Marriage (Same Sex Couples) Bill (HL Bill 39)

A

BILL

[AS AMENDED ON REPORT]

TO

Make provision for the marriage of same sex couples in England and Wales,
about gender change by married persons and civil partners, about consular
functions in relation to marriage, for the marriage of armed forces personnel
overseas, for permitting marriages according to the usages of belief
organisations to be solemnized on the authority of certificates of a
superintendent registrar, for the review of civil partnership, and for connected
purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 Marriage of same sex couples in England and Wales

Extension of marriage

1 Extension of marriage to same sex couples

(1) 5Marriage of same sex couples is lawful.

(2) The marriage of a same sex couple may only be solemnized in accordance
with—

(a) Part 3 of the Marriage Act 1949,

(b) Part 5 of the Marriage Act 1949,

(c) 10the Marriage (Registrar General’s Licence) Act 1970, or

(d) an Order in Council made under Part 1 or 3 of Schedule 6.

(3) No Canon of the Church of England is contrary to section 3 of the Submission
of the Clergy Act 1533 (which provides that no Canons shall be contrary to the
Royal Prerogative or the customs, laws or statutes of this realm) by virtue of its

Marriage (Same Sex Couples) BillPage 2

making provision about marriage being the union of one man with one
woman.

(4) Any duty of a member of the clergy to solemnize marriages (and any
corresponding right of persons to have their marriages solemnized by
5members of the clergy) is not extended by this Act to marriages of same sex
couples.

(5) A “member of the clergy” is—

(a) a clerk in Holy Orders of the Church of England, or

(b) a clerk in Holy Orders of the Church in Wales.

10Religious protection

2 Marriage according to religious rites: no compulsion to solemnize etc

(1) A person may not be compelled by any means (including by the enforcement
of a contract or a statutory or other legal requirement) to—

(a) undertake an opt-in activity, or

(b) 15refrain from undertaking an opt-out activity.

(2) A person may not be compelled by any means (including by the enforcement
of a contract or a statutory or other legal requirement)—

(a) to conduct a relevant marriage,

(b) to be present at, carry out, or otherwise participate in, a relevant
20marriage, or

(c) to consent to a relevant marriage being conducted,

where the reason for the person not doing that thing is that the relevant
marriage concerns a same sex couple.

(3) In this section—

  • 25 “opt-in activity” means an activity of the kind specified in an entry in the
    first column of the following table which falls to be undertaken for the
    purposes of any enactment specified in the corresponding entry in the
    second column;

  • “opt-out activity” means an activity which reverses, or otherwise
    30modifies, the effect of an opt-in activity.

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Activity Enactment
Giving consent —Any of these provisions of the 1949 Act:
(a)

section 26A(3);

(b)

section 26B(2), (4) or (6);

(c)

section 44A(6);

(d)

5section 46(1C)

—Regulations under section 70A(5) of the
1949 Act (as mentioned in section
70A(6)(c) of that Act) relating to an
application for registration
—Section 1(3) of the Marriage (Registrar
10General’s Licence) Act 1970
—An armed forces overseas marriage
Order in its application to marriages of
same sex couples (as mentioned in
paragraph 9(5) of Schedule 6)
Applying for the registration of a
building
15Section 43A of the 1949 Act
Authorising a person to be present
at the solemnization of marriages of
same sex couples in a building
registered under section 43A of the
1949 Act
Section 43B of the 1949 Act


20
Being authorised to be present at the
solemnization of marriages of same
sex couples in a building registered
under section 43A of the 1949 Act
Section 43B of the 1949 Act


25
Giving a certificate, giving a copy of
a consent, or certifying any matter

Any of these provisions of the 1949 Act:

(a)

section 43A(3);

(b)

section 43B(2);

(c)

30section 44A(7)



(4) In this section—

  • “1949 Act” means the Marriage Act 1949;

  • 35“armed forces overseas marriage Order” means an Order in Council
    under Part 3 of Schedule 6;

  • “person”—

    (a)

    includes a religious organisation;

    (b)

    does not include a registrar, a superintendent registrar or the
    40Registrar General;

  • “relevant marriage” means—

    (a)

    a marriage of a same sex couple solemnized in accordance
    with—

    (i)

    section 26A or 26B of the 1949 Act (marriage in a place of
    45worship or in another place according to religious rites
    or usages),

    Marriage (Same Sex Couples) BillPage 4

    (ii)

    Part 5 of the 1949 Act (marriage in a naval, military or air
    force chapel),

    (iii)

    section 1 of the Marriage (Registrar General’s Licence)
    Act 1970 (deathbed marriage), where the marriage is
    5according to religious rites or usages, or

    (iv)

    an armed forces overseas marriage Order, where the
    marriage is according to religious rites or usages,

    including any ceremony forming part of, or connected with, the
    solemnization of such a marriage; and

    (b)

    10a marriage ceremony read or celebrated in accordance with
    section 46 of the 1949 Act in respect of a same sex couple
    (religious ceremony after registrar’s marriage of same sex
    couple);

    and a reference to conducting a relevant marriage is to be read
    15accordingly.

(5) In section 110 of the Equality Act 2010 (liability of employees and agents), after
subsection (5) insert—

(5A) A does not contravene this section if A—

(a) does not conduct a relevant marriage,

(b) 20is not present at, does not carry out, or does not otherwise
participate in, a relevant marriage, or

(c) does not consent to a relevant marriage being conducted,

for the reason that the marriage is the marriage of a same sex couple.

(5B) Subsection (5A) applies to A only if A is within the meaning of “person”
25for the purposes of section 2 of the Marriage (Same Sex Couples) Act
2013; and other expressions used in subsection (5A) and section 2 of
that Act have the same meanings in that subsection as in that section..

(6) In Schedule 3 to the Equality Act 2010 (services and public functions:
exceptions), after Part 6 insert—

30 Part 6A Marriage of same sex couples in England and Wales
25A Marriage according to religious rites: no compulsion to solemnize etc

(1) A person does not contravene section 29 only because the person—

(a) does not conduct a relevant marriage,

(b) 35is not present at, does not carry out, or does not otherwise
participate in, a relevant marriage, or

(c) does not consent to a relevant marriage being conducted,

for the reason that the marriage is the marriage of a same sex couple.

(2) Expressions used in this paragraph and in section 2 of the Marriage
40(Same Sex Couples) Act 2013 have the same meanings in this
paragraph as in that section..

Marriage (Same Sex Couples) BillPage 5

Part 3 of the Marriage Act 1949

3 Marriage for which no opt-in necessary

In Part 3 of the Marriage Act 1949, for section 26 substitute—

26 Marriage of a man and a woman; marriage of same sex couples for
5which no opt-in necessary

(1) The following marriages may be solemnized on the authority of two
certificates of a superintendent registrar—

(a) a marriage of a man and a woman, in a building registered
under section 41, according to such form and ceremony as the
10persons to be married see fit to adopt;

(b) a marriage of any couple in the office of a superintendent
registrar;

(bb) a marriage of any couple on approved premises;

(c) a marriage of a man and a woman according to the usages of the
15Society of Friends (commonly called Quakers);

(d) a marriage between a man and a woman professing the Jewish
religion according to the usages of the Jews;

(dd) a qualifying residential marriage;

(e) a marriage of a man and a woman according to the rites of the
20Church of England in any church or chapel in which banns of
matrimony may be published.

(2) In this section “qualifying residential marriage” means—

(a) the marriage of a man and a woman (other than a marriage in
pursuance of subsection (1)(c) or (d) above), one or each of
25whom is house-bound or a detained person, at the usual place
of residence of the house-bound or detained person or persons,
or

(b) the marriage of a same sex couple (other than a marriage
according to the rites of the Church of England or other
30religious rites or usages), one or each of whom is house-bound
or a detained person, at the usual place of residence of the
house-bound or detained person or persons..

4 Opt-in: marriage in places of worship

(1) After section 26 of the Marriage Act 1949 insert—

26A 35Opt-in to marriage of same sex couples: places of worship

(1) A marriage of a same sex couple in an appropriately registered
building according to such form and ceremony as the persons to be
married see fit to adopt may be solemnized on the authority of two
certificates of a superintendent registrar.

(2) 40For the purposes of this section “appropriately registered building”
means a building which has been registered under section 43A.

(3) An application for registration of a building under section 43A may not
be made unless the relevant governing authority has given written
consent to marriages of same sex couples.

Marriage (Same Sex Couples) BillPage 6

(4) For that purpose, in relation to a building—

  • “relevant governing authority” means the person or persons
    recognised by the members of the relevant religious
    organisation as competent for the purpose of giving consent for
    5the purposes of this section;

  • “relevant religious organisation” means the religious organisation
    for whose religious purposes the building is used.

(5) Nothing in this section is to be taken to relate or have any reference to
marriages solemnized according to the rites of the Church of England.

(6) 10This section is subject (in particular) to sections 44A to 44C (registration
of shared buildings for marriage of same sex couples) and regulations
made under any of those sections..

(2) Schedule 1 (registration of buildings etc) has effect.

5 Opt-in: other religious ceremonies

15After section 26A of the Marriage Act 1949 insert—

26B Opt-in to marriage of same sex couples: other religious ceremonies

(1) A marriage may, in any of the following cases, be solemnized on the
authority of two certificates of a superintendent registrar.

(2) Case A is where—

(a) 20the marriage is of a same sex couple according to the usages of
the Society of Friends (commonly called Quakers), and

(b) the relevant governing authority has given written consent to
such marriages of same sex couples.

(3) For that purpose “relevant governing authority” means the recording
25clerk for the time being of the Society of Friends in London.

(4) Case B is where—

(a) the marriage is of a same sex couple professing the Jewish
religion according to the usages of the Jews, and

(b) the relevant governing authority has given written consent to
30such marriages of same sex couples.

(5) For that purpose the meaning of “relevant governing authority” is to be
determined in accordance with this table—

The “relevant governing authority”
is...
...if the marriage falls to be registered
by...
the Chief Rabbi of the United
Hebrew Congregations of the
Commonwealth
35the secretary of a synagogue
certified under paragraph (a) of
the relevant definition
(certification by the President of
the Board of Deputies)

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The “relevant governing authority”
is...
...if the marriage falls to be registered
by...
the person or persons duly
recognised by the members of—
(i) the West London Synagogue of
British Jews (“the West London
Synagogue”), and
(ii) the other synagogues that are
constituents of or affiliated to the
Movement for Reform Judaism
—either the secretary of the West
London Synagogue, as certified
5under paragraph (b) of the
relevant definition
—or the secretary of another
synagogue in a case where:
(i) the secretary is certified under
10paragraph (d) of the relevant
definition by the secretary of the
West London Synagogue, and
(ii) the synagogue is one of those
which are constituents of or
15affiliated to the Movement for
Reform Judaism
the person or persons duly
recognised by the members of—
(i) the Liberal Jewish Synagogue,
St. John’s Wood (“the St. John’s
Wood Synagogue”), and
(ii) the other synagogues that are
constituents of or affiliated to
Liberal Judaism
—either the secretary of the St.
John’s Wood Synagogue, as
certified under paragraph (c) of the
20relevant definition
—or the secretary of another
synagogue in a case where:
(i) the secretary is certified under
paragraph (d) of the relevant
25definition by the secretary of the
St. John’s Wood Synagogue, and
(ii) the synagogue is one of those
which are constituents of or
affiliated to Liberal Judaism
the person or persons duly
recognised by the members of the
synagogue by whose secretary the
marriage falls to be registered
30the secretary of a synagogue
certified under paragraph (d) of
the relevant definition
(certification by the secretary of the
West London Synagogue or the
35secretary of the St. John’s Wood
Synagogue) in a case where the
synagogue is not one of those
which are constituents of or
affiliated to:
40(i) the Movement for Reform
Judaism, or
(ii) Liberal Judaism

In that table—

  • “relevant definition” means the definition of “secretary of a
    45synagogue” in section 67;

  • a reference to a person or persons being duly recognised is a
    reference to the person or persons being recognised for the
    purpose of giving consent for the purposes of this section.

(6) Case C is where—

Marriage (Same Sex Couples) BillPage 8

(a) the marriage is of a same sex couple according to religious rites
or usages (other than the rites of the Church of England),

(b) one or each of the couple is house-bound or a detained person,

(c) the marriage is at the usual place of residence of the house-
5bound or detained person or persons, and

(d) the relevant governing authority has given written consent to
marriages of same sex couples according to those religious rites
or usages.

(7) For that purpose—

  • 10“relevant governing authority” means the person or persons
    recognised by the members of the relevant religious
    organisation as competent for the purpose of giving consent for
    the purposes of this section;

  • “relevant religious organisation” means the religious organisation
    15according to whose rites or usages the marriage is to be
    solemnized.

(8) Subsection (6) does not authorise a marriage that may be solemnized
under subsection (2) or (4)..

Part 5 of the Marriage Act 1949

6 20Armed forces chapels

(1) Part 5 of the Marriage Act 1949 is amended as follows.

(2) Section 68 (solemnization of marriages in naval, military and air force chapels):
after subsection (1) insert—

(1A) Nothing in this Part of this Act which applies to the marriage of same
25sex couples applies to marriage according to the rites of the Church of
England..

(3) Section 70 (registration of chapels for marriages otherwise than according to
rites of Church of England): after subsection (3) insert—

(4) This section does not apply to the marriage of same sex couples..

(4) 30After section 70 insert—

70A Registration of chapels for marriages of same sex couples otherwise
than according to rites of Church of England

(1) The Secretary of State may apply to the Registrar General for a chapel
to which this Part applies to be registered for the solemnization of
35marriages of same sex couples.

(2) Where an application is made under this section, subsections (1) to (3)
of section 70 apply to the application as if it had been made under
section 70.

(3) Where a chapel is registered on an application under this section,
40subsections (1) to (3) of section 70 apply in relation to the chapel as if it
had been registered on an application under section 70.

(4) Any application for the cancellation of a registration is to be made by
the Secretary of State.

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(5) The Secretary of State may by statutory instrument make regulations
about—

(a) the registration of chapels under this section, and

(b) the cancellation of registrations.

(6) 5The regulations may, in particular, make provision—

(a) as to the procedures to be followed by the Secretary of State in
making an application for registration or an application for
cancellation of a registration;

(b) as to the procedures to be followed by the Registrar General on
10an application for registration or an application for cancellation
of a registration;

(c) as to consents required before an application for registration
may be made (including such provision amending section 2 of
the Marriage (Same Sex Couples) Act 2013 as the Secretary of
15State considers appropriate to secure that the giving of such a
consent is an opt-in activity under that section).

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

(8) 20In this section a reference to the cancellation of a registration is a
reference to the cancellation, under section 70(2) (as applied by this
section), of a registration under this section..

The Marriage (Registrar General’s Licence) Act 1970

7 Opt-in: “deathbed marriages”

25In section 1 of the Marriage (Registrar General’s Licence) Act 1970 (marriages
which may be solemnized by Registrar General’s Licence), after subsection (2)
insert—

(3) A marriage of a same sex couple according to religious rites or usages
may not be solemnized in accordance with this Act unless the relevant
30governing authority has given written consent to marriages of same sex
couples according to those religious rites or usages.

(4) For that purpose—

  • “relevant governing authority” means the person or persons
    recognised by the members of the relevant religious
    35organisation as competent for the purpose of giving consent for
    the purposes of this section;

  • “relevant religious organisation” means the religious organisation
    according to whose rites or usages the marriage is to be
    solemnized..

40The Church in Wales

8 Power to allow for marriage of same sex couples in Church in Wales

(1) This section applies if the Lord Chancellor is satisfied that the Governing Body
of the Church in Wales has resolved that the law of England and Wales should