applicant’s spouse is presumed to be dead, and’.

Amendment 38, page 28, line 44, leave out ‘of validity’ and insert

‘as to the validity of a marriage’.

Amendment 39, page 29, line 47, at end insert—

8A (1) Schedule 1 (staying of matrimonial proceedings in England and Wales: interpretation), paragraph 2: after “kinds” insert “(whether relating to a marriage of a man and a woman or a marriage of a same sex couple)”.

Transitory provision until commencement of Presumption of Death Act 2013

8B (1) This paragraph applies if section 1 of the Presumption of Death Act 2013 has not come into force at the time when the amendments of the Domicile and Matrimonial Proceedings Act 1973 made by the other provisions of this Part of this Schedule come into force.

(2) Schedule A1 to the Domicile and Matrimonial Proceedings Act 1973 has effect with the following modifications until section 1 of the Presumption of Death Act 2013 comes into force.

(3) Paragraph 1 has effect with the following provision substituted for paragraph (b)—

(b) proceedings for death to be presumed and a marriage to be dissolved in pursuance of section 19 of the Matrimonial Causes Act 1973; and”.

(4) Schedule A1 has effect with the following provision substituted for paragraph 3—

3 The court has jurisdiction to entertain proceedings for death to be presumed and a marriage to be dissolved if (and only if)—

(a) the applicant is domiciled in England and Wales on the date when the proceedings are begun,

(b) the applicant was habitually resident in England and Wales throughout the period of 1 year ending with that date, or

(c) the two people concerned married each other under the law of England and Wales and it appears to the court to be in the interests of justice to assume jurisdiction in the case.”.’.

Amendment 40, page 34, line 4, at end insert ‘, or

(c) married to a person of the same sex in a relevant gender change case.

“(1B) The reference in sub-paragraph (1A)(c) to a relevant gender change case is a reference to a case where—

(a) the married couple were of the opposite sex at the time of their marriage, and

(b) a full gender recognition certificate has been issued to one of the couple under the Gender Recognition Act 2004.”.’.

Amendment 41, page 34, line 13, after ‘(2)’ insert ‘—

(a) paragraph (a): after “man” insert “, or a woman in a relevant gender change case,”;

(b) ’.

Amendment 42, page 34, line 18, after ‘woman’ insert

‘(other than in a relevant gender change case)’.

Amendment 43, page 34, line 27, at end insert—

‘( ) After subsection (9) insert—

(10) In relation to an earner who is a woman, a reference in this section to a relevant gender change case is a reference to a case where—

(a) the earner is a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage of the earner and her widow (that ends with the earner’s death) subsisted before the time when the certificate was issued.

(11) This section is subject to regulations under section 38A.”.’.

Amendment 44, page 34, line 29, after ‘woman’ insert

‘or a woman married to a woman in a relevant gender change case’.

Amendment 45, page 34, line 32, after ‘woman’ insert

‘(other than in a relevant gender change case)’.

Amendment 46, page 34, line 34, at end insert—

‘( ) After subsection (3) insert—

(4) In relation to an earner who is a woman, a reference in this section to a relevant gender change case is a reference to a case where—

(a) the earner is a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage of the earner and her widow (that ends with the earner’s death) subsisted before the time when the certificate was issued.

(5) This section is subject to regulations under section 38A.”.’.

Amendment 47, page 34, line 35, leave out paragraph 20 and insert—

20 (1) Section 37 (alteration of rules of contracted-out schemes) is amended as follows.

(2) For subsection (4) substitute—

(4) The reference in subsection (3) to a person entitled to receive benefits under a scheme includes a person who is so entitled by virtue of a qualifying relationship only in such cases as may be prescribed.

(5) For that purpose a person is entitled to receive benefits by virtue of a qualifying relationship if the person is so entitled by virtue of being—

(a) the widower of a female earner;

(b) the widower of a male earner;

(c) the widow of a female earner, except where it is a relevant gender change case; or

(d) the survivor of a civil partnership with an earner.

(6) In relation to a widow of a female earner, the reference in subsection (5)(c) to a relevant gender change case is a reference to a case where—

(a) the earner is a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage of the earner and her widow (that ends with the earner’s death) subsisted before the time when the certificate was issued.

(7) This section is subject to regulations under section 38A.”.

20A Before section 39 insert—

“38A Regulations about relevant gender change cases

(1) The Secretary of State may, by regulations, make provision for—

(a) section 17,

(b) section 24D, or

(c) section 37,

to have its special effect in relevant gender change cases only if conditions prescribed in the regulations are met.

(2) Regulations under subsection (1) may, in particular, prescribe conditions that relate to the provision of information by—

(a) one or both of the members of married same sex couples, or

(b) the survivors of such couples.

(3) The Secretary of State may, by regulations, make further provision about cases where (because of regulations under subsection (1))—

(a) section 17,

(b) section 24D, or

(c) section 37,

does not have its special effect in relevant gender change cases.

(4) Regulations under subsection (3) may, in particular, provide for the section in question to have its ordinary effect in relevant gender change cases.

(5) Regulations under subsection (1) or (3) may, in particular, modify or disapply any enactment that concerns information relating to—

(a) the gender or sex of a person, or

(b) the change of gender or sex of a person,

including any enactment that concerns requests for, or disclosure of, such information.

(6) In this section, in relation to section 17, 24D or 37—

(a) “relevant gender change case” has the same meaning as in that section;

(b) “special effect” means the effect which the section has (if regulations under subsection (1) of this section are ignored) in relation to relevant gender change cases, insofar as that effect is different from the section’s ordinary effect;

(c) “ordinary effect” means the effect which the section has in relation to same sex married couples in cases that are not relevant gender change cases.”.’.—(Maria Miller.)

Schedule 6

Marriage overseas

Amendment made: 48, page 45, line 31, at end insert—

‘(2) In the case of an Order in Council containing provision which would (if contained in an Act of the Scottish Parliament) be within the legislative competence of that Parliament, no recommendation is to be made to Her Majesty under this paragraph unless the Scottish Ministers have been consulted.

(3) In the case of an Order in Council containing provision which would (if contained in an Act of the Northern Ireland Assembly) be within the legislative competence of that Assembly, no recommendation is to be made to Her Majesty under this paragraph unless the Department of Finance and Personnel has been consulted.’.—(Maria Miller.)

Title

Amendment made: 54, title, line 4 after ‘overseas,’ insert

‘and for the review of civil partnership,’.—(Maria Miller.)