The government rightly wants equal rights for everyone.  With regards to marriage this means that while people can be prevented from marrying if there is a ‘good reason’, being lesbian, gay, bisexual or transgender will never again be counted as a good reason.   However, the picture as to whether those identifying as non-binary can marry is less clear.

The road to same sex marriage began with the advent of civil partnerships in 2005.

Civil partnerships allowed two men or two women to make their vows to each other so the law would see them as a couple.  While civil partnership is not the same as marriage, civil partners do get many of the same rights as married people.

This was followed by The Marriage (Same Sex Couples) Bill in 2013.  

This passing of this historic Bill finally allowed same sex couples to marry in both civil and religious ceremonies (as long as the relevant religious organisation has ‘opted in’ to conduct such ceremonies and the minister of religion agrees) and enables civil partners to convert their partnership to a marriage should they wish to.

The Bill also allows married individuals to change their legal gender without having to end their marriage.

While The Marriage (Same Sex Couples Bill) has forced radical changes to the law around marriage, more recently it has forced considerable discussion regarding exactly how non-binary couples can cement the legal status of their relationships.

The UK Census in 2021 was the first to provide data on gender identity and sexual orientation.  Its results estimate there are now 262,000 people who identify as transgender.  Of these, 30,000 identify as non-binary.

What is the current legal position for those identifying as non-binary?

There is currently no recognised legal status for those identifying as non-binary in the UK.  

The Gender Recognition Act 2004 gave people the choice to legally change the sex recorded on their birth certificate but only from female to male or male to female.  There are no provisions for any other gender identity and the Government has said they do not currently plan to make any revisions to the Act.

This leaves those identifying as non-binary in an unwelcome and uncertain limbo.

Can non-binary people marry?

As individuals identifying as non-binary are not legally recognised, they are currently unable to marry or enter into a civil partnership as marriage and civil partnership are only viewed as being ‘opposite sex’ or ‘same sex’.

This means that even though one does not need to state their gender on a marriage certificate, to get married or enter into civil partnership both parties would have to produce a valid passport or birth certificate along with formal proof of their new name if they have changed names on their journey.  This presents a problem for non-binary people.  These forms of identification will only confirm their original binary gender.  

In contrast, a trans person would still be able to get married.  They will have been given a full gender recognition certificate and this will be taken into consideration with their proofs of identity as long, of course, as their newly recognised gender is either male or female.

Under these conditions it is probably easiest for non-binary people not to marry or enter in to a civil partnership.  However, this is hardly fair.  

Not being married or civil partners means they will not enjoy the same legal rights as a married person.  They will not be able to leave money, property or assets to their loved one when they die.  Neither will they be able to call on the same legal protection if their assets need to be fairly divided should their relationship break down.

Surely, ensuring the  blanket provision of these rights alone should be enough to force the Government to reconsider their stance on updating the Gender Recognition Act?

Fortunately, divorce and dissolution are slightly more fair.

As a non-binary person once can get divorced or dissolve their civil partnership without having to state their gender.  This means non-binary individuals can separate without having to provide a binary gender identity.  

Under current legislation they can also apply for a divorce or dissolution using the name they now use rather than using the name they gave on their marriage or civil partnership certificate.

If you or one of your clients would like to discuss any of the topics raised in this blog with one of our experienced family law barristers, please contact us today.

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