Thursday, 29 March 2012

Marriage is not just about two people

The report of the European Court of Human Rights ruling regarding the recently decided civil partnership adoption rights case is by itself more fascinating than any of the headline grabbing journalism about it. Please see the English summary. It supported the refusal of French authorities to authorise an adoption that would transfer parental rights from a child’s biological mother, Ms. Dubois to her civil partner, Ms. Gas.

We might be tempted to think that an adoptive transfer of parental responsibility to Ms Dubois's civil partner would be the best way of securing the primacy of Ms. Gas's parental rights over all other family claims, especially should Ms Dubois die prematurely. The French authorities rightly saw that this was not in the best interest of the child, given that should their partnership be dissolved, it could inadvertently challenge her own access to her biological child. Marriage, given the body of case law, is the only exception in which the parental responsibility is shared between the biological parent and the adoptive husband, or wife.

But surely, this is discriminatory? Well, no. Had there been a French prohibition on forming opposite-sex civil partnerships (as there is in the UK), the Strasbourg court would most certainly have viewed the adoption ban as discriminatory. In fact, opposite-sex civil partners in France equally fall foul of this limitation on the transfer of parental rights. So, in this case, the adoption refusal was *not* about sexual orientation, however loud others might scream to the contrary.

In a sense, the limit on the right to marry is the final counter-argument. Surely, it was the lack of access to marriage that scuppered the couple's bid to share parental rights over Ms. Dubois' child. The blunt answer is that EU governments are under no obligation to extend marriage to same-sex couples. The legal implications for the church can only be applied, once same-sex marriage has been granted, not before.

The approach of the French authorities is vastly preferable to the 'blue skies' thinking that permeates the current UK government proposals for re-defining marriage and that leaves off defining a gender-free common standard for annulment through non-consummation and even adultery as issues for judges to unravel under case law.

This case does highlight the very real problems in extending the rights of marriage beyond its historic definition and without discerning the full implications. Marriage is clearly NOT just about two people who love each other. It can naturally trigger legal consequences far beyond those two people; consequences that matrimonial case law has thoroughly considered. Marriage also carries a gravitas (derived from human history and supported by case law) and an essential framework of commonly held mutual obligations that can be relied upon in law. It is this gravitas, when compared to the relative informal ease in ending civil partnerships, which led the French authorities to restrict the sharing of parental rights via adoption to married partners.

While it is a painful outcome for the couple, we return to Lord Penzance's 1866 statement in Hyde vs. Hyde: 'It may be, and probably is, the case that the women there pass by some word or name which corresponds to our word “wife.” But there is no magic in a name; and, if the relation there existing between men and women is not the relation which in Christendom we recognise and intend by the words “husband” or “wife,” but another and altogether different relation, the use of a common term to express these two separate relations will not make them one and the same, though it may tend to confuse them to a superficial observer'

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