SC hearing pleas on same sex couples’ right to marry: What is civil union, how is it different from marriage

Same sex marriage issue in SC: The CJI clarified that the hearing’s scope would be limited to developing a notion of a “civil union” that finds legal recognition under the Special Marriage Act.

difference between civil union and marriage

Although a civil union resembles a marriage, there are some differences between the two. (Picture for representation)

3 min readNew DelhiApr 18, 2023 08:16 PM IST First published on: Apr 18, 2023 at 08:03 PM IST

A five-judge bench of the Supreme Court, headed by Chief Justice of India DY Chandrachud, Tuesday began hearing a batch of petitions seeking legal recognition of same sex marriage.

While the Centre, through Solicitor General Tushar Mehta, contested the maintainability of the petitions, and also the judiciary’s right to confer legal recognition on the “socio-legal institution” of marriage, the CJI clarified that the hearing’s scope would be limited to developing a notion of a “civil union” that finds legal recognition under the Special Marriage Act.

What is a civil union?

A “civil union” refers to the legal status that allows same-sex couples specific rights and responsibilities normally conferred upon married couples.

Although a civil union resembles a marriage and brings with it employment, inheritance, property, and parental rights, there are some differences between the two.

How is a civil union different from marriage?

In the year 2015, the Supreme Court of the United States (SCOTUS) legalised same-sex marriages across the nation with its landmark ruling in “Obergefell v. Hodges”.

Prior to the 2015 ruling, a majority of the US states had civil union laws that allowed same-sex couples to marry, without providing them formal recognition of the same.

Also in Explained | Why child rights panel thinks adoption by same-sex couples may harm children

These civil unions would be accompanied by rights such as inheritance rights, employment benefits to spouses, joint parenting or joint ownership rights, and the right to abstain from testifying against one’s partner — similar to the spousal privilege given under Section 122 of the Indian Evidence Act, when it comes to disclosure of communication between two spouses.

A big difference between civil unions and marriages was that the former was recognised solely by issuing states and not by federal law. This created a situation where such couples could not enjoy the benefits of being in a civil union, uniformly, across all states. Since the US had a system where states had to determine their own marriage laws, this disparity of recognition existed.

In the wake of the legalisation of same sex marriages, several civil unions were converted into marriages.

What other countries allow civil unions?

The United States is just one of the countries that allows same sex unions.

Before 2009, the year that Sweden legalised same sex marriages, LGBTQ couples there could apply for civil unions and enjoy benefits such as the right to adopt. Similarly, from 1993, couples in Norway enjoyed the right to enter into civil unions, which gave way to a new law 15 years later, allowing such couples to marry, adopt and undergo state-sponsored artificial insemination.

In Austria, same-sex couples could form civil partnerships between the years 2010-2017. However, this changed with a court ruling that deemed civil unions discriminatory in January 2019, when such marriages were legalised.

Similarly, countries like Brazil, Uruguay, Andorra, and Chile had also recognised the right of same sex couples to enter into civil unions, even before they formally recognised their legal right to marriage.