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Mixed or same-sex: it’s all the same under the new law

The move towards gender neutrality is a core dimension of the Bill

While consummation by a heterosexual couple was well understood, it is unclear what constitutes consummation between two women or two men.

While consummation by a heterosexual couple was well understood, it is unclear what constitutes consummation between two women or two men.

A marriage can be annulled if the couple does not consummate it within three months or one of the spouses is impotent, but a lawyer has raised doubts over whether these clauses can be applied to married gay couples.

Justin Borg Barthet believes the Marriage Equality Bill presented by the government discriminates by failing to account for differences between mixed and same sex couples.

The law lecturer at the University of Aberdeen in Scotland has argued in a guest post on Manuel Delia’s blog that in trying to achieve equality of rights the government has created a poor fit – to the detriment of same-sex couples.

“Like the Civil Unions Act before it, the Marriage Equality Bill superimposes a heterosexual model on same-sex relationships,” he said, highlighting impotence and consummation, both grounds for nullity, as problem areas.

Contrary to Scots law delineating gay marriage, Dr Borg Barthet said the proposed Maltese law did not distinguish between same-sex couples and couples of different genders when it came to impotence.

“The exclusion of impotence as a ground for nullity in same-sex relations in Scotland is motivated by the different realities of same-sex and different sex couples,” Dr Borg Barthet said.

Equally problematic for same-sex couples, he added, is the regulation of consummation of marriage.  The Maltese law will differ from Scots law here too.

A valid marriage may be annulled at the request of one of the spouses on the ground that the other party has refused to consummate the marriage.

But Dr Borg Barthet said that while consummation by a heterosexual couple was well understood, it was unclear what constituted consummation between two women or two men.

“One might assume that penetration by one spouse of the other should constitute consummation. But it is equally arguable that one spouse could seek to annul the marriage where penetration occurred by one party but was ‘refused’ by the other,” he said. 

However, Silvan Agius, director human rights and integration at the Equality Ministry, rebutted the arguments, insisting that Malta opted for a different legal model that ensured equality for all.

He pointed out that in Scotland, England and Wales, gay marriage was regulated by distinct laws.

“We did not opt for a new legislative instrument dealing specifically with same-sex marriages but the Marriage Equality Bill amends the current laws thus ensuring that every individual is given the same rights and responsibilities,” Mr Agius said.

While Scots law was consulted extensively, the government could not blindly reproduce a law that still did not place same sex marriages at par with heterosexual marriages.

Mr Agius said Scots law was subject to a lot of criticism when it was introduced because it did not live up to the aspiration of equality. The differences highlighted by Dr Borg Barthet were a case in point, he added.

“By stating that non-consummation should not be a ground to annul a same sex marriage one is clearly denoting that same sex marriages are not on par with heterosexual marriages,” he said, adding consummation existed when sexual intercourse took place.

He said in the UK model the idea of consummation in the context of same-sex marriages was totally ignored, as if such act was a social taboo.

“Difficulty in establishing a definition of consummation in same-sex marriages should not stop any legislator from ignoring these realties,” Mr Agius said, adding that the same applied to impotence.

It will be up to the law courts, like it is with heterosexual couples, to determine whether a same-sex couple has grounds for nullity on the basis of non-consummation and impotence, he added.

“The law courts will have to take into account the new realities and adapt the law to them,” Mr Agius said.

He insisted the Marriage Equality Bill was developed to ensure all couples, regardless of sex and gender, were treated equally before the law.

“This is why the move towards gender neutrality is a core dimension of the Bill and any change in that regard is likely to give rise to unequal outcomes.”

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