Treatment of same-sex marriages in the UK

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“The denial of equal dignity and worth all too quickly and insidiously degenerates into a denial of humanity and leads to inhuman treatment by the rest of society in many other ways.”

Justice Ackerman National Coalition for Gay and Lesbian Equality V Minister of

Justice 1999 (1) South Africa (Constitutional Court) at 28 (para.42)


 

Same-sex marriage, historically a controversial and uniformly prohibited status is now a legally available option in several countries. Even though the United Kingdom is not a jurisdiction where marriage is available for same-sex couples, the recognition of same sex marriage is a highly relevant topic because we live in an increasingly mobile and globalising world where couples are presented with opportunities and reasons to relocate. Therefore, a discussion on the current state of law regarding the recognition of same-sex marriages celebrated abroad, with special attention on the recent case of Wilkinson V Kitzinger & Ors and relevant provisions in the Matrimonial Causes Act 1973, Civil Partnership Act 2004, and whether this approach is satisfactory and how it could be developed to meet the needs modern society.

The current approach regards to same-sex marriage celebrated abroad

The question of recognition for foreign same-sex marriage has been recently addressed in the case of Wilkinson V Kitzinger &Ors . The petitioner and the first respondent had gone through a form of marriage lawful and valid by the law of British Columbia, Canada. Upon their return to the UK, the parties applied to the court for it to give effect to the MCA 1973 s 11(c) and S 1(b) of the CPA 2004; to recognise same-sex marriages lawfully effected in other jurisdictions as valid in English law. They were essentially asking the court to ignore the general principles of English private international law governing marriages which require that the parties conform to the formalities of marriage as provided by the country where the marriage took place and that the couple has legal capacity to marry in their country of domicile.

Alternatively the parties sought a declaration under the HRA 1998 s 4(2) that the relevant statutory provisions of the 1973 and 2004 Acts were incompatible with the rights guaranteed by the ECHR, specifically Articles 8, 12 and 14.

However, the case was unsuccessful. Sir Mark Potter, President of the Family law Division pronounced that Wilkinson’s marriage under Canadian law was an overseas relationship which by virtue of the above provisions, was treated as a civil partnership. He confirmed that by Section 14 of the MCA 1973, in respect to foreign marriages, the rules of English private international law apply. In delivering his judgment, he referred to Bellinger V Bellinger, quoting Lord Nicholls;

‘Marriage is deeply embedded as a relationship between two persons of the same-sex’.

In addition, Sir Potter did not consider the failure to recognise their marriage under English law an intrusion on their right to private life. He also added that neither Wilkinson’s nor Kintzinger’s autonomy, sexual or personal, had been threatened.

To the extent that by reason of that distinction it discriminated against same-sex partners, such discrimination had a legitimate aim and was reasonable and proportionate, and fell within the margin of appreciation accorded to Convention states. He also added that recognising same-sex marriage contrary to the principles of private international law would be against public policy.

In this way, the court explicitly rejected the possibility of a same-sex marriage celebrated abroad being given the same recognition as a marriage in English Law and confirmed that that had not been the purpose or intention behind the enactment of the CPA 2004.

Is the approach in Wilkinson V Kitzinger &Ors satisfactory?

In his judgement, Sir Potter commented that not recognising same-sex marriage did not constitute violations of Convention rights because a civil partnership was a sufficient alternative to marriage for same-sex couples. He emphasised that through the CPA 2004, same-sex partners effectively held all material rights and responsibilities attached to civil marriages. According to parliament, this has removed the legal, social and economic disadvantages suffered by homosexuals in stable long-term relations. Indeed, much of the academic commentaries surrounding the CPA assume that it will provide equality for same sex couples. Hale LJ wrote ‘the legal consequences both during and at the end of the relationship [civil partnership] will be virtually identical to those of marriage’. 

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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 ...

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