Marriage (Same Sex Couples) Bill

Memorandum submitted by Stuart Davis (MB 11)

1 Background

I am a practising solicitor whose career over the last 20 years has entailed advising on numerous aspects of European Union law. I have degrees from universities in England, France and Germany and have worked in various capacities in legal private practice, industry, and government. I am currently preparing to submit a thesis for a Ph.D. in law at the University of Reading on the topic of ‘Cross-Border Recognition of Same-Sex Marriages and Registered Partnerships under European Law’.

2 Summary

I welcome the opportunity to draw the Committee’s attention to what I see as two particular defects in the proposals. The Bill makes provision for the recognition of overseas marriages as marriages, rather than treating them as civil partnerships. However, the proposals do not go far enough in addressing issues of lack of capacity where one of the couple is domiciled in a country which does not recognise or permit same-sex marriage. This problem also arises for marriages celebrated in England and Wales, even as between UK residents, where neither of the couple is domiciled in the UK. The result is that many marriages involving UK citizens and residents could be found to be void, even as a matter of English law. I suggest a few minor amendments to Section 10 of the Bill which I believe could address this issue.

Recognition of Overseas Marriages

 

3.1. Section 10(1)(b) of the Bill provides that a marriage under the law of any country outside the UK "is not prevented from being recognised" under English law only because it is the marriage of a same-sex couple. That provision rightly does not go as far as to say that a same-sex foreign marriage must be recognised under English law in every case, and indeed paragraph 55 of the Explanatory Notes highlights that the effect of this clause is that such marriages "can" be recognised, not necessarily that they will be.

3.2. Whether an overseas marriage is recognised under English law depends on two factors. Firstly the marriage must have been properly performed under the laws applicable in the country of celebration (formal validity). Secondly the parties to the marriage must have had capacity to marry each other under their "personal" law, i.e. the law with which they are considered to be most closely connected (essential validity). The issue of which "personal law" applies is a complex question of choice of law rules, and different countries have different ways of treating this. Some countries (eg France) use nationality as the main connecting factor, whilst others, for example, use habitual residence. English law assesses capacity according to the law of the domicile of the parties immediately before the time of the marriage. [1]

3.3. The issue of capacity and choice of law for determining capacity is not addressed in the Bill. This may well be a deliberate choice. When the Law Commission considered these issues in 1987 it decided that legislation was not needed to change or restate on a statutory basis the existing choice of law rules. [2] Had it decided otherwise, it might well have recommended the position taken in its initial report, [3] that "all issues of legal capacity should be referred to the law of the ante-nuptial domicile." Hence the absence of specific provisions in the Bill simply has the result that capacity will continue to be assessed by reference to the law of the ante nuptial domicile. This will at least be consistent with the treatment of overseas heterosexual marriages.

3.4. However, unlike the case for heterosexual marriages, the failure to make specific provision regarding capacity will potentially cause very serious problems for same-sex couples who have concluded marriages (rather than registered partnerships) abroad. They might find that, for reasons relating to capacity under their personal law, they are not treated as being married under English law. These problems are exacerbated by virtue of the fact that, under Schedule 2, Part 3, of the Bill, s.213(1) Civil Partnership Act 2004 ("CPA") will be amended such that an overseas marriage will no longer be converted into a UK civil partnership. This means that certain same-sex couples married overseas may find that they are not recognised in England as being either married or partnered.

4. Comparison with Civil Partnership Act

4.1. Before highlighting the problem that is caused by failing to address the issue in the Bill, it is worth comparing the existing situation under the CPA, which deals with capacity issues more explicitly in order to ensure the validity of civil partnerships based on registered overseas relationships.

4.2. Overseas relationships are recognised under the CPA as civil partnerships. Section215((1)(a) CPA provides that such a relationship will only be recognised if, among other factors, the parties had capacity to enter into the relationship. The normal choice of law rules for marriage are modified by s.215, in the sense that capacity is to be determined according to the "relevant law", defined in s.212(2) as "the law of the country or territory where the relationship is registered (including its rules of private international law)".

4.3. This means that, if the partnership or marriage in question was legal in the jurisdiction where it was formed, English law will continue to regard it as being legal, albeit that it would convert it to a civil partnership rather than accepting it as a marriage. That will be the case even if the personal law of one of the parties would not itself recognise the relationship.

4.4. The effects of this are far reaching, and can perhaps best be explained by way of the following example:

4.4.1. Harry, a UK-domiciled British citizen, lived in London and then Paris for many years with his boyfriend Luca, an Italian, but they did not register a civil partnership, preferring to wait instead for an opportunity to marry. Luca’s career took him to Brussels for a few years on a temporary contract. Harry accompanied him, and after three month’s residence in Belgium the couple were then "habitually resident" in Belgium and eligible to marry under Belgian law, taking advantage of the rule under Article 46(2) Belgian PIL Code that Belgian law will ignore their respective incapacities to marry if at least one of them is habitually resident in Belgium. They celebrated their marriage whilst living in Belgium and, a few years later on the expiry of Luca’s work contract, they moved back to London.

4.4.2. A question arises as to the status of the couple under English law. Under Belgian law, the law of the place of celebration, both the formal and essential conditions of validity are met, and the marriage is valid. From a Belgian law perspective this is only because Belgium’s private international law rules require it to disapply the capacity rules under the couple’s respective personal laws (which, using nationality as the connecting factor as is the usual method in Belgium, would be English law for Harry and Italian law for Luca). Otherwise Belgian law would similarly have found the couple lacking capacity to marry. On returning to the UK, the CPA says the Belgian "marriage" is a valid overseas relationship because the couple had capacity to marry applying Belgian law including its private international law rules. It must therefore be treated as a civil partnership.

5. Situation under the Bill

5.1. The Bill would change this. Being a marriage (rather than, for example, a Belgian civil partnership or a French PACS), the relationship would no longer count as an "overseas relationship" under the newly amended s.213(1A) CPA, and would not be treated as a UK civil partnership. But, as the Bill is currently drafted, the relationship would also not be treated as a valid marriage.

5.2. This is because the normal rules as to capacity will now apply. In any proceedings in England or Wales concerning the validity of the marriage, the court will look to the personal law of the parties (determined, under English conflicts rules) by the ante nuptial domicile. If the court, as is likely, finds that Luca was domiciled in either Italy or France then, under the law of those countries, Luca lacked capacity to marry under his personal law. It is unlikely that English law would find that Luca had acquired a domicile of choice in Belgium after only three months residence there, particularly as the couple had no intention to settle permanently there. It is also similarly unlikely that an English court would find that he had acquired and maintained a domicile of choice in England, particularly after the couple’s move to France and thence to Belgium.

5.3. It might be supposed that Article 10(1)(b) of the Bill will solve this problem. However, whilst it might be sufficient to address any concerns as to whether Harry, as an English domiciliary, had sufficient capacity to marry Luca, it does not explicitly address the issue of Luca’s lack of capacity. In saying simply that the marriage "is not prevented from being recognised" it is not clear that the normal rules as to capacity under personal law are mandatorily being excluded. At the most the provisions seem to leave a discretion to the court to decide whether or not to apply the rules of capacity, but arguably they do not even go that far. On one reading the provisions say simply that the marriage is not void "only" by virtue of being a same-sex marriage, but implies that validity still needs to be assessed through the application of the normal capacity rules . The result is that Harry and Luca’s marriage might be treated as void, although the couple themselves may not become aware of this until many decades later, for example if Harry dies leaving his estate to his "husband".

6. Comparative Approaches

6.1. Similar issues have already been encountered in other jurisdictions to have introduced same-sex marriage. As already seen, Belgium inserted a new provision into its private international law code [4] , a few years after introducing same-sex marriage itself, in order to ensure that same-sex marriages, (whether celebrated in Belgium or in another country allowing same-sex marriage) would continue to be recognised as valid notwithstanding that one of the parties might lack capacity under his personal law [5] . A similar provision exists under Dutch law, which refers questions of capacity to the law of the place of celebration provided one of the future spouses is Dutch or habitually resident in the Netherlands. [6]

6.2. The proposals being considered in France also recognise the need to make explicit provision for capacity issues. The current draft law on French same-sex marriage [7] would modify conflicts rules to add a new clause to the French Civil Code [8] and apply a similar test as Belgium, disregarding issues of lack of capacity under personal law relating to same-sex marriage as long as the marriage in question was permitted by the law of the country where it was celebrated.

7. Solution

A similar solution is needed for England and Wales. I believe this could be achieved by a simple amendment to Section 10(1)(b) along the following lines:

"10 Extra-territorial matters

(1) A marriage under-

(a) the law of any part of the United Kingdom (other than England and Wales), or

(b) the law of any country or territory outside the United Kingdom,

is not prevented from being recognised under the law of England and Wales only because it is the marriage of a same sex couple or because one of the couple has been or is domiciled in, or is a national of, a country or territory which does not permit or recognise same sex marriage."

February 2013

Validity of marriages celebrated in England and Wales involving foreign domiciliaries

 

8.1. Section 10(1) is limited in its application to marriages celebrated outside of England and Wales. The question therefore arises as to how capacity issues are to be dealt with for marriages celebrated within England and Wales.

8.2. Where one of the couple at least is domiciled in England and Wales at the time of the marriage, the rule in Sottomayer v De Barros (No 2) [1] will ensure that the marriage is valid. This rule provides that "the validity of a marriage celebrated in England between persons of whom the one has an English, and the other a foreign, domicile is not affected by an incapacity which, though existing under the law of such foreign domicile, does not exist under the law of England". [2]

8.3. Where, however, neither of the couple is domiciled in England and Wales but the marriage takes place here, there appears to be no provision in the Bill ensuring that the marriage will continue to regarded as valid under English law where one of the couple comes from a country or territory which does not permit same-sex marriage. This is a serious omission.

8.4. Again it might be a deliberate policy choice designed to prevent couples from "forum shopping", i.e. coming to England to marry deliberately to circumvent a prohibition on doing so at home. However, the solution to that issue should be to introduce rules mandating recognition for couples habitually resident in the UK, but to change the rules of eligibility for concluding a same-sex marriage in England and Wales to limit it to habitual residents or domiciliaries, as is the case in Belgium and the Netherlands.

8.5. The alternative, I submit, is that a significant number of marriages celebrated in England and Wales between couples who lack capacity to do so will subsequently be found to be void even under English law, and this will be the case even where the couple were not "forum shopping" but had a genuine connection to the UK. The problem is exacerbated by the difficulties under English law of changing a domicile of origin or acquiring a UK domicile.

8.6. For example, if two women, resident in the UK, but domiciled one in Poland and one in Belgium, celebrate a same-sex marriage in the UK, the Polish woman will lack capacity to marry under English choice of law rules applying the law of the ante nuptial domicile. That issue may not be picked up at the time of the marriage, or even be a fact known to the couple, but has the potential to cause enormous problems later. Either the couple (or a third party) may be seeking to assert the validity of their marriage in an English court, and find it is not valid, or one of the couple may even be trying to assert they were not married in the first place. In neither case will the English court be able to ignore the potential lack of capacity caused by the fact that it is a same-sex marriage, given the absence of a corresponding provision to Section 10(1). The same of course also applies to couples from territories and countries outside the EU – if a Canadian marries a New Yorker in England the marriage will be valid under English law as both parties will have capacity to form a same-sex marriage, but if the Canadian marries a Texan the marriage will be void.

8.7. This is an issue of international credibility and public policy. Whilst English law cannot ensure that English marriages are recognised elsewhere in the world, it should at least ensure that such marriages are recognised here.

9. The solution again could be a simple further amendment to Section 10(1) so that it reads something as follows:

"10 Extra-territorial matters

(1) A marriage under-

(a) the law of any part of the United Kingdom (including a marriage under the law of [other than] England and Wales), or

(b) the law of any country or territory outside the United Kingdom,

is not prevented from being recognised under the law of England and Wales only because it is the marriage of a same sex couple { or because one of the couple has been or is domiciled in, or is a national of, a country or territory which does not permit or recognise same sex marriage.]"  


[1] Rule 74 in Collins , Dicey, Morris and Collins on The Conflict of Laws (15 th edition, Sweet & Maxwell, 2012), 939.

[2] Law Commission ‘Private International Law: Choice of Law Rules in Marriage’ (Law Com No. 165, HMSO July 1987)

[3] Law Commission Working Paper No.89

[4] L oi du 16 juillet 2004 portant le Code de droit international privé concernant le statut personnel, Moniteur Belge 27 July 2004

[4]

[5] ibid, Article 46(1) : « les conditions de validité du mariage sont régies, pour chacun des époux, par le droit de l'Etat dont il a la nationalité au moment de la célébration du mariage »

[5] ibid, Article 46(2) : « l'application d'une disposition du droit désigné en vertu de l'alinéa 1er est écartée si cette disposition prohibe le mariage de personnes de même sexe, lorsque l'une d'elles a la nationalité d'un Etat ou a sa résidence habituelle sur le territoire d'un Etat dont le droit permet un tel mariage »

[5]

[6] Art 2(a) Neth. PIL(M)A, see Ian Curry-Sumner, All’s well that ends registered? The Substantive and Private International Law Aspects of Non-Marital Registered Relationships in Europe (Intersentia, Antwerp 2005 ) 376.

[7] ‘ Projet de loi ouvrant le mariage aux couples de personnes de même sexe ’, JUSC1236338L , 7 November 2012 «  www.legifrance.gouv .fr » accessed 3 February 2013

[8] « Art. 202-1. - Les qualités et conditions requises pour pouvoir contracter mariage sont régies, pour chacun des époux, par sa loi personnelle.  

[8] « La loi personnelle d'un époux est écartée, sous réserve des engagements internationaux de la France, en tant qu'elle fait obstacle au mariage de deux personnes de même sexe, lorsque la loi de l'Etat sur le territoire duquel est célébré le mariage le permet.  »

[8]

[1] (1879) 5 PD 94

[2] North, PM and Fawcett JJ, Cheshire and North’s Private International Law (13 th edition, Butterworths, London 1999), 731, fn 18, quoting Collins and others, Dicey and Morris, The Conflict of Laws (12 th edition, 1993),679.

[2]

Prepared 27th February 2013