'Marriage Penalties' for the Disabled: the Forgotten Marriage Inequality

While marriage equality has come a long way in the past few decades, with same-sex marriage being legalised in 2014, for disabled people the fight is far from over. [1] While the law does not explicitly prevent disabled people from getting married, the mechanisms of the benefit system, which they often must rely upon, essentially prevent them from getting married while still retaining a decent quality of life in the same way as abled people can.

Under the Welfare Reform Act 2012, the couple would need to apply jointly for the disabled person to receive their benefits. [2] Their joint finances would be assessed, with the financial conditions being different than for a ‘single person’. [3] For the purposes of the legislation, a single person is anyone who is not married to or living with a partner. [4] This means that somebody who is in a relationship in which they share their income could still get their benefits as a ‘single person’. But, as soon as they decide to take the next step in their relationship, their benefits could be reduced or even lost if their partner’s income puts them closer to or above the limit of the financial conditions. This is illogical as unmarried couples may share their income but be assessed as single people, however somebody who is married but has no access at all to their partner’s income is assessed as part of a couple with both their incomes being considered.

While this in itself may not seem to be an equality issue as it does not directly prevent disabled people from getting married, the World Institute on Disability asserts that the institutionalised ableism within this system actively prevents disabled people from accessing the same quality of life and happiness as abled people. [5] While many may claim that this is not true and that it is simply how the benefit system works for everybody and thus it is not an issue in terms of disability equality, the reality is that disabled people are disproportionately affected. With disabled people on average facing extra costs of £583 a month, the so-called ‘marriage penalty’ arguably hits them the hardest and therefore impacts them on a much larger scale. [6] The system makes the assumption that their partner will take care of them financially and pool their income after marriage, whereas this is often not the case. This creates a massive dependency on their partner for everything, leading to a situation where they have to rely on their partner for financial support.

This alone is enough to put a huge barrier between disabled people and their reasonable ability to marry while maintaining an acceptable quality of life. Further examination of the issue reveals that the system is being used against some disabled people by their partners in order to abuse them. With no personal income to protect them, it becomes much harder to escape the abuse, with the disabled person often essentially being trapped in the abusive relationship due to fear of being unable to support themselves otherwise now that their benefits have been cut, with it taking several weeks to be reassessed. [7]

With disabled people suffering abuse for an average of 3.3 years before seeking help in comparison to 2.3 years for able-bodied abuse victim, it is clear that abusers will use the vulnerability of the situation to their advantage. [8] This not only means that it is an incredibly difficult choice to get married if you are disabled – some many barely call it a choice at all – but any marriage that you do enter into could be incredibly dangerous. Arguably the ‘right to marriage’ afforded here cannot be classed as a true right when in order to attain said right the disabled person would have to forgo other liberties and be subjected to a loss of autonomy and even abuse, and may be unable to survive at all.

The UK has a duty under both international and domestic law to ensure marriage equality and whether this duty is being upheld is questionable at best. Article 12 of the European Convention on Human Rights, which has been implemented directly into UK law [9], confers a general right to marry. [9] While it may be said that disabled people are technically able to marry as they please, and thus there is no direct breach of this right, it is difficult to say that the right is truly available to somebody when their utilisation of that right could lead to a drastically lower quality of life and in some cases an inability to escape an abusive relationship.

The UN Office of the High Commissioner for Human Rights expands on this and goes as far as to say that member states of the European Union should ‘eliminate discrimination against persons with disabilities in all matters relating to marriage … on an equal basis with others.’ [10] With disabled people’s ability to marry being so affected by the ‘marriage penalty’ to the point that many are holding out on marriage or even getting divorced in order to get the benefits they need to survive, it is clearly not the case that steps have been taken to eliminate this discrimination and the UK needs to do more to ensure that disabled people are actually able to marry. [11]

The right to marry that is offered to disabled people is not the equal right that it should be. A right being given conditionally, where the person must suffer this greatly, cannot truly be classed as a right at all and goes against the central purpose of human rights protection. In this way, the promise of marriage equality given by legislation is clearly, for the disabled, hollow indeed.

[1] Marriage (Same Sex Couples) Act 2013.

[2] Welfare Reform Act 2012, s 2.

[3] ibid s 5.

[4] ibid s 39.

[5] Sarah Kim, 'Marriage Penalty Prevents Marriage Equity for People with Disabilities' (World Institute on Disability, 22 September 2021) <https://wid.org/2021/09/22/marriage-penalty-prevents-marriage-equity-for-people-with-disabilities/> accessed 25 January 2022.

[6] Anel Touchet and Dr Marcello Morciano, ‘The Disability Price Tag 2019: Technical Report’ (February 2019) <https://www.scope.org.uk/scope/media/files/campaigns/disability-price-tag-technical-report-2019.pdf> accessed 21 January 2022.

[7] BBC News, 'Benefits and disability: 'I'll never cohabit again, to protect myself'' (5 July 2021) <https://www.bbc.co.uk/news/disability-57482418> accessed 20 January 2022.

[8] Safelives, ‘Disabled Survivors Too: Disabled people and domestic abuse’ (March 2017) <https://safelives.org.uk/sites/default/files/resources/Disabled%20Survivors%20Too%20CORRECTED.pdf> accessed 21 January 2022.

[9] Human Rights Act 1998, sch 1, art 12; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 12.

[10] Convention on the Rights of Persons with Disabilities (entered into force 3 May 2008) 2515 UNTS 3 (CRPD) art 23.

[11] Rabia Belt, ‘Disability: The Last Marriage Equality Frontier’ (2015) Stanford Public Law Working Paper No. 2653117 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2653117#> accessed 18 January 2022.