The law’s view of sexual relations in marriage: from central to peripheral?

Sex, marriage, and rock and roll: why sexual relations are becoming less central to the legal and social definitions of marriage and family relationships

Whilst civil partnerships (CPs) and marriage are available to all, the social paradigms attached to these labels still divide society. Marriage is imbued with tradition and religious ideologies, and consequently, only one in eight civilly partnered couples have converted to marriage.

Although contemporary developments have been welcomed, the law has not thoroughly broken ties with conventional gender-static doctrine. Sexual relationships should no longer be at the core of marriage or family life. Therefore, the definitions of sex and gender should no longer be held as a centrality in legislation but rather, on the periphery of the notion of care.

The nature of marriage and the role of family law

With family law having a safeguarding purpose, it has been asserted that heterosexual marriage is the best union for societal and reproductive success. Although anachronistic statutes exist, such as children being illegitimate under void marriages, recent case law rectifies such shortcomings (Re Moynihan (2000)) to produce values that are increasingly less aligned with sexual relationships and more aligned with caring relationships. Marriage has lost its significance as the only relationship exclusively defined by sex.

Do sexual relationships still define marriage?

Assertions that marriage previously represented the primary expression of intimate belonging are contested by views that the sexual relationship within marriage is peripherally important.

Amid more liberal social views with regards to casual, polyamorous sexual behaviours, it is unsurprising that sex is losing its historical significance in defining the union of marriage. Instead, a care threshold should demarcate relationships. Thanks to a contraceptive revolution, sex can be separated from reproduction to make sexual freedom an option. Therefore, sex does not have to be confined to marriage or desire to reproduce. This has undermined the importance of sex in marriage, reducing it from central to peripheral.

Marriage and civil partnerships

There are differences between CPs and marriage, despite Baroness Hale asserting that CPs have “virtually identical legal consequences to marriage” in M (2006). The inability for the partnership to be voidable under non-consummation, venereal disease and adultery grounds are the most important. Whilst CPs reflect marital status when in the partnership, the inability for these grounds to stand in dissolution, even after the M(SSC)A, is telling of a de-sexed narrative.

The differences are, in practice, negligible because nullity is rarely used, especially in liberal, non-religious scenarios, but they display the court’s reluctance to acknowledge gay sex as equal to heterosexual sex. The legislature’s shyness in confronting physical intimacies show same-sex sexual encounters, and wider topics of anatomical facets of sex and gender, as things that should not be discussed. This creates a dangerous rhetoric whereby lawmakers are out of touch, frigid and consciously or unconsciously turning away from such discussions.

The introduction of the CP(OSC)R displays a willingness to include heterosexual couples into homosexual standards but not vice versa. CPs are less gendered and viewed as untainted by patriarchal and religious associations. This displays how sex and sexuality have formerly been controlled by religion and why heterosexual couples may believe a legally binding, but not so religiously and historically symbolic, union would benefit them. Whilst sex and sexuality have been a defining aspect of marriage, individuals are consciously shifting away from this union because it does not mirror their contemporary values. Marriage, and sex within it, is no longer seen as a social norm or necessity.

Transgender individuals and sexual relationships

Sex also applies to individuals regarding their gender, and the Gender Recognition Act 2004 (GRA) fosters a “trans-hostile” environment, according to a 2019 IGYLO report.

Case law has failed, up until recently, to feature transgender recognition and where it does, it is presented as an issue alongside archaic doctrines such as marriage.

The incompatibility of section 11(c) MCA with European Human Rights provisions does, however, signal a growing movement towards acceptance for adults who wish to be the opposite gender within relationships.

Yet, this has been challenged by surgery requirements maintaining primacy in acquiring a GRA certificate. The law continues to categorise gender and proliferate gender norms, despite the relatively progressive introductions of the CP(OSC)R and the M(SSC)A. This treatment of transgender individuals heightens the need to depart from sex being at the heart of relationships. General awareness of gender dysphoria is uninformed and may take on an exotic narrative if the law confines their relationships to misconceptions about the sex they are engaging in. Instead, the caring aspects of a relationship should be heralded as the most significant defining factor.

The evidence shows that sexual relationships should not be at the heart of marriage or family law because people’s lived realities have unsuccessfully been engaged with by the Government and Judiciary if they are not heteronormative. Instead, caring relationships should be a central focus.

Charlotte Cheshire is an LPC and LLM Student at the University of Law and an aspiring solicitor.