The marriage vows involve an exchange of assurances. A wife's assurance that any of her potential offspring will be her husband's and a husband's assurance is that he will faithfully partner his wife in mutual support, including any potential offspring of the marriage as his own. The law recognises this with the presumption of paternity. If a man dies before his pregnant wife delivers his child, there is no onus upon the widow to prove her husband is the father.
Consummation is a standard part of all binding legal agreements. This is especially important when the law questions whether it was intention of both partners to view the commonly-held expectations as binding. Was there duress, or was it merely a hasty response to a casual infatuation? In establishing marriage as an institution, the law sets a minimum standard of mutual behaviour that demonstrates that both parties freely intended for the marriage to be treated as a binding commitment.
Before the 1857 Marriage Act was passed, consent to marry could be exchanged in private, rather than through an official ceremony. If the validity of the marriage was called into question by either partner, the inaugural act of coitus between a husband and wife served as demonstrable proof for honourable spouses of their intention to form a legally binding, sexually exclusive unit of biological kinship: the basis for a new offshoot of family. Courts could also examine pledges made in pre-marital correspondence between the parties.
So, sexual intercourse consummates the intentions of the parties to marriage. It is the demonstration of good faith in sexual exclusivity.
Although we now have formulaic vows of marriage exchanged before witnesses, the intention of either party for a lifelong sexual commitment can still be disputed. Any other kind of consensual sexual act does not connote (when considered with the exchange of solemn vows) an undertaking to build a unit of family together, since the potential for family is not involved in other acts.
In earlier press coverage, the proponents of same-sex marriage suggested that consummation was a ‘red-herring’ remnant of a past tradition. It shows the lengths to which the more radical elements in favour of same-sex marriage will go in re-defining marriage. It is now clear from the Government response that although consummation is understood to be a demonstration of openness to establish biological kinship, this element of marriage would now somehow have to be pressed into the service of same-sex marriage by maintaining a two-track system, one for each orientation. It is clear proof that while the motives for marriage and civil partnership may be the same, the cause of marriage, i.e. why it’s legally actionable is based on the foreseeable consequences of sexual intercourse, rather than any other kind of human affection. The law cannot enforce fidelity, but it can ensure that parties to a marriage are held accountable for the foreseeable outcomes of sexual intercourse within their committed partnership. Where marriage differs from any other relationship is that the institution relates biological parents to each other first as committed spouses and then to their own children, the normative outcome of heterosexual union.
Those who oppose this view of marriage often cite elderly, infertile and child-free marriages. ‘If marriage is about building a foundation for biological kinship’, they ask, ‘then why do we allow those without children to marry?’ Those who study logic among you know that it is a fallacy to apply a qualified exception to alter the general rule in an unqualified way: the converse accident. These are qualified exceptions. The vows of marriage are uniformly exchanged to encompass the *possibility*, rather than guarantee of offspring.
England’s father of the common law, William Blackstone, described the common law presumption of the lifelong heterosexual potential for offspring in this way: 'A possibility of issue is always supposed to exist in law, unless extinguished by death, even though the donees be each of them an hundred years old.’ (2 Blackstone Commentaries 125). A defence against the charge of adultery, that an unfaithful wife, past child-bearing age, could not taint the offspring of her husband (the original meaning of adultery) was dismissed on this principle.
Crucially, in law, you cannot be bound by exchanging marital assurances in a context in which the assurances have no meaning, e.g. permanent incurable impotence, yet this is exactly what same-sex marriage would uniformly entail. Non-consummation allows one party to consider the marital assurances to be invalid. Such a union can be annulled. In contrast, divorce would not be the remedy for this situation, as it does not return each partner to the state before entering the marriage. Yet, a same-sex relationship, by constitution, rather than by sterility, offers no assurances, or the slightest probability that the offspring are their own and no-one else’s. It intentionally, rather than incidentally, defeats the goal of these assurances exchanged in marriage.
It comes as no surprise therefore that the Government response to the consultation proposes a two-track system, in which non-consummation cannot be a ground for annulling a same-sex marriage. It is yet further proof that the shared social meaning of marriage needs to be demolished by the proposals. Whereas the meaning of marriage can evolve, it cannot do so in a way that destroys its inter-generational meaning. Otherwise, as is the case here, fundamental concepts are reduced to a mere trend. Changes to divorce laws are no comparison to this. Divorce existed long before the 1857 Marriage Act. It is only the civil jurisdiction, the possibility of re-marriage and the facts that warrant granting a divorce that have changed.
We all know the saying that ‘blood is thicker than water’. Finally, I would like to highlight one area in which gay marriage subordinates the primacy of biological kin that marriage currently upholds. It answers the question regarding how it would affect a fundamental right of those outside the gay community. The truth is that it will have an impact on the unrelinquished rights of biological fathers.
Currently, under the Human Fertilisation and Embryology Act 2008, the civil partner of the birth mother gains legal recognition as the second parent of a child conceived by assisted reproduction, but only if they use a UK licensed clinic. In licensed clinics, the donor consent uniformly relinquishes parental rights.
In contrast, married couples can employ less expensive informal assisted reproductive methods and the husband gains automatic parental recognition through the presumption of paternity. The law predicates this upon its respect for the vows of marriage and biological probability. Nevertheless, a biological father or surrogate in such a context may not wish to relinquish parental involvement and responsibility fully to a couple who have no blood ties to the child.
Let's say the proposals are implemented in the UK and a lesbian couple get married and they informally ask a friend to donate his sperm in order to have a child without recourse to an expensive licensed clinic. They agree together that he will share parental involvement and responsibility, but afterwards, find the arrangements intrusive and confusing. The law would now presume that the non-birth mother, who has no blood relationship to the child, to be the automatic second parent. The biological father will always lose out to a consistently fictional biological impossibility for every gay couple and case law proves that even DNA evidence will not improve the genetic father's chances of future involvement in his child's life.
The key difference is that, as far as the register office is concerned, the child of a heterosexual couple might have been conceived naturally. In the case of same-sex couples, the register office knows that the child could not possibly have been conceived naturally. The law would therefore be designed to override an informal parental agreement automatically to prioritise a rank impossibility for all same-sex couples.
What's contradictory is that those who insisted on the supreme biological rights of the mother over the unborn child when it comes to abortion, would now suggest that we deny that right to the biological father who has always wanted to participate in that child’s life..
Thus, the intention of the non-blood related partner would override the lifelong right of a child to know its committed blood-related father. This is not the same as adoption, which is subsidiary to biological parenting, i.e. where biological parenting has failed, been relinquished or is non-existent. This is overruling responsible biological parenting by prioritising a consistent impossibility in the case of same-sex couples. What changes would need to be made to HFEA to safeguard the rights of children to know a father who has not relinquished his participation in his child’s life.
Thus, marriage currently upholds the primacy of biological kinship as a foundation of good society. There are adequate legal provisions in civil partnership that do not alter the rights of biological fathers. There are adequate legal provisions in civil partnerships that do not uniformly prioritise a spouse with no blood relationship to a child above the rights of extended blood relations as well.
This is bad law and it deserves to be returned as such to those who drafted it.