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Marriage (Same Sex Couples) Bill (HL Bill 29)

Marriage (Same Sex Couples) BillPage 20

application under section 43C in the circumstances to which this
section applies.

(6) In a case where the cancellation application is made by a relevant
governing authority in accordance with subsection (4)(b)—

(a) 5the application must be accompanied by a certificate, given
by persons making the application, that they are the relevant
governing authority of one of the sharing churches; and

(b) the superintendent registrar must (in addition to forwarding
the application in accordance with section 43C(3)) send a
10copy of that certificate to the Registrar General.

(7) The Secretary of State may by statutory instrument make regulations
containing such provision supplementing this section as the
Secretary of State thinks appropriate.

44C Other shared buildings: registration and cancellation

(1) 15The Secretary of State may by statutory instrument make regulations
about the use, for the solemnization of marriages of same sex couples
under section 26A, of buildings that are shared but neither—

(a) subject to a sharing agreement, nor

(b) used as mentioned in section 6(4) of the 1969 Act.

(2) 20Regulations under this section may, in particular, make provision
about—

(a) registration applications, and

(b) cancellation applications,

relating to such buildings.

44D 25Sections 44A to 44C: supplementary provision

(1) In sections 44A to 44C (and this section)—

  • “1969 Act” means the Sharing of Church Buildings Act 1969;

  • “cancellation application” means an application under section
    43C for the cancellation of the registration of a building;

  • 30“registration application” means an application under section
    43A for the registration of a building;

  • “sharing agreement” has the meaning given in section 1 of the
    1969 Act;

  • “shared building” means a building that is—

    (a)

    35subject to a sharing agreement,

    (b)

    used as mentioned in section 6(4) of the 1969 Act, or

    (c)

    otherwise shared;

  • “shared building provisions” means sections 44A to 44C;

  • “sharing churches” means—

    (a)

    40in the case of a building subject to a sharing
    agreement, the churches that have made the
    agreement;

    (b)

    in the case of a building used as mentioned in section
    6(4) of the 1969 Act, the churches who so use it;

    (c)

    45in the case of any other shared building, the religious
    organisations (whether Christian or of another faith)
    which share it.

Marriage (Same Sex Couples) BillPage 21

(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..

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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.

Northern Ireland

2 (1) Under the law of Northern Ireland, 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 and Wales (and accordingly, the spouses are to be
30treated 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 sub-paragraph (1)) to have effect subject to provision made
by the order;

(b) 35specify cases in which a marriage is not to be treated as a civil
partnership by virtue of sub-paragraph (1).

Contrary provision

3 (1) The 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) 40any order made under paragraph 1(2) or 2(2), and

(b) any other contrary provision made by—

(i) the other provisions of this Act,

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

(iii) any new UK legislation,

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

(2) 5In this paragraph—

  • “existing UK legislation” means—

    (a)

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

    (b)

    10in 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);

  • “new UK legislation” means—

    (a)

    in the case of UK legislation that is primary legislation,
    15legislation 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,
    legislation made after the day on which this Act is passed.

Part 2 20Marriage 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
under the law of England and Wales is—

(a) by virtue of an order under paragraph 1, treated under the law of
25Scotland as a civil partnership, or

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

(2) If—

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

(b) 30the validity of that order is recognised throughout the United
Kingdom,

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

(3) If—

(a) 35a 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
Kingdom,

that order has, throughout the United Kingdom, the same effect in relation
40to 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) In this paragraph—

  • “actual marriage” means the marriage of the same sex couple under the
    45law of England and Wales;

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

  • “final order” means—

    (a)

    the dissolution or annulment of a civil partnership obtained
    5from a court of civil jurisdiction in any part of the United
    Kingdom;

    (b)

    an overseas dissolution or annulment;

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

  • 10“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
    Kingdom;

    (b)

    an overseas legal separation of the parties to a civil
    15partnership.

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

Marriage not an “overseas relationship” in England and Wales

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

(2) 20Section 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

SCHEDULE 3 Interpretation of legislation

25Part 1 Existing England and Wales legislation

Interpretation of existing England and Wales legislation

1 (1) In existing England and Wales legislation—

(a) a reference to marriage is to be read as including a reference to
30marriage of a same sex couple;

(b) a 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.

(2) 35Where sub-paragraph (1) 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.

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

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Interpretation of legislation about couples living together as if married

2 (1) In existing England and Wales legislation—

(a) a reference to persons who are not married but are living together as
a married couple is to be read as including a reference to a same sex
5couple 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
is living with another person of the same sex as if they were married.

(2) 10Where 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
reference is expressed.

3 (1) 15This paragraph applies to existing England and Wales legislation 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) If two men, or two women, are living together as if married, that legislation
20applies 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).

Part 2 25New 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,

including any such provision which amends existing England and Wales
30legislation.

(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) “widower” includes a man whose marriage to another man ended
35with the other man’s death;

(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) 40marriage between two men, and

(b) marriage between two women.

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

Marriage (Same Sex Couples) BillPage 26

(a) a marriage between two men, or

(b) a marriage between two women.

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

(a) 5two 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
couple.

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

Section 11

10SCHEDULE 4 Effect of extension of marriage: further provision

Part 1 Private legal instruments

Existing instruments

1 (1) 15Section 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) a will,

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

(c) 20an 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) establishes a body, or

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

25(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
not include England and Wales legislation.

Part 2 30Presumption 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
to 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
35another woman, that presumption is of no relevance to the question of who
the child’s parents are.

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Part 3 Divorce and annulment of marriage

Divorce

3 (1) Section 1 of the Matrimonial Causes Act 1973 (divorce on breakdown of
5marriage) is amended as follows.

(2) After subsection (5) insert—

(6) Only 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) 10Section 12 of the Matrimonial Causes Act 1973 (grounds on which a
marriage is voidable) is amended as follows.

(2) The 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
15of a same sex couple..

Part 4 Matrimonial proceedings

Amendment of the Domicile and Matrimonial Proceedings Act 1973

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

6 (1) 20Section 5 (jurisdiction of High Court and county courts) is amended in
accordance with this paragraph.

(2) Subsection (1): after “entertain” insert “any of the following proceedings in
relation to a marriage of a man and a woman”.

(3) After subsection (5) insert—

(5A) 25Schedule A1 (jurisdiction in relation to marriage of same sex couples)
has effect..

(4) Subsection (6): after “Wales” insert “(whether the proceedings are in respect
of the marriage of a man and a woman or the marriage of a same sex
couple)”.

7 30Section 6 (miscellaneous amendments, transitional provision and savings),
subsection (3): after “Act” (in the first place) insert “, or by virtue of Schedule
A1 to this Act,”.

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8 Before Schedule 1 insert—

SCHEDULE A1

Jurisdiction in relation to marriage of same sex couples

1 Introduction

This Schedule shall have effect, subject to section 6(3) and (4), with
respect to the jurisdiction of the court to entertain any of the
5following proceedings in relation to a marriage of a same sex
couple—

(a) proceedings for divorce, judicial separation or nullity of
marriage;

(b) proceedings for an order which ends a marriage on the
10ground that one of the couple is dead; and

(c) proceedings for a declaration as to the validity of a
marriage.

2 Divorce, judicial separation or annulment

(1) The court has jurisdiction to entertain proceedings for divorce or
15judicial 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
regulations under paragraph 5 and either of the married
20same 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
under the law of England and Wales,

(ii) 25no 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.

(2) 30The court has jurisdiction to entertain proceedings for nullity of
marriage 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—

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

(ii) died before that date and either was at death
40domiciled 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

(c) the following conditions are met—

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

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

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

(3) At any time when proceedings are pending in respect of which the
court has jurisdiction by virtue of sub-paragraph (1) or (2) (or this
10sub-paragraph), the court also has jurisdiction to entertain other
proceedings, in respect of the same marriage, for divorce, judicial
separation or nullity of marriage, even though that jurisdiction
would not be exercisable under subsection (1) or (2).

3 Presumption of death order

15The court has jurisdiction to entertain proceedings for an order
which ends a marriage on the ground that one of the couple is
dead on an application made by the other of the couple (“the
applicant”) if (and only if)—

(a) at the time the application is made, the High Court does
20not have jurisdiction to entertain an application by the
applicant under section 1 of the Presumption of Death Act
2013 for a declaration that the applicant’s spouse is
presumed to be dead, and

(b) the two people concerned married each other under the
25law 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 as to the validity of a marriage if (and only if)—

(a) 30either of the parties to the marriage to which the
application relates—

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

(ii) has been habitually resident in England and Wales
35throughout the period of 1 year ending with that
date, or

(iii) died before that date and either was at death
domiciled in England and Wales or had been
habitually resident in England and Wales
40throughout the period of 1 year ending with the
date of death, or

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

5 45Power to make provision corresponding to EC Regulation 2201/2003

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