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Marriage

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Marriage is a relationship between individuals which has formed the foundation of the family for most societies. Marriage can include legal, social, and religious elements. In Western societies, marriage has traditionally been understood as a social contract between a man (husband) and a woman (wife), while in other parts of the world polygamy has been the most common form of marriage. Usually this has taken the form of polygyny (a man having several wives) but some societies have practised polyandry (a woman having several husbands). In some western societies today, same-sex marriages or civil partnerships are legally recognized, but remain a highly controversial issue in most.

Civil Partnerships

In December 2004, the United Kingdom introduced the Civil Partnership Act 2004, which legally recognizes unions between same-sex couples.

The Act creates a new legal relationship based on civil partnership, which two people of the same sex can form by signing a registration document. It further provides these same-sex couples with parity of treatment in a wide range of legal matters equal to opposite sex couples who enter into a civil marriage.

Important rights and responsibilities follow the formation of a civil partnership. Provisions in the Act include:

  • a duty to provide reasonable maintenance for a civil partner and any children of the family;
  • civil partners to be assessed in the same way as spouses for child support;
  • equitable treatment for the purposes of life assurance;
  • employment and pension benefits;
  • recognition under intestacy rules;
  • access to fatal accidents compensation;
  • protection from domestic violence; and
  • recognition for immigration and nationality purposes.

Denmark introduced the first civil partnership status in 1989. The following countries now have some form of civil partnership registration: Belgium, Canada (Quebec, Nova Scotia), Denmark, Finland, France, Germany, Iceland, Netherlands, New Zealand, Norway, Sweden, USA (in Vermont, New Jersey, and Oregon, domestic partners, after registering their relationship with the state and affirming their enduring commitment to each other, are treated in a manner identical with or similar to the treatment of married opposite-sex couples. Most domestic partnerships, however, are not so expansive.[1])

The UK’s civil partnership status is not the same thing as gay marriage: only the Netherlands and Belgium have legislated to allow gay marriage so far.

Same sex marriage

For information on the status of same sex marriage around the world, see the article at Wikipedia

Same-sex marriage is permitted in five of the 50 U.S. states:

  • In Massachusetts, Connecticut, Iowa, and Vermont, marriages for same sex couples are legal and currently performed.
  • In New Hampshire, same-sex marriages will begin on January 1, 2010.
  • Washington D.C. city council approved a bill legalizing same-sex marriage by a vote of 11-2, it is expected to be signed into law and not be vetoed by congress.

States which previously allowed same-sex marriage:

  • In California, same-sex marriages were performed between June 16, 2008 and November 4, 2008. The marriages that were performed during this period are still recognized. On October 12, 2009, Governor Schwarzenegger signed SB 54 allowing same-sex marriages from other states or foreign countries performed on or before November 4, 2008, to be recognized as well.

Same sex marriage rights were confirmed by the California Supreme Court in May of 2008 but a ballot proposition, Proposition 8 (2008), limiting marriage to one man and one woman, was passed by 52% of the general populace thereby eliminating those rights. The validity of the proposition was upheld by the California Supreme Court in May of 2009 while simultaneously affirming the validity of some 18,000 same sex marriages that were performed in the months between the original court decision and the passage of Proposition 8. A lawsuit has been filed to challenge the constitutionality of the amendment created by Proposition 8 in federal court. This lawsuit is expected to be appealed all the way up to the Supreme Court of the Untied States.

  • On the 3rd of November 2009, voters in Maine passed "Question 1" which nullified an order signed by Maine’s governor in May of the same year allowing for same gender marriage.

States which recognize same-sex marriage but do not grant same-sex marriage certificates:

  • In New York, same-sex marriages from other states or foreign countries are recognized but they are not performed.
  • In Rhode Island, two opinions of the attorney general suggest that same-sex marriages should be recognized, but a state Supreme Court opinion appears to contradict this position; same-sex marriages are not performed in Rhode Island.

Transgender and intersex persons

When sex is defined legally, it may be defined by any one of several criteria: the XY sex-determination system, the type of gonads, or the type of external sexual features. Consequently, both transsexuals and intersexed individuals may be legally categorized into confusing gray areas, and could be prohibited from marrying partners of the "opposite" sex or permitted to marry partners of the "same" sex due to legal distinctions. This could result in long-term marriages, as well as recent same-sex marriages, being overturned.

The problems of defining gender by the existence/non-existence of gonads or certain sexual features is complicated by the existence of surgical methods to alter these features. Estimates[1] run as high as 1 percent of live births exhibiting some degree of sexual ambiguity, and between 0.1% and 0.2% of live births being ambiguous enough to become the subject of specialist medical attention, including sometimes involuntary surgery to address their sexual ambiguity.[2]

In any legal jurisdiction where marriages are defined without distinction of a requirement of a male and female, these complications do not occur. In addition, some legal jurisdictions recognize a legal and official change of gender, which would allow a transsexual to be legally married in accordance with an adopted gender identity.[3]

Marriage for Transsexuals in the United States

In the United States, transsexual and intersexual marriages typically run into the complications. As definitions and enforcement of marriage are defined by the states, these complications vary from state to state.[4]

Questions about the legal framework for marriage between a formerly different sex couple, where one member has transitioned from one sex to another, are common. There is no legislative or case law that provides for special treatment concerning such couples. Generally speaking, marriage in legal terms is a binding contract which, if it is entered into legally, cannot be dissolved unless one of the members dies or divorces the other. Therefore, a "transitioned couple" is one of the few and, in some states, the only legal way to have a same-sex marriage.

The legal landscape for transsexual people who marry after they transition is much more vague. Court decisions in some states have supported the validity of these marriages while other states have declared them invalid. In 1999, for example, an appellate court in Texas invalidated a seven year marriage between Christine Littleton, a transsexual woman, and her deceased husband. The case arose when Ms. Littleton brought a wrongful death suit seeking damages for her husband’s death as a result of alleged medical malpractice. Rather than ruling on the merits of Ms. Littleton’s suit, the court held that a person’s legal sex is genetically fixed at birth and that Ms. Littleton should be deemed to be legally male, despite her female anatomy and appearance, and despite the fact that she had lived as a woman for most of her adult life. As a result of that decision, Ms. Littleton was denied all of the rights afforded to a legal spouse including not only the right to bring a wrongful death suit, but also the right to intestate inheritance, to obtain her deceased husband’s Social Security and retirement benefits, and other rights.

By contrast, in 1998, a trial court in Orange County, California affirmed the validity of a marriage involving a transsexual man. The case arose when the wife sought to invalidate the marriage in order to deprive her husband of his parental rights concerning the couple’s child, who was born through alternative insemination. Fortunately, the trial court rejected the wife’s argument that the transgendered husband should be considered legally female and refused to nullify the marriage. The court held that California law recognizes the post-operative sex of a transsexual person for all legal purposes, including marriage. Notably, however, if the court had ruled differently, or if the transgender spouse had not undergone extensive and expensive sex reassignment surgeries prior to the marriage, it is possible that he would have lost any right to maintain a relationship with his child.

The unfortunate conclusion may be drawn that marriage to either sex has potential legal pitfalls for a transsexual person. In many states, no legal document will allow a transperson to marry someone no matter how many surgeries they've had.

Marriage for Transsexuals in the United Kingdom

In the United Kingdom, the Gender Recognition Act 2004 allows a person who has lived in their chosen gender for at least two years to receive a gender recognition certificate officially recognizing their new gender. Because in the UK marriages are for mixed-sex couples and civil partnerships are for same-sex couples, a person must dissolve his/her marriage or civil partnership before obtaining a gender recognition certificate. Such persons are then free to enter or re-enter civil partnerships or marriages in accordance with their newly recognized gender identity.

References

  1. ↑ (Fausto-Sterling et al., 2000)
  2. ↑ How common is intersex?. Intersex Society of North America. Retrieved on 8 March 2007.
  3. ↑ Bockting, Walter, Autumn Benner, and Eli Coleman. "Gay and Bisexual Identity Development Among Female-to-Male Transsexuals in North America: Emergence of a Transgender Sexuality." Archives of Sexual Behavior 38.5 (Oct. 2009): 688-701. Academic Search Premier. EBSCO. 29 Sep. 2009
  4. ↑ SCHWARTZ, JOHN. "U.S. Defends Marriage Law." New York Times (19 Sep. 2009): 12. Academic Search Premier. EBSCO. 29 Sep. 2009

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*Some information provided in whole or in part by http://en.wikipedia.org/

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