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On Friday the government published its draft legislation for the debate on redefining marriage by introducing same-sex marriage. It is the Marriage (Same-sex Couples) Bill 2013. It is promoted as creating equality. However lawyers looking at the draft legislation will find there are still differences in law between heterosexual marriage and same-sex marriage if introduced.
Heterosexual marriage will retain five grounds (technically, facts) for divorce but although same-sex marriage will also have five, a new s1.6 MCA will explicitly state that "only conduct between the respondent and a person of the opposite sex will constitute adultery" for the purposes of s1. It is difficult to see why this is included apart from making the law accessible to the public because it has always been clear law that "adultery" cannot take place between people of the same-sex. Same-sex infidelity will be (then as now) unreasonable behaviour, with the importance of avoiding naming another party for fear that technically they might have to be given notice etc. Moreover given reference also to "conduct" in s25.2 MCA in the context of financial claims, it will be crucial to avoid confusing financial conduct with another, very different, sort of conduct!
For similar reasons, there cannot be a nullity of a same-sex marriage for inability or wilful refusal to consummate, so a new s12.2 MCA would be created to say that a same-sex marriage cannot be void for this reason. Still in respect of nullity, s11.3 MCA whereby a marriage to someone of the same-sex is void, usually in the context of a mistake or wilful deceit and the stuff of many Shakespearean comedies, would be simply abolished. I suspect it was rarely used. There are other elements in the draft legislation distinguishing heterosexual and same sex marriage.
But for the international lawyer it is jurisdiction which interests. This is Sch 4 Part IV of the draft legislation creating a new s5A DMPA 1973. It is not exactly clear yet what will be the jurisdiction because it refers to secondary legislation which I do not think has yet been published. For divorce at present, jurisdiction is the confusing and overlapping mixture of residence and/or habitual residence with sole domicile or of joint domicile, as found in Art 3 Brussels II, with sole domicile only available if no EU state has jurisdiction. Would it be the same for same-sex marriage?
Two problems present themselves as far as I could see:
First, same-sex marriage is still very rare around the world. So there is no issue of lots of other EU countries having competing jurisdiction. But because it is rare, same-sex couples who enter into a same-sex marriage in England may find themselves abroad in a country which does not have same-sex marriage and yet they no longer have conventional jurisdictional connections with England for a divorce here.
To provide for these same-sex couples, the draft legislation provides that England nevertheless has jurisdiction to divorce a same-sex couple if no court (anywhere in the world) has jurisdiction to divorce them, either of the married same-sex couple is domiciled in England and Wales when the proceedings begin, they were married 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. So for same-sex couples married in England living abroad and unable to divorce abroad, England will take on jurisdiction to divorce them if one of them is domiciled here and it is in the interests of justice.
As to jurisdiction generally, secondary legislation is anticipated to provide for jurisdiction for divorce for a same-sex couple where one of them is or has been habitually resident in an EU member state, and national of a member state or domiciled in the UK or the Republic of Ireland, taking particular note of the corresponding provisions of Brussels II (BII). If the draft legislation stays the same as it entered Parliament, it will produce wonderful litigation for lawyers because of complicated and uncertain drafting issues. Nevertheless, it is to be hoped that any new law, if introduced, and secondary legislation, will follow Art 3 BII identically so that the divorce jurisdiction for same-sex couples will be exactly the same as heterosexual couples otherwise the government might as well write an open cheque to the legal profession!
Secondly, the Civil Partnership Act 2004 promoted recognition of registered same sex relationships around the world to be treated in England as a civil partnership, ss212 - 218 and Sch 20 CPA 2004, even if the registered relationship abroad carried much lesser rights, status and entitlements in the other country. (Inevitably it encouraged forum shopping.) What would happen about these arrangements if same sex marriage was introduced? It was not clear until the draft legislation was published whether these would be recognised as same-sex marriages. They will not: new s213.1A CPA 2004 will say marriage is not an "overseas relationship". So England will continue to recognise the 20 or so foreign registered relationships (set out in Sch 20 CPA) as if they are civil partnerships in England, allowing dissolution of those foreign registered relationships in England as if dissolution of an English civil partnership with corresponding financial remedies.
What is unclear though is the international future of this provision when, as seems almost inevitable, civil partnership is available to heterosexual couples. If the basis of same-sex marriage is equality of access to marriage of the same-sex community then civil partnership must be accessible to the heterosexual community. The government raised the issue themselves in their original Consultation Paper. It does not appear in the draft legislation as far as I can see but it will only be a short time before England's highly sophisticated discrimination industry secures compensation from the government for not allowing heterosexuals to enter into civil partnership.
What would then be the state of recognition of foreign same-sex registered relationships as civil partnerships in England? At one level, it can certainly just continue as now. But should it then be opened up to heterosexual (quasi-cohabitation and non-marriage) registered relationships abroad of which there are a number? This would give rise to many more possible claims in English family courts. One of the conundrums of the draft legislation is that the continued existence of civil partnerships is unclear. They were introduced to answer the call for same-sex registered relationships but now there will be availability of marriage if this legislation goes through.
England is left with the uncertain status of civil partnerships (e.g. same sex plus heterosexual, foreign recognitions etc) and the government seems to be ignoring what will happen. (For example, someone in a foreign registered heterosexual relationship with a connection with this country will want to bring civil partnership claims here, as they are often more extensive than almost all other countries and sue the government for damages for discrimination for failure to allow this.) Lawyers will pick up the pieces with considerable litigation inevitable.
The media report a surge in demand for same-sex marriages in England from many couples abroad coming here for that purpose, with apparent hopes for an increase in tourism and other revenue. Parliament should not underestimate the jurisdiction and other international elements arising from the proposed same-sex legislation. It is of considerable relevance including to the family justice system.
This is of course the detail of the proposed legislation. The primary issue remains whether in the second decade of the 21st century our country should be redefining what historically and globally is and has been marriage or whether the demands of apparent equality compel this redefinition. Lawyers will undoubtedly do exceptionally well out of this legislation. MPs and the public debating the redefinition of marriage need to look at wider issues.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.