On heterosexuals in same-sex marriage

The Referendum Commission has issued a statement, at the request of the Iona Institute, stating that it will be possible if the marriage referendum passes for two straight friends of the same sex to marry each other.  The question itself presupposes that this is not already possible for straight friends of the opposite sex.

 

In fact a marriage between two friends of opposite sex is already legally possible. They can only annul if they are unable to consummate. Even if a refusal to consummate did also render marriage voidable, it is likely the parties would potentially lose the right to avoid if they agree in advance that their marriage will be sexless.

 

Two straight men could marry in the same way if the referendum passes but (a) their marriage could be voidable on grounds of inability to form and sustain a normal and caring marital relationship with each other due to their sexual orientation (though again they could lose this right to avoid) and (b) why would they want to?

 

Let us examine the issue in more detail:

 

1. As things stand, two unrelated people of the opposite sex may marry right now even if they don't love each other. A marriage entered into solely to gain an immigration advantage may be blocked, but otherwise the motive of the parties is irrelevant. Provided both parties consent to marriage, the marriage is valid regardless of motive.

 

2. So right now, a man could marry his female platonic friend just to cash in on the wedding presents or to get tax breaks.

 

3. Their marriage would be voidable if they were UNABLE to consummate the marriage, for either physical or psychological reasons. But if they can consummate and they simply choose not to, their marriage is arguably valid. A dissenting judgment from the 1970s is sometimes relied on to suggest there might be a right to avoid where there is wilful refusal to consummate. This related, however, to a case where a husband had deceived his wife as to his true intentions. It arguably would not apply to a married couple who agreed their marriage would be sexless.

 

4. Voidable simply means the marriage can be avoided. If not avoided, it remains valid. If the marriage were voidable, they could lose the right to avoid by delay. They could also lose the right to avoid if they agreed or understood their marriage would be platonic. This has been established, for instance, in two English cases, Scott v Scott and Morgan v Morgan.

 

5. If the referendum passes, yes, two straight men could marry each other, even if they are just friends. But why would they? A) They'd have to explain repeatedly to friends, family, potential girlfriends that they are not gay; B) If they did meet the right girl, they'd have to wait four years to divorce and spend money on the process; C) It's not a very spontaneous prank; you have to give three months' notice!

 

6. There is an important caveat. As I have discussed here previously, at the moment, a marriage may be voidable if one of the parties is gay. If a party cannot form and sustain a normal marital relationship with his spouse because he is gay, the marriage may be voidable. Equality would require that a marriage between parties of the same sex may also be voidable where one of the parties is straight. So it is possible such a marriage would be voidable by analogy.

 

7. You can consummate a marriage without being able to procreate. Consummation is possible while using contraceptives, and in circumstances where the parties are too old to bear children. Notably the Scottish Law Commission 20 years ago recommended its abolition noting that it no longer made sense in a modern context, given that it was confined to sexual intercourse but not linked to procreation.