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THE IMPACT OF SAME-SEX MARRIAGE ON FAMILY LAW

INTRODUCTION

Same-sex marriage refers to the legal acknowledgment and validation of a relationship between persons of the same sex. They possess the same rights and privileges as persons who have spouses of the opposite sex. As society evolves, the traditions and culture also evolve which has changed the attitude of people towards same-sex marriage. This has resulted in its legalization and recognition in numerous countries. As a result, family law, which administers the laws relating to marriage, divorce, adoption, custody, and many other familial connections, has undergone substantial amendments and modifications in order to follow up with the rights of same-sex couples and families.[1]

Today same-sex marriage is recognized internationally which has a huge impact on family law. It has become an important element of family law. With couples increasingly crossing borders or residing in other jurisdictions, the recognition and validity of their marriage can vary, affecting their legal rights, duties, and entitlements in different nations.[2] It has become a challenging task to achieve consistency in legal frameworks and maintain harmony while recognizing same-sex marriage across the globe. This has not only impacted the legal framework but also opinions and societal conceptions. As same-sex marriage has been legalized in many parts of the world, now the focus is also made on the rights and issues of the LGBTQ+ community.[3]

THE EVOLUTION OF SAME-SEX MARRIAGE

The historical context of same-sex marriage is multifaceted and varied, with views and practices towards same-sex relationships varying between countries and time periods.[4] Same-sex marriage has expanded in recent decades, prior to that there are no such major shreds of evidence that supported the concept of same-sex marriage.

European nations transmitted their legal systems and cultural norms to other regions of the world throughout the colonial era. Among these legal systems, some of them considered same-sex marriage as a crime and subsequently provided no recognition of it. Such laws continued in many of the post-colonial countries and contributed to the persistent marginalization and discrimination of the LGBTQ+ community.[5]

In the twentieth century, there was a rise in LGBTQ+ activism. Initiatives were taken for their equal rights as the individuals who married or may marry a person of the opposite sex. Following the Stonewall Riots in 1969, which represented a watershed event in the battle against discrimination, the LGBTQ+ rights movement gained pace in the United States.[6] Activists started to promote same-sex marriages and later on, it was regarded as a civil rights and equality issue.[7]

In the twenty-first century, opinions towards same-sex marriage in the United States evolved significantly. Massachusetts was the first state to legalize same-sex marriage in 2004, and other states gradually followed suit.[8] However, it wasn’t until 2015 that the United States Supreme Court concluded in Obergefell v. Hodges that same-sex marriage was a constitutional right, paving the way for national legalization.[9]

The history of same-sex marriage marks, not legislative developments, but also alters public attitudes and opinions towards the same. The public has become more accepting and supportive of same-sex marriages throughout time. Due to increasing exposure, education, advocacy, and personal connections contribution toward the humanization of LGBTQ+ people and their circumstance have increased.

ACKNOWLEDGMENT OF SAME-SEX MARRIAGE IN FAMILY LAW

  • Legalizing Same-Sex Marriage:

One of the most important acknowledgments of same-sex marriage in family law is the legalization of marriage between people of the same sex. This recognition gives same-sex couples the opportunity to enter into a legally recognized marriage, with all of the privileges and obligations that entails. Legalization often entails modifying current marriage laws to eliminate gender-specific terminology and making marriage available to all partners, regardless of sexual orientation.

  • Rights and advantages:

The recognition of same-sex marriage assures that same-sex couples have the same rights and advantages as opposite-sex couples inside the institution of marriage.[10]

Spousal rights

Same-sex spouses have the ability to make medical decisions for their partners, receive healthcare benefits, and be regarded as the next of kin in judicial proceedings.

Parental rights

 Same-sex spouses have legal parental recognition, which allows them to adopt children together, use reproductive technology for family creation, and establish legal parent-child ties.

Financial and property rights

Same-sex spouses enjoy the same rights as married couples to jointly own property, inherit from each other, and take advantage of tax breaks and financial safeguards.

MARRIAGE EQUALITY

Marriage equality in same-sex marriage refers to the opinion that same-sex couples should have the same legal rights, privileges, and responsibilities within the institution of marriage as opposite-sex couples. It supports legal recognition and equal treatment of same-sex marriages and guarantees that every person, regardless of sexual orientation, has the right to marry the person they love and want to live with.[11]

Marriage equality relies on the argument that denying same-sex couples the right to marry constitutes discrimination and a violation of basic human rights. It acknowledges that love, commitment, and the desire to build a lifetime partnership are not limited to opposite-sex couples, but should be respected and protected for all couples.[12] Their choices and opinions must be taken into consideration and should not be judged on the same basis.

ACCEPTANCE ACROSS BOUNDARIES

The legal acceptance of same-sex marriage has ignited discussions about recognition across boundaries. The recognition and validity of same-sex marriages may differ across the globe due to different jurisdictions. Efforts are made to normalize same-sex marriage and secure its recognition throughout the world. They must be given equal rights and their rights must be protected just like any other human being.[13]

CULTURAL AND RELIGIOUS CONSIDERATIONS

The legalization of same-sex marriage has led to many opinions, discussions, and debates about cultural and religious concerns on a daily basis. Some religious organizations continue to reject same-sex marriage recognition due to religious convictions whereas some of them have accepted the same. Balancing same-sex couples’ rights with religious freedom is a continuous challenge that respects their rights and also defends them at the same time.

DIVORCE AND DISSOLUTION

The formal as well as legal recognition of same-sex marriage includes provisions for divorce and dissolution of same-sex marriages. Same-sex couples, like opposite-sex couples, have the legal right to dissolve their marriage through divorce or any other dissolution proceedings. This guarantees that same-sex couples have access to legal protections and procedures for asset division, child custody, and spousal maintenance in the event of their marriage’s dissolution.[14]

PARENTAL RIGHTS AND ADOPTION

Recognizing same-sex marriage in family law has serious consequences for parental rights and adoption. Adoption as well as assisted reproductive technologies now provide equal chances for same-sex couples to form legal parent-child relationships.[15] This recognition ensures that same-sex couples can create secure and supportive homes for their children while also protecting their parental rights in the event of separation or divorce. Parental rights and the best interests of the child are considered in circumstances of separation or divorce, just as they are in opposite-sex marriages. The kid’s well-being and the circumstances of the parents involved are used to decide custody arrangements, visiting rights, and child support obligations. To guarantee the best outcomes for the children involved, same-sex couples are provided the same legal rights and considerations.

CONCLUSION

To summarize, the legalization of same-sex marriage impacts family law worldwide. Legalizing same-sex marriage and granting same-sex couples equal rights, benefits, and protections within the institution of marriage ensures that all individuals, regardless of their gender have access to the fundamental rights and benefits of marriage. Recognizing same-sex marriage in family law promotes equality and contributes to fairer and just treatment. It acknowledges that love and commitment are not gender-based and that all couples, regardless of sexual orientation, should be able to marry and enjoy the legal, social, and emotional benefits and rights that any marriage affords. Divorce, child custody, adoption, and many other such laws have all changed significantly since same-sex marriage was legalized. Same-sex couples might have earlier experienced legal hurdles or barriers related to such matters, including property partition, parental rights, and adoption agencies. As society evolves and changes, the influence of same-sex marriage on family law will remain a topic of study and debate.

Author(s) Name: Neha Popat (Department of Law, Veer Narmad South Gujarat University, Surat)

References:

[1] Ishank Bangarwa, Analysis: Same-Sex Marriage in India, (Legal Services India) https://www.legalserviceindia.com/legal/article-8025-analysis-same-sex-marriage-in-india.html accessed date 29 June 2023

[2] Patrick R. Wautelet, Cross Border Same Sex Relationships – Private International Law Aspects, (2012), Legal Recognition of Same-Sex Relationships https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2037721 accessed date 29 June 2023

[3] Editors, Marriage Equality: Global Comparisons, (Council on Foreign Relations, December 22, 2022) https://www.cfr.org/backgrounder/marriage-equality-global-comparisons accessed date 29 June 2023

[4] Jacob Poushter, Sneha Gubbala and Christine Huang, How people in 24 countries view same-sex marriage, (Per Research Center, June 13, 2023)https://www.pewresearch.org/short-reads/2023/06/13/how-people-in-24-countries-view-same-sex-marriage/ accessed date 29 June 2023

[5] Editors, same-sex marriage, (Britannica, June 28, 2023), https://www.britannica.com/topic/same-sex-marriage accessed date 29 June 2023

[6] A Movement Takes Shape, (National Park Services) https://www.nps.gov/ston/learn/historyculture.htm accessed date 29 June 2023

[7] Editors, same-sex marriage, (Britannica, June 28, 2023), https://www.britannica.com/topic/same-sex-marriage accessed date 29 June 2023

[8]  Editors, First legal same-sex marriage performed in Massachusetts, (A & E Television Networks, July 21, 2010) https://www.history.com/this-day-in-history/first-legal-same-sex-marriage-performed-in-massachusetts accessed date 29 June 2023

[9] Obergefell v. Hodges [2015] 576 U.S. 644

[10] Akshat Anunay, Same Sex Marriages in India: A complete overview, (Times of India, May 06, 2023) https://timesofindia.indiatimes.com/readersblog/dopamineffable/same-sex-marriages-in-india-a-complete-overview-53507/ accessed date 29 June 2023

[11] Tom Rosentiel, An overview of the Same-Sex Marriage Debate, (Pew Research Center, April 31, 2008) https://www.pewresearch.org/2008/04/01/an-overview-of-the-samesex-marriage-debate/ accessed date 29 June 2023

[12] Universal Declaration of Human Rights at 70:30 Articles on 30 Articles – Article 16 (Office of the High Commissioner for Human Rights, November 25, 2018) https://www.ohchr.org/en/press-releases/2018/11/universal-declaration-human-rights-70-30-articles-30-articles-article-16 accessed date 29 June 2023

[13] Same Sex Marriage, (Legal Service India) https://www.legalserviceindia.com/articles/semar.htm accessed date 29 June 2023

[14] Shvet Sharma, Same Sex Divorce, (Legal Service India) https://www.legalserviceindia.com/legal/article-7021-same-sex-divorce.html accessed date 29 June 2023

[15] Shohom Roy, Adoption rights of same-sex couples, (iPleaders, October 7, 2021) https://blog.ipleaders.in/adoption-rights-of-same-sex-couples/ accessed date 29 June 2023