However, this view has been contested by Wright who points out that the CPA fails to provide all the rights and obligations available to opposite-sex couples. For example, under the CPA, registration of a civil partnership occurs independently of ceremony S.2(1) , therefore unlike opposite-sex couples who choose to participate in a civil ceremony, same-sex couples cannot register their union and register on the same occasion. Even minute differences in provisions can create social notions that civil partnerships are not on equal footing as marriage thereby fosters discrimination.
Similarly, a minister told the House of Commons that the CPA would create a ‘parallel but different legal relationship that mirrors as fully as possible the rights and responsibilities enjoyed by those who can marry.’ By giving same-sex couples a marriage-like institution, the government and indeed the courts have managed to claim that there is no discrimination. A similar notion was established by the United States Supreme Court during the 1800s in Plessy V Ferguson. This disastrous decision regarding the equal treatment of African-Americans was overruled in Brown V Topeka Board of Education where it was held that separate but equal was inherently discriminatory and unconstitutional. Yet Plessy V Ferguson remains a shameful chapter in American legal history. Will the judgement in Wilkinson V Kitzinger ever be viewed in a similar light? Sir Mark Potter’s words ‘a parallel and equalising institution (civil partnership)’ seem too close to the wording in Plessy V Ferguson.
Although, English law believes civil partnerships are adequate as a substitute for marriage, other jurisdictions most certainly do not. In Halpern V Attorney General of Canada, the Ontario Court of Appeal drew on this distinction in rejecting the federal government’s argument that it no longer discriminated between heterosexual and homosexual couples even though homosexual couples were not allowed to marry, because the homosexual couples enjoyed virtually all of the federal benefits that flow from marriage. It was surmised that ‘the benefits of marriage cannot be viewed in purely economics terms. The societal significance surrounding the institution of marriage cannot be overemphasised.’ California Supreme Court took the view that registered partnerships did not remedy discrimination against same-sex partners; ‘the idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts...’ In line with these ratios, the current English approach to civil partnerships and marriages, by definition creates a sexual and social apartheid separating heterosexuals and homosexuals. By not allowing same-sex couples marry, the courts are sending a message that homosexual relationship is valued less highly than any heterosexual one and as articulated by the US Supreme Court, separate but equal provisions ‘generate a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely every to be undone’.
It was articulated by Sir Potter that the non-recognition of a foreign same-sex marriage did not infringe upon conventional rights.
The right to marry is enshrined in Art. 12 of the ECHR. It provides that ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ So far the European Court of Human Right has not ruled whether denying same-sex couples the right to ‘marry’ is contrary to the ECHR. It has only stated that homosexual conduct is an aspect of a person’s private life. However, some recent case law suggests that it might not be far away from doing so. The issue in Goodwin V UK was whether a transsexual should be prevented from marrying a person of her choice because of the government’s failure to provide legal recognition of her change of sex. The court found that her legal gender, fixed at birth no longer reflected her identity. Therefore denying her the option to marry a man was in fact an intrusion on Art 8. Given this ruling, it would be equally arguable that preventing a homosexual from marrying a person of the same-sex when that person is the only person he or she would ever contemplate marrying would be a violation of the Article 12 right. Perhaps a more imaginative interpretation of the ECHR was called for.
Furthermore, it was submitted in Wilkinson that the court should develop the common law of private international law to recognise her Canadian marriage but this was held to be contrary to public policy.
A public policy reason that is often cited is that the traditional institution of marriage should be protected because it is so fundamental to society. That age old definition given by Lord Penzance in Hyde V Hyde; 'Marriage is a voluntary union of one man and one woman.'
This definition has persisted for over a century and was implicitly incorporated into the Matrimonial Causes Act 1973. Wardle similarly argues that, in times where heterosexual marriage is declining, there is all the more reason to protect it and recognise its true worth; by not opening up to same-sex couples
In response to the argument that same-sex marriage challenges traditional notions of marriage, Martha Bailey has pointed out ‘it is no longer satisfactory simply to say that same-sex marriage does not meet the traditional definition of marriage when the traditional definition is under challenge.’
In addition, arguments that emphasise the profound importance of marriage in society only leads to the question; if marriage is so valuable and important in society, why can’t same-sex couples have the right to marry? Couples such as Celia Kitzinger and Sue Wilkinson obviously made a conscious decision to marry abroad instead of becoming civil partners in the UK because they place greater value and importance on the institution of marriage. Surely sentiments like these do not threaten the validity or the worth of marriage. In fact, it promotes marriage as a goal that symbolises true commitment and stability at a time when divorce rates are rocketing and rate of marriage at a low-point.
Moreover, perhaps someone needs to remind the judiciary and the legislators that civil partnership is already generally perceived in society as gay marriage. Probert claims that ‘the plethora of references to same-sex marriages [during the inception of the CPA]…suggests that there is an emerging public perception to this effect.’
Another public policy argument for leaving marriage as a solely heterosexual union is related to the fact that homosexual relationships does not allow for procreation. For example, Sommerville argues that marriage establishes ‘a cultural meaning and moral values around the inherently procreative relationships between a man and a woman’. Similarly, Baroness Scotland of Asthal, commented that ‘marriage is the surest foundation for opposite-sex couples raising children’.
However, in any event, as Compton contends, modern marriage is not simply about procreation. Indeed, heterosexual couples who marry are under no obligation to have any children or even the intention to do so. Furthermore, this argument will become even less relevant as it gets easier for same-sex couples to have children. The CPA gives same-sex couples the same rights to adopt children as with heterosexual couples. It has been suggested that if distinctions are to be made in the way that relationships should be treated, a realistic distinction should be made between those with children and those without. This notion has been rejected by the ECtHR in Goodwin V United Kingdom where it was held that marriage no longer implies a procreative purpose.
The future for the recognition of same-sex marriage celebrated abroad
In light of the arguments presented above, it seems that the English approach to same-sex marriage celebrated abroad is as flawed as it is narrow-minded. So how should the law be developed to remedy the situation?
In his 2001 article, Hans Yettersburg remarked that private international law may well be the 'trojan horse' for having same-sex marriages recognised around the world. This would have been an effective way to have Wilkinson's marriage recognised. In an ideal world, the courts would modify the general principles of private international law governing marriage and recognise same-sex marriages abroad after considering a broader interpretation of relevant articles in the ECHR relating to discrimination as well as implications of Goodwin. It is worth remembering that the recognition of same-sex marriage in Canada was not driven by the executive or the legislative branch of government but by the judiciary interpreting the Canadian Charter of Fundamental Rights.
Once this is achieved and same-sex couples who marry abroad have their marriage recognised, there will be an outcry for the general allowance of same sex marriage in Britain. Couples may travel to marry abroad and this may be held unfair for those couples without the financial ability to do so. Eventually, the legislative changes should be made to meet the demand for same-sex marriage.
A close examination of the CPA reveals that it would be a great deal simpler and more straightforward to extend marriage to same-sex couples. As Cretney helpfully points out, the ‘Civil Partnership Act has no less than 26 sections and 30 schedules occupying in all 429 pages of the statute book’. For example in the Netherlands, the legislators simply state ‘a marriage may be entered into by two persons of different sex or of the same sex’. Similarly their Canadian counterparts redefined marriage as ‘the lawful union of two persons to the exclusion of all others’. Would it not be wise to follow in the footsteps of the Netherlands and Canada to lobby for legislative change? This will be the simplest and most practical way of solving the problem.
As Compton suggests, currently the legislation in this country that governs adult relationships mean that there is a three-tiered system; (1) marriage (2) Civil Partnership (3) Cohabitation. Instead of this system that is discriminatory to same-sex couples, she proposed that the system should consist of (1) marriage for heterosexual and homosexual couples (2) Registered cohabitants and (3) unregistered cohabitants.
If there is no sign of the courts or the legislators willing to change the current approach to same-sex marriages celebrated abroad, another option is for pressure groups financially support cases similar to Wilkinson V Kitzinger to advance up to the appeals process and take the case to the ECtHR. Given their reasoning in Goodwin, which has been discussed earlier, according to Lowe and Douglas, it may well prove to be successful.
Conclusion
The recognition of the right to marry for same-sex couples has been achieved in a number of jurisdictions. The approach in English law towards same-sex marriage celebrated overseas is that it will only be recognised as a civil partnership. This is clearly unsatisfactory because we are dealing with same-sex couples who have made a conscious legal choice not to enter a civil partnership because of the inequality it represents and chosen a superior alternative of marriage.
However, amongst all the uncertainty on how the law will actually develop in this area, I believe that the current English approach on same-sex marriages, celebrated abroad or in general cannot stand the test of time. This is only the beginning. As Lord Ward wrote in 1997, ‘the tide in favour of equality (for gays and lesbians) rolls relentlessly forward and shows no signs of ebbing’.
Bibliography
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Cretney, S., Family Law: Essays for the New Millennium
Bristol: Jordan Publishing Ltd 2000
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M. Bailey, How will Canada respond to same sex marriages 1998 32 Creighton LR 105
N. Bamforth 'The Role of Philosophical and Constitutional Arguments in the Same-Sex Marriage: A Response to John Murphy' (2005) 17 2 Child and Family Law Quarterly 165
E. Huckle 'Civil Partnership Update' (2006) 156 New Law Journal 1912
H.H. Kay ' Same-Sex Divorce in the Conflict of Laws' (2004) 15 King's College Law Journal 63
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J Murphy 'Same-Sex Marriage in England: A Role for Human Rights?' (2004) 16 3 Child and Family Law Quarterly 245
W.K. Wright 'The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales' (2006) 20 International of Law, Policy and the Family 249
G. Wilson 'Financial Provision in Civil Partnerships' (2007) 37 Family Law 31
Miscellaneous
M. Somerville, The Case Against Same-Sex Marriage, A Brief submitted to the Standing Committee on Justice and Human Rights April 29 2003
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[2006] EWHC 2022 (Fam), [2006] All ER (D) 479 Jul
(Lord Chancellor Intervening) [2003] UKHL 21, [2003] 2 All ER 593 per Lord Nicholls
Hale, Unmarried Couples in Family Law (2004) Family Law 419
W.K. Wright 'The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales' (2006) 20 International of Law, Policy and the Family 249
Mrs Jaqui Smith, Official Report (HC) 12 October 2004, vol425, col 174
; 16 S. Ct. 1138; 41 L. Ed. 256; 1896 U.S. LEXIS 3390
; 74 S. Ct. 686; 98 L. Ed. 873; 1954 U.S. LEXIS 2094; 53 Ohio Op. 326; 38 A.L.R.2d 1180
Halpern V AG[2003] 65 OR 3d 161
Coordiantion Proceeding: Marriage Cases 2005 p9
[1866] LR 1 P. & D. 130 at p133
M. Bailey, How will Canada respond to same sex marriages 1998 32 Creighton LR 105
Probert, R. Cretney's Family Law 6th Edition London: Sweet and Maxwell 2006. p 3
M. Somerville, The Case Against Same-Sex Marriage, A Brief submitted to the Standing Committee on Justice and Human Rights April 29 2003
L. Compton, Civil Partnership Bill 2004: The Illusion of Equality (2004) 34 Family Law Journal 888 at p890
Wintemute, R., Andenaes, M., Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law Oxford: Hart Publishing 2001. p431
Wright, op. cit. note 4 p249
Cretney, S. Same Sex Relationships: From 'Odious Crime' to 'Gay Marriage' Oxford: Oxford University Press 2006 p19
Article 30 Netherlands Civil Code
In the Matter of Section 53 of the Supreme Court Act [2004] 3 SCR 698
Compton op. cit. note 17, p891
Douglad, G., Lowe, N., Bromley’s Family Law 10th Edition, Oxford: Oxford University Press 2006 p 39
Fitzatrick V Sterling Housing Association Ltd. [1998] 4 All ER 991 (CA) per Lord Ward