Marriage and proposals for change
There is a continuing debate about Marriage and the meaning of Marriage.
In 2011 Mostyn J addressed the all party parliamentary group on family law and spoke about what marriage was from a legal perspective. The speech can be read via the report here
Historically marriage was more about children than adults. Today, however, from a legal perspective it is mainly about an ill defined economic contract which can cost at lot of money to terminate.
The aspects of family law that relate to the care of children have been taken substantially outside the law of marriage. Additionally in the last parliament the common law duty of a husband to care for his wife was abolished - without a peep from anyone at the time.
Hence Marriage today is mainly legally about divorce law.
Generally family law in the English and Welsh jurisdiction has evolved through the courts with an element of intervention from parliament. However, because it is not the sort of things that fits into a government/opposition form of debate it has not been effectively considered by parliament.
Hence we now encounter a situation where from a legal perspective Marriage is something where any legal duties that are enforceable are enforced through divorce law. Furthermore it is a legal entity that concentrates on the adults rather than the children.
Within this context there is no reason why it would require both partners to not be of the same sex. There is a separate and more important question as to whether our family law should concentrate more on the interests of the children than the adults. I take the view that this would be sensible. However, that is not where we are at at the moment.