For those who enjoy debating the politics of same-sex marriage, the Act provides a fertile source of material on which one can speculate whether the legal recognition of same-sex relationships is assimilationist (buying into an idealised heterosexual model of coupledom) or transgressive (challenging patriarchy by not conforming to a heterosexual, gendered model). However, the reason that this debate (certainly in the USA) appears interminable is precisely because it is unresolvable, in part because the regulation of sexual practice by the state is inevitably, as Davina Cooper has argued, ‘complex, uneven and contested’.[134] It all depends upon the context, and there is no simple answer.
A more productive analytical approach is to look at the Act in terms of what it suggests regarding the role and function of family in law, such as the connection between relationship recognition and resources, and indeed, the public-private dichotomy itself.[135] Within the explanatory material and the debates, the role of relationships in promoting the privatisation of financial responsibility for care is apparent and explicit: ‘The registration of a civil partnership involves both legal obligations as well as legal protections.’[136] Furthermore, one opts into this package of rights and responsibilities as a whole, with no possibility for ‘pick and mix’. As a consequence, as the Financial Regulatory Impact Assessment makes clear, to repeat: ‘Stable relationships also benefit the economy. It is expected that civil partners would share their resources and support each other financially, reducing demand for support from the State and, overall, consuming fewer resources.’[137] To receive the financial benefits of a marriage-like status, the responsibilities attach. The quid pro quo is explicit.
The most obvious example of this privatisation of responsibility is in the joint treatment for income-related benefits, which raises the possibility that registration will be financially detrimental for some couples. At this point, the government clearly recognises the problem of incentives. As the framework document makes clear:
The Government proposes that civil partners should be treated as a single family unit for income-related benefit purposes. In addition, where appropriate unregistered cohabiting same-sex couples should also be assessed as a single family unit as is the case for unmarried cohabiting opposite-sex couples. The Government will ensure that this matter is handled sensitively. . . Treating same-sex couples (where registered or unregistered), in the same way as opposite-sex couples (whether married or unmarried) in relation to income-related benefits is the best way to ensure fairness and ensures that a same-sex couple who wish to register a civil partnership would not be financially worse off than they would be if they chose not to register their partnership.[138]
Consequently, even if a couple choose not to ‘buy into’ the package of rights and responsibilities, they could be determined to be liable to treatment as a single family unit. Thus, the package of responsibilities is not quite as voluntary as is originally claimed, and this demonstrates the way in which cohabitation slides into an expectation of financial dependence, and how cohabitation and partnership are merged. As a consequence, we continue to have the spectre of the state determining when an unregistered couple is a couple for the purposes of financial responsibility, when they are flatmates, and when they are ‘just friends’ — categories that a queer critical analysis in large measure is designed to trouble.[139] Queer politics questions why partnerships which appear to mimic the most traditional aspects of heterosexual marriage are privileged while others are constructed as less deserving of recognition and, it appears, respect: ‘A lesson of queer theory is that we should resist the tendency to trivialize, infantilize and subordinate relationships which are not clear parallels of the conventional, stable, long-term, cohabiting heterosexual couple.’[140] Ironically, the parliamentary debates underscore the extent to which Conservative opponents of the Civil Partnership Act — particularly in their claims that the Act is unfairly limited in its scope to same-sex couples — construct arguments that are remarkably similar to the queer critique.
To be clear, I am not suggesting that lesbian and gay people do not construct relationships of dependence. Some do, some don’t, and those that do, do so in an infinite variety of ways. However, it may well be that lesbians and gay men, because of the lack of traditional family structures which were historically open to them, have had a greater opportunity for experimentation with varieties of interdependence in different forms and guises.[141] However, there is no recognition of this rich diversity in either the legislation itself, nor in the surrounding material, nor within parliamentary discourse. Certainly, the privatisation orthodoxy remains unchallenged. A similar argument could be made with respect to the ability to gain parental responsibility for children. Judith Stacey and Elizabeth Davenport, referring to the work of Martha Fineman, have suggested the abolition of the category of ‘family’ in law because of the way in which it ‘renders women and children economically vulnerable to the vagaries of adult erotic and emotional attachments’.[142] The Civil Partnership Act aims to strengthen rather than to deprivilege that construct and does nothing about the dependence of children on the vagaries of emotional or sexual attachment within the family unit.
Focusing on the disciplinarity of the Civil Partnership Act can lead us, then, to ask about the possibilities that seem closed off under the guise of liberal social acceptance. What has been lost? The answer perhaps is to be found in the laboratories of social experimentation that have grown up through the exclusion from the legal and social family: that is, the variety of forms of relationship that demonstrate the limited imagination behind the Civil Partnership Act. A number of social commentators have argued that lesbian and gay lives can teach much about the variety of ways of living that, increasingly, we in the West can choose from as we construct our lives.[143] At the precise same moment, the Civil Partnership Act falls back on a traditional conception of relationships, dependence, and privatisation. In this sense, the Act is an act of legal violence that delegitimises and shames that which it does not recognise: ‘Crucially, cultural and legal recognition of same — sex couples would do nothing to enfranchise the relationships that have also been fundamental to queer life: friendships, cliques, tricks, sex buddies, ex-lovers, activist and support groups, and myriad others.’[144] As queers, we might advocate ‘that institutions including the state would cease to make a singular form of love and sex into the matrix for its allocation of resources. What if one could have each of the things that marriage combines with a different person or small group? What if I could live with my mother, but still give my best friend hospital visitation rights and extend my health insurance benefits to my ex-lover?’[145] As Sasha Roseneil explains, these social practices are important in that they ‘de-centre the primary significance that is commonly granted to sexual partnerships and the privileging of conjugal relationships, and suggests to us the importance of thinking beyond the conjugal imaginary’.[146]
Law seems unable, or perhaps just unwilling, to provide this kind of recognition — this thinking beyond — instead reducing the world to cohabiting partners with lives totally woven through with interdependence on the one hand, and ‘just friends’ on the other. But the complexity of queer life undermines that vision of privatised, familial domesticity, opening up new spaces for a post-familial world in which the provision of care is itself re-imagined beyond the partnership paradigm.