Marriage (Same Sex Couples)

Memorandum submitted by Lesbian and Gay Lawyers Association (MB 22)

The Marriage (Same Sex Couples) Bill

Obvious Oversights in the First Draft of the Bill

LAGLA

1. The Lesbian and Gay Lawyers Association (LAGLA) membership is made up of solicitors, barristers, judges and academics. LAGLA is not a lobbying organisation, but a group of lesbian and gay lawyers who meet for seminars, conferences and social gatherings. We have more than 600 members with a wide variety of legal backgrounds and feel, therefore, that we are uniquely placed to respond to the Government’s proposals. LAGLA was founded in 1994 and responded to the Government consultation on civil partnership and then to the draft bill in 2003/04, in what we understand was regarded as a helpful way all around. [1] We responded to the Government’s consultation on equal marriage in 2012. [2]

2. The LAGLA Marriage Working Group has identified three areas where it seems to us the drafting of the Bill is clearly mistaken because some issues, either legally or logically, were not fully considered.

3. These are as follows:

1. Conversion and the ability of civil partners to get married (clause 9)

2. Jurisdiction for divorce (Schedule 4, Part 4)

3. Private Legal Instruments (Schedule 4, part 1)

Conversion of Civil Partnerships to Marriages (Clause 9)

4. It is not entirely clear what the effect of clause 9 would be. There are essentially two possibilities:

a. Clause 9 provides an accelerated and simplified conversion procedure for those couples who have a civil partnership contracted in England and Wales, but any other civil partners can still get married; or

b. Clause 9 provides for conversion for those particular couples only and other civil partners cannot get married.

5. This depends on whether s.11(b) of the Matrimonial Causes Act 1973 is interpreted as preventing a marriage or civil partnership between a couple who are already married to or civil partners of each other.

6. The relevant part reads:

"11. A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say:

(b) that at the time of the marriage either party was already lawfully married or a civil partner;"

7. Of course a marriage between two people who are already married (or a civil partnership between a couple who are already civil partners, e.g. because they registered a partnership in another country) would be a nullity at worst, but could be a fall-back position for them if they are unsure about whether their original marriage or civil partnership is recognised in England. For those couples it matters little and so it has not mattered in English law so far and courts did not have to decide on this conclusively. In Mark v Mark [2004] EWCA Civ 168 Thorpe LJ obiter said that the wedding of Mr and Mrs Mark at the Merton register office was a nullity as they had already married in Nigeria (paragraph 7).

8. S.11 does not, however seem to prevent a couple going through the ceremony. No doubt many couples do, for example, because they (perhaps hastily or when they had no money to throw a big party) married in a register office quietly and later have a religious wedding. Legally of course the later wedding has no effect and their marriage starts at the earlier point.

9. The question is, however, how to treat a couple who are civil partners and then get married because they want to change their status. Under a strict interpretation of s.11, they would then not be married, whether they so married in England or elsewhere. Hence if b. above is correct, then only those civil partners who registered originally in England and Wales can get married. All other same-sex couples can never get married at all under English law. If they did get married abroad, English law would not recognise that. This is because clause 9 would not apply to them. The Act would prevent them from ever getting married.

10. This cannot be the government’s aim and is contrary to the purpose of the whole Act. It should, therefore be possible for those couples to get married.

11. It seems that the drafters may have been overly cautious not to offend Northern Ireland here. However, this is unnecessary because:

· same-sex marriages from outside the UK are treated as civil partnerships in Northern Ireland under the Civil Partnership Act 2004 as they are now and will continue to be so treated;

· same-sex marriages from England and Wales will be treated as civil partnerships in Northern Ireland by virtue of paragraph 2 of schedule 2.

12. As drafted therefore the effect seems to be as follows:

Civil Partnership registered in

Treated under English law as

Marriage in

Treated under English law

Treated in Spain etc

Treated in NI as

England

CP

England (s.9 conversion)

Marriage

Marriage

CP

NI

CP

Not poss in Engl.

NI

CP

Spain

CP

Marriage

CP

Germany

CP

Not poss in Engl.

Germany

CP

Spain

CP

Marriage

CP

13. The effect of this would be that couples who marry in Spain or elsewhere are treated as civil partners for English law but as married in many other countries. Should their relationship break down the English courts could only dissolve the civil partnership but not the marriage, which means they may continue to remain married. It is unlikely that such couples would appreciate the law in this area and may therefore have "limping" marriages.

Example 1

Bernd (German) and Claudio (Portuguese) have been a couple since they met in 1995. They have always lived in London. When registered partnership came in under German law, they registered there in 2002. In 2015 they get married in Portugal. Under English law their German registered partnership is a civil partnership. The Portuguese marriage is a nullity. Although they now tick the boxes for "married" etc (rather than civil partnership) on all forms, under English law they are not married. So for Portuguese law they are a married couple but for English law they are not.

In 2025 their relationship breaks down and they want to get divorced in England. Their lawyers discover, however, that they are not married under English law and that the English courts can only dissolve the civil partnership. The only courts which could deal with the divorce are the Portuguese courts. However, Portuguese law takes the view that under Brussels II the Portuguese courts do not have jurisdiction because only one of the spouses is Portuguese and neither is habitually resident in Portugal. As a result they have a dissolved civil partnership under English and German law but under Portuguese law they remain married.

14. We do not see that there is either a need to prevent any couples who are already civil partners from getting married or from marriages from elsewhere not to be recognised under English law.

15. We further think that the provision in clause 9(7) should apply to all same-sex couples who get married (whether in England and Wales or elsewhere) and who were in a civil partnership before.

16. We also take the view that as it stands, there is a danger that the drafted conversion falls foul of EU laws preventing discrimination on grounds of nationality as it would disproportionately affect foreign EU nationals living in England and Wales.

17. This would also then remedy one of the remaining iniquities for trans people.

Example 2

Janet is a trans woman. She is English. She does not yet have a gender recognition certificate. In 2011 she meets Darren, who is from Derry in Northern Ireland and they register a civil partnership in Derry register office in the first week of January 2013. They both live in Oxford. In 2015 Janet is ready to apply for her gender recognition certificate. However, in order to do so (and because there can be no opposite-sex civil partnership), the law requires her and Darren to annul their civil partnership (s.50(1)(d) of the Civil Partnership Act 2004). They are not able to convert their civil partnership into a marriage under clause 9 of the Marriage (Same Sex Partners) Act 2013, nor get married before the application for a gender recognition certificate because they registered their civil partnership in Northern Ireland, not knowing that this would prevent them from remaining a legal couple.

18. We do not have a problem with provisions that only couples who originally registered a civil partnership in England and Wales can avail themselves of an administrative and perhaps cheaper conversion procedure while those who registered elsewhere would have to go through a full wedding ceremony. This may in fact be prudent to afford international recognition.

Thus clause 9 should be amended as follows:

· Delete subsection (1) and replace it with:

(1) Nothing shall prevent a couple who are already civil partners from getting married, whether anywhere in the United Kingdom or elsewhere.

· In subsection (2) delete the words "within subsection (3)"

· Delete subsection (3)

· In subsection (7) insert: "When a couple who are already civil partners get married or" at the beginning of the subsection.

· In subsection (8) delete the definition of "England and Wales civil partnership".

Other points

19. Of course our preference would be for same-sex marriages to be recognised throughout the UK. Therefore Schedule 2 should be amended to reflect that. There is of course precedent for that. An English couple both aged 16 can elope to Gretna Green and get married there without their parents’ consent, which is then fully recognised elsewhere in the UK.

20. If there is a deeming provision that treats marriages between parties who were previously civil partners as starting on the date of their original civil partnership registration, we can see no reason why this should not also apply to those unfortunate couples who had to annul their civil partnerships or marriages in order for one of them to obtain a gender recognition certificate. There is no reason why this should not apply retrospectively.

Jurisdiction

21. Jurisdiction for divorce, nullity etc. is governed by EU law, namely Council Regulation 2201/2003 (Brussels II, also called Brussels IIA or II bis). The EU definition of marriage is not limited to opposite-sex couples. This is not something which EU law defines, but which is left to Member States. This is clear from the reports on the proposals for a Regulation on Marital Property Regimes (as can be seen on the relevant website [3] ).

22. Therefore, Parliament has no competence to legislate in this area and therefore Part 4 of Schedule 4 of the Bill would be entirely ultra vires and without effect. It should therefore be deleted.

23. The only part which should be preserved from it (and which would not currently be ultra vires) is 2(1)(c) of the Schedule. Since this only applies in any event if no other EU Members state has jurisdiction, this would be a fall-back position allowed under Article 7 of the Brussels II Regulation. Of course there is no reason why this should not apply to opposite-sex couples too, who may (in very rare cases, mainly applying to Filipinos) find themselves in the same situation.

Schedule 4 should therefore be amended as follows:

· Substitute paragraph 6 with the following:

6 In subsection (2) (b) after "and" insert (i) and after "begun" insert "; or (ii) the couple are of the same sex and married each other under the law of England and Wales and it appears to the court to be in the interest of justice to assume jurisdiction in the case"

· Substitute paragraph 7 with the following:

7 In subsection (3) (b):

(1) after "and" delete "either of the parties to the marriage"

(2) after "(i)" insert "either of the parties to the marriage"

(4) after "begun;" delete "or";

(3) after "(ii)" insert "either of the parties to the marriage"

(3) after "death" insert "; or (iii) the couple are of the same sex and married each other under the law of England and Wales and it appears to the court to be in the interest of justice to assume jurisdiction in the case"

· Substitute paragraph 8 with the following:

8 In subsection (4):

(1) after "only if)" delete "the petitioner"

(2) after "(a)" insert "the petitioner"

(4) after "begun;" delete "or";

(3) after "(b)" insert "the petitioner"

(3) after "date" insert "; or (c) the couple are of the same sex and married each other under the law of England and Wales and it appears to the court to be in the interest of justice to assume jurisdiction in the case"

· Insert paragraph 9:

9 Amend s 55, subsection 2 of the Family Law Act 1986 as follows:

(1) after "and only if" delete ",either of the parties to the marriage to which the application relates",

(2) after "(a)" insert "either of the parties to the marriage to which the application relates",

(3) after "(b)" insert "either of the parties to the marriage to which the application relates",

(4) after "(c)" insert "either of the parties to the marriage to which the application relates",

(5) after "ending with the date of death" insert ", or (d) 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"

Private Legal Instruments (Schedule 4, part 1)

24. This provides:

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

25. It is not clear what this means. One interpretation is that this only relates to wills etc which have already taken effect (i.e. where the testator has died). However, the wording is "made", so the more likely interpretation would be that this provision would have the effect that any references to "spouse", "marriage", "husband", "wife" etc. in documents such as wills and deeds of trust, shall be interpreted as referring to an opposite-sex marriage where that document is executed prior to the entry into force of the Act. Indeed, this is the position set out in the Explanatory Notes to the Bill.

26. No doubt this is intended to reflect that person who made the will etc. could not have intended references to those terms to include reference to same-sex spouses as these were not possible at the time document was executed.

27. However, it is our view that not providing for references to spouses etc in existing documents to mean same-sex spouses may lead to confusion, and/or unintended consequences:

Example 3

Dorothy is the settlor of a discretionary trust executed in 2005. The beneficiaries of the trust are named as children of Dorothy’s family, their spouses and children. Dorothy provides a letter of wishes to her trustees setting out that she wishes all classes of beneficiaries to be treated equally.

At the time of setting up the trust, not all of Dorothy’s children were married. Her son David subsequently marries his same-sex partner following entry into force of the Act. Dorothy had intended all spouses of her children to benefit and assumes David’s husband will too. If the trustee makes a gift to David’s husband he will be acting ultra vires his powers, notwithstanding he is exercising his discretion in line with what the settlor would have done had she be making the decision herself. Depending on the nature of the trust deed, it may or may not be a simple matter to change the document so as to include same-sex marriages.

Example 4

Harold makes a will in 1995 leaving legacies to his grandchildren and their spouses. At the time of making the will, some of the grandchildren are not married. Harold’s granddaughter, Susan, marries her partner Julie. Susan predeceases Julie, however Julie and Harold become very close such that Harold is very keen for her to benefit when he dies. He decides he does not need to change his will as it already refers to his grandchildren’s spouses.

Example 5

If Susan and Julie had instead registered a civil partnership in 2012 and Harold was by then unable due to his mental state to change his will before he finally died in 2017, Julie would also have lost out as the law seems to presume that the testator would inevitably have been hostile to and therefore excluded same-sex partners. The only way this could possibly be remedied would be by way of a costly application to the Court of Protection for an authorisation of a statutory will.

28. In our view, references to spouse etc in existing private legal instruments should be interpreted in light of the new Act (i.e. to include same-sex marriages) and this should be explicit within the Act. Not doing so could in fact have the consequence of putting same-sex spouses in a worse position than civil partners:

Example 6

Harriet makes a will in 2005 leaving her estate equally to all her children (or if they predecease her their spouse or civil partner if they survive them, or if not their children). Not all of her children are married. In 2015 Jacob marries his partner Adrian. Harriet checks her will and notes that spouses are included. However, Part 1 of Schedule 4 of the Act would mean that same-sex spouses are not included as the will was made before the Act came into force. So if Jacob dies before Harriet, Adrian would not get a share of Harriet’s estate. However, if Jacob and Adrian had instead entered a civil partnership, he would have received a share.

29. It is not for the state to second guess what the intention of a testator or settlor would have been and certainly not presume that they were hostile to same-sex marriage If they mean to exclude a certain group of spouses, be those of a certain religion, race or sex, they should say so explicitly.

30. We therefore take the view that instead provision should be made so that in all those private legal instruments which have not yet fully taken effect (e.g. wills where the testator is still alive when the Act comes into force; trusts which have not yet been finally distributed) civil partners (and for the avoidance of doubt same-sex spouses) should be included wherever there is a reference to spouse etc. Furthermore, provision should be made for any reference to a civil partner in an existing document to include a spouse in a same sex marriage.

February 2013


[1] e.g. Hansard 12 Oct 2004 : Column 199

[2] http://www.lagla.org.uk/Resources/Documents/LAGLA%20RESPONSE.pdf

[3] http://ec.europa.eu/justice/civil/family-matters/marriage/index_en.htm

Prepared 15th February 2013