Marriage (Same Sex Couples) Bill (HC Bill 3)

Marriage (Same Sex Couples) BillPage 20

(2) Regulations under any of the shared building provisions may
provide for a registration application relating to a shared building to
be made otherwise than by the proprietor or trustee of the building
(whether or not the proprietor or trustee retains power to make such
5an application).

(3) Regulations under any of the shared building provisions may make
provision about any of these cases—

(a) the case where a building registered under section 43A
becomes a shared building;

(b) 10the case where a building registered under section 43A ceases
to be a shared building;

(c) the case where a building is registered under section 43A and
there is a change in the churches which are sharing churches;

and the provision that may be made about such a case includes
15provision for the modification, suspension or cancellation of the
registration under section 43A.

(4) Regulations under any of the shared building provisions may make
provision about the use of shared buildings for the solemnization
of—

(a) 20marriages of same sex couples according to the usages of the
Society of Friends (commonly called Quakers), and

(b) marriages of same sex couples professing the Jewish religion
according to the usages of the Jews.

(5) The provision that may be made about the use of shared buildings
25for the solemnization of such marriages includes—

(a) provision about the giving of consent by the relevant
governing authority for the purposes of a registration
application or cancellation application (including provision
for identifying the relevant governing authority);

(b) 30provision corresponding to, or applying, any provision of
section 43B (with or without modifications).

(6) Regulations under any of the shared buildings provisions may
amend any England and Wales legislation.

(7) Subsections (2) to (6) do not limit the power under any of the shared
35building provisions to make regulations.

(8) A statutory instrument containing regulations under any of the
shared building provisions may not be made unless a draft of the
instrument has been laid before, and approved by resolution of, each
House of Parliament..

Marriage (Same Sex Couples) BillPage 21

Section 10

SCHEDULE 2 Extra-territorial matters

Part 1 English & Welsh marriages of same sex couples: treatment in Scotland and
5Northern Ireland

Scotland

1 (1) The Secretary of State may, by order, provide that, under the law of
Scotland, a marriage of a same sex couple under the law of England and
Wales is to be treated as a civil partnership formed under the law of England
10and Wales (and that, accordingly, the spouses are to be treated as civil
partners).

(2) The Secretary of State may by order—

(a) provide for the treatment of a marriage as a civil partnership (by
virtue of an order under sub-paragraph (1)) to have effect subject to
15provision made by the order;

(b) specify cases in which a marriage is not to be treated as a civil
partnership by virtue of an order under sub-paragraph (1).

(3) The power conferred by sub-paragraph (1) may only be exercised if
marriage of same sex couples is not lawful under the law of Scotland.

(4) 20If marriage of same sex couples becomes lawful under the law of Scotland,
that does not—

(a) affect the validity of any order made under this paragraph; or

(b) prevent the revocation of any such order (with or without
transitional, transitory or saving provision being made) using the
25powers conferred by this paragraph.

(5) The Secretary of State must obtain the consent of the Scottish Ministers
before making any order under sub-paragraph (1).

Northern Ireland

2 (1) Under the law of Northern Ireland, a marriage of a same sex couple under
30the law of England and Wales is to be treated as a civil partnership formed
under the law of England and Wales (and accordingly, the spouses are to be
treated as civil partners).

(2) The Secretary of State may by order—

(a) provide for the treatment of a marriage as a civil partnership (by
35virtue of sub-paragraph (1)) to have effect subject to provision made
by the order;

(b) specify cases in which a marriage is not to be treated as a civil
partnership by virtue of sub-paragraph (1).

Contrary provision

3 (1) 40The treatment of a marriage as a civil partnership by virtue of an order under
paragraph 1(1), or by virtue of paragraph 2, is subject to—

(a) any order made under paragraph 1(2) or 2(2), and

Marriage (Same Sex Couples) BillPage 22

(b) any other contrary provision made by—

(i) the other provisions of this Act,

(ii) any other subordinate legislation made under this Act, and

(iii) any new UK legislation,

5including any such contrary provision contained in amendments of existing
UK legislation.

(2) In this paragraph—

  • “existing UK legislation” means—

    (a)

    in the case of UK legislation that is primary legislation,
    10legislation passed before the end of the Session in which this
    Act is passed (excluding this Act), or

    (b)

    in the case of UK legislation that is subordinate legislation,
    legislation made on or before the day on which this Act is
    passed (excluding legislation made under this Act);

  • 15“new UK legislation” means—

    (a)

    in the case of UK legislation that is primary legislation,
    legislation passed after the end of the Session in which this
    Act is passed, or

    (b)

    in the case of UK legislation that is subordinate legislation,
    20legislation made after the day on which this Act is passed.

Part 2 Marriage treated as civil partnership: dissolution, annulment or separation

Order made in relation to civil partnership: validity in relation to marriage

4 (1) This paragraph applies in a case where a marriage of a same sex couple
25under the law of England and Wales is—

(a) by virtue of an order under paragraph 1, treated under the law of
Scotland as a civil partnership, or

(b) by virtue of paragraph 2, treated under the law of Northern Ireland
as a civil partnership.

(2) 30If—

(a) a final order is made in relation to the deemed civil partnership, and

(b) the validity of that order is recognised throughout the United
Kingdom,

that order has, throughout the United Kingdom, the same effect in relation
35to the actual marriage that it has in relation to the deemed civil partnership.

(3) If—

(a) a separation order is made in relation to the relevant couple as
parties to the deemed civil partnership, and

(b) the validity of that order is recognised throughout the United
40Kingdom,

that order has, throughout the United Kingdom, the same effect in relation
to the couple as parties to the actual marriage that it has in relation to them
as parties to the deemed civil partnership (and has effect in relation to any
other persons accordingly).

(4) 45In this paragraph—

    Marriage (Same Sex Couples) BillPage 23

  • “actual marriage” means the marriage of the same sex couple under the
    law of England and Wales;

  • “deemed civil partnership” means the civil partnership which the
    actual marriage is treated as being;

  • 5“final order” means—

    (a)

    the dissolution or annulment of a civil partnership obtained
    from a court of civil jurisdiction in any part of the United
    Kingdom;

    (b)

    an overseas dissolution or annulment;

  • 10“relevant couple” means the same sex couple who are parties to the
    actual marriage;

  • “separation order” means—

    (a)

    a legal separation of the parties to a civil partnership obtained
    from a court of civil jurisdiction in any part of the United
    15Kingdom;

    (b)

    an overseas legal separation of the parties to a civil
    partnership.

Part 3 England and Wales: “overseas relationships” in Civil Partnership Act 2004

20Marriage not an “overseas relationship” in England and Wales

5 (1) The Civil Partnership Act 2004 is amended as follows.

(2) Section 213 (specified relationships): after subsection (1) insert—

(1A) But, for the purposes of the application of this Act to England and
Wales, marriage is not an overseas relationship..

Section 11

25SCHEDULE 3 Interpretation of legislation

Part 1 Existing England and Wales legislation

Interpretation of existing England and Wales legislation

1 (1) 30This paragraph applies to existing England and Wales legislation which has
effect as indicated in section 11(2).

(2) In the legislation—

(a) a reference to marriage is to be read as including a reference to
marriage of a same sex couple;

(b) 35a reference to a married couple is to be read as including a reference
to a married same sex couple; and

(c) a reference to a person who is married is to be read as including a
reference to a person who is married to a person of the same sex.

Marriage (Same Sex Couples) BillPage 24

(3) Where sub-paragraph (2) requires a reference to be read in a particular way,
any related reference (such as a reference to a marriage that has ended, or a
reference to a person whose marriage has ended) is to be read accordingly.

(4) For the purposes of sub-paragraphs (2) and (3) it does not matter how a
5reference is expressed.

Interpretation of legislation about couples living together as if married

2 (1) In existing England and Wales legislation which has effect as indicated in
section 11(2)

(a) a reference to persons who are not married but are living together as
10a married couple is to be read as including a reference to a same sex
couple who are not married but are living together as a married
couple;

(b) a reference to a person who is living with another person as if they
were married is to be read as including a reference to a person who
15is living with another person of the same sex as if they were married.

(2) Where sub-paragraph (1) requires a reference to be read in a particular way,
any related reference (such as a reference to persons formerly living together
as a married couple) is to be read accordingly.

(3) For the purposes of sub-paragraphs (1) and (2) it does not matter how a
20reference is expressed.

3 (1) This paragraph applies to existing England and Wales legislation which has
effect as indicated in section 11(2) and which deals differently with—

(a) a man and a woman living together as if married, and

(b) two men, or two women, living together as if civil partners.

(2) 25If two men, or two women, are living together as if married, that legislation
applies to them in the way that it would apply to them if they were living
together as civil partners.

General

4 Paragraphs 1 and 2 do not limit section 11(1) or (2).

30Part 2 New England and Wales legislation

5 (1) This paragraph applies to provision made by—

(a) this Act and any subordinate legislation made under it, or

(b) new England and Wales legislation,

35including any such provision which amends existing England and Wales
legislation.

(2) The following expressions have the meanings given—

(a) “husband” includes a man who is married to another man;

(b) “wife” includes a woman who is married to another woman;

(c) 40“widower” includes a man whose marriage to another man ended
with the other man’s death;

Marriage (Same Sex Couples) BillPage 25

(d) “widow” includes a woman whose marriage to another woman
ended with the other woman’s death;

and related expressions are to be construed accordingly.

(3) A reference to marriage of same sex couples is a reference to—

(a) 5marriage between two men, and

(b) marriage between two women.

(4)
A reference to a marriage of a same sex couple is a reference to—

(a) a marriage between two men, or

(b) a marriage between two women.

(5) 10A reference to a same sex couple who are not married but are living together
as a married couple is a reference to—

(a) two men who are not married but are living together as a married
couple, or

(b) two women who are not married but are living together as a married
15couple.

(6) This Part of this Schedule does not limit section 11(1) or (2).

Section 11

SCHEDULE 4 Effect of extension of marriage: further provision

Part 1 20Private legal instruments

Existing instruments

1 (1) Section 11 does not alter the effect of any private legal instrument made
before that section comes into force.

(2) In this paragraph “private legal instrument” includes—

(a) 25a will,

(b) an instrument (including a private Act) which settles property,

(c) an instrument (including a private Act) which provides for the use,
disposal or devolution of property, and

(d) an instrument (including a private Act) which—

(i) 30establishes a body, or

(ii) regulates the purposes and administration of a body,

(whether the body is incorporated or not and whether it is charitable
or not);

but (with the exception of the kinds of private Act mentioned above) it does
35not include England and Wales legislation.

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Part 2 Presumption on birth of child to married woman

Common law presumption

2 (1) Section 11 does not extend the common law presumption that a child born
5to a woman during her marriage is also the child of her husband.

(2) Accordingly, where a child is born to a woman during her marriage to
another woman, that presumption is of no relevance to the question of who
the child’s parents are.

Part 3 10Divorce and annulment of marriage

Divorce

3 (1) Section 1 of the Matrimonial Causes Act 1973 (divorce on breakdown of
marriage) is amended as follows.

(2) After subsection (5) insert—

(6) 15Only conduct between the respondent and a person of the opposite
sex may constitute adultery for the purposes of this section..

Annulment of marriage

4 (1) Section 12 of the Matrimonial Causes Act 1973 (grounds on which a
marriage is voidable) is amended as follows.

(2) 20The existing provision of section 12 becomes subsection (1) of that section.

(3) After that subsection (1) insert—

(2) Paragraphs (a) and (b) of subsection (1) do not apply to the marriage
of a same sex couple..

Part 4 25Matrimonial proceedings

Amendment of the Domicile and Matrimonial Proceedings Act 1973

5 The Domicile and Matrimonial Proceedings Act 1973 is amended as follows.

6 Section 5 (jurisdiction of High Court and county courts): after subsection
(6A) insert—

(6B) 30This section and Schedule 1 do not apply in relation to marriages of
same sex couples..

7 After section 5 insert—

5A Jurisdiction in relation to marriage of same sex couples

Schedule 1A (jurisdiction in relation to marriage of same sex couples)
35has effect..

Marriage (Same Sex Couples) BillPage 27

8 After Schedule 1 insert—

SCHEDULE 1A

Jurisdiction in relation to marriage of same sex couples

1 Introduction

(1) The court has jurisdiction over—

(a) divorce orders,

(b) 5judicial separation,

(c) nullity orders,

(d) presumption of death orders, and

(e) declarations of validity;

and that jurisdiction has effect in accordance with, and subject to,
10the other provisions of this Part of this Schedule.

(2) In this Schedule—

  • “declaration of validity” means—

    (a)

    a declaration as to the validity or existence of the
    marriage of a same sex couple, and

    (b)

    15a declaration as to the validity of a divorce,
    annulment or judicial separation obtained outside
    England and Wales in respect of a marriage of a same
    sex couple;

  • “divorce order” means an order ending the marriage of a
    20same sex couple on the ground that it has broken down
    irretrievably;

  • “judicial separation” means an order which provides for the
    separation of a married same sex couple;

  • “nullity order” means an order which annuls the marriage of
    25a same sex couple which is void or voidable;

  • “presumption of death order” means an order which ends the
    marriage of a same sex couple on the ground that one of
    the couple is presumed to be dead.

2 Divorce, judicial separation or annulment

(1) 30The court has jurisdiction to entertain proceedings for a divorce
order or judicial separation if (and only if)—

(a) the court has jurisdiction under regulations under
paragraph 5,

(b) no court has, or is recognised as having, jurisdiction under
35regulations under paragraph 5 and either of the married
same sex couple is domiciled in England and Wales on the
date when the proceedings are begun, or

(c) the following conditions are met—

(i) the two people concerned married each other
40under the law of England and Wales,

(ii) no court has, or is recognised as having,
jurisdiction under regulations under paragraph 5,
and

Marriage (Same Sex Couples) BillPage 28

(iii) it appears to the court to be in the interests of justice
to assume jurisdiction in the case.

(2) The court has jurisdiction to entertain proceedings for a nullity
order if (and only if)—

(a) 5the court has jurisdiction under regulations under
paragraph 5,

(b) no court has, or is recognised as having, jurisdiction under
regulations under paragraph 5 and either of the married
same sex couple—

(i) 10is domiciled in England and Wales on the date
when the proceedings are begun, or

(ii) died before that date and either was at death
domiciled in England and Wales or had been
habitually resident in England and Wales
15throughout the period of 1 year ending with the
date of death, or

(c) the following conditions are met—

(i) the two people concerned married each other
under the law of England and Wales,

(ii) 20no court has, or is recognised as having,
jurisdiction under regulations under paragraph 5,
and

(iii) it appears to the court to be in the interests of justice
to assume jurisdiction in the case.

(3) 25At any time when proceedings are pending in respect of which the
court has jurisdiction by virtue of sub-paragraph (1) or (2) (or this
sub-paragraph), the court also has jurisdiction to entertain other
proceedings, in respect of the same marriage, for a divorce,
judicial separation or nullity order, even though that jurisdiction
30would not be exercisable under subsection (1) or (2).

3 Presumption of death order

The court has jurisdiction to entertain proceedings for a
presumption of death order if (and only if)—

(a) the applicant is domiciled in England and Wales on the
35date when the proceedings are begun,

(b) the applicant was habitually resident in England and
Wales throughout the period of 1 year ending with that
date, or

(c) the two people concerned married each other under the
40law of England and Wales and it appears to the court to be
in the interests of justice to assume jurisdiction in the case.

4 Declaration of validity

The court has jurisdiction to entertain an application for a
declaration of validity if (and only if)—

(a) 45either of the parties to the marriage to which the
application relates—

(i) is domiciled in England and Wales on the date of
the application,

Marriage (Same Sex Couples) BillPage 29

(ii) has been habitually resident in England and Wales
throughout the period of 1 year ending with that
date, or

(iii) died before that date and either was at death
5domiciled in England and Wales or had been
habitually resident in England and Wales
throughout the period of 1 year ending with the
date of death, or

(b) the two people concerned married each other under the
10law of England and Wales and it appears to the court to be
in the interests of justice to assume jurisdiction in the case.

5 Power to make provision corresponding to EC Regulation 2201/2003

(1) The Lord Chancellor may by regulations make provision—

(a) as to the jurisdiction of courts in England and Wales in
15proceedings for the divorce of, or annulment of the
marriage of, a same sex couple or for judicial separation of
a married same sex couple where one of the couple—

(i) is or has been habitually resident in a member
State,

(ii) 20is a national of a member State, or

(iii) is domiciled in a part of the United Kingdom or the
Republic of Ireland, and

(b) as to the recognition in England and Wales of any
judgment of a court of another member State which orders
25the divorce of, or annulment of a marriage of, a same sex
couple or the judicial separation of a married same sex
couple.

(2) The regulations may in particular make provision corresponding
to that made by Council Regulation (EC) No 2201/2003 of 27th
30November 2003 in relation to jurisdiction and the recognition and
enforcement of judgments in matrimonial matters.

(3) The regulations may provide that for the purposes of the
regulations “member State” means—

(a) all member States with the exception of such member
35States as are specified in the regulations, or

(b) such member States as are specified in the regulations.

(4) The regulations may make provision under sub-paragraph (1)(b)
which applies even if the date of the divorce, annulment or judicial
separation is earlier than the date on which this paragraph comes
40into force.

(5) Regulations under this paragraph are to be made by statutory
instrument.

(6) A statutory instrument containing regulations under this
paragraph may not be made unless a draft of the statutory
45instrument containing the order or regulations has been laid
before, and approved by resolution of, each House of
Parliament..