Marriage (Same Sex Couples)

Memorandum submitted by Barry Crown (MB 103)

1. This submission relates to the problems arising where a same-sex spouse or civil partner dies overseas. An amendment to the Marriage (Same Sex Couples) Bill 2012-13 would provide a solution to many of these problems.

2. An important issue to be considered in drafting equal civil marriage legislation is the fact that whatever arrangements are made for the UK, same-sex marriages performed here will not be recognised in most countries of the world. In today’s highly mobile society, that potentially creates serious difficulties for same-sex couples.

3. One particularly troublesome case is that of the death overseas of a civil partner or same-sex spouse. Unlike the position in the UK, in many countries the registry of births and deaths is not open to the public.

4. In Malaysia, for example, only immediate family members may obtain death certificates directly from the registry. Other persons must apply through a solicitor, who must furnish reasons satisfactory to the authorities as to why the death certificate is required.

5. Civil partnerships and same-sex marriages are not recognised under Malaysian law, so a British civil partner or same-sex spouse would not be able to obtain a death certificate for his/her partner/spouse directly from the Malaysian registry.

6. As homosexuality is a criminal offence under Malaysian law, it would be inadvisable for the surviving civil partner or spouse to state his or her true relationship with the deceased when applying through a solicitor to obtain a death certificate. Obviously this creates a difficulty in supplying a reason satisfactory to the authorities for the issue of the death certificate.

7. Where it is not possible to obtain a foreign death certificate at all, the surviving partner’s only recourse would be to apply to the English courts for a presumption of death order, which is an expensive procedure.

8. Where a foreign death certificate has been obtained, a practical difficulty occurs should this document be mislaid or should further death certificates be required.

9. Where the deceased was a British national, this problem can be avoided by registering the death with the Foreign and Commonwealth Office or with the British consular authorities overseas. (See http://www.fco.gov.uk/en/travel-and-living-abroad/births-deaths-marriages-civil/registering-a-death.)

10. The advantage of this procedure is that a British-style death certificate will be issued and a permanent record kept at the General Register Office in the UK, where further death certificates can be obtained.

11. Where the deceased was not a British national, there is currently no way to obtain further death certificates except by applying again to the foreign authorities with all the difficulties that may involve.

12. There is potentially a very simple solution to this problem, which would be for the UK General Register Office to accept the deposit of foreign death certificates of civil partners or spouses of British citizens.

13. Currently, the General Register Office in the UK does accept the deposit of foreign same-sex marriage certificates or foreign civil partnership certificates where one of the spouses or partners is a British citizen (Civil Partnership Act 2004, section 241).

14. This would therefore be only a slight extension of existing practice, but it would require legislation.

15. I made a representation on this point as part of the consultation process leading to the current bill and I wrote a short note published on 5th October 2012 on the Law Society Gazette website. I am disappointed to note that this proposal has not been adopted in the current bill.

16. Allowing the deposit of foreign death certificates of civil partners and spouses would solve a very real problem, which will affect more and more people as a result of the extension of marriage rights and increasing globalisation.

March 2013

Prepared 8th March 2013