13th Jun 2016

Civil Partnership & Same-Sex Marriage – Capacity and Recognition of Foreign Relationships

By David Allison

In this blog, director David Allison examines the capacity and recognition of foreign same sex marriages and civil partnerships under the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013.

Civil Partnership Act 2004

The Civil Partnership Act 2004 came into effect on 5 December 2005. This Act applies to England & Wales, Scotland and Northern Ireland. It was introduced as an alternative to marriage for same sex couples. The Act largely replicates legislation on marriage and divorce with some relatively insignificant differences:

  • there is no provision for religious registration;
  • the signing of the civil partnership document registers the partners whereas a marriage certificate is only evidence of the marriage;
  • there is no prescribed form of words for the registration;
  • there is no corresponding offence of bigamy (although one cannot register as a civil partner if married or already in a civil partnership and it is an offence to give false information on the notice);
  • there is no requirement to consummate a civil partnership;
  • adultery is not a ground for dissolution (divorce); and
  • pension providers need only provide for survivor/widow’s benefits in respect of contributions from 5 December 2005.

Recognition of Foreign Relationships

The Act makes extensive provision for recognition of foreign relationships as civil partnerships. Under

s.215 two people are to be treated as having formed a civil partnership as a result of having registered an overseas relationship if, under the relevant law, they:

(a) had the capacity to enter into the relationship; and

(b) met all the requirements to ensure formal validity of the relationship.

Capacity” is determined according to the “relevant law” which is defined by s.212 (2) as the law of the country or territory where the relationship is registered. S.212 defines “overseas relationship” as a relationship which is either a specified relationship or which meets the general conditions. The specified relationships are set out in schedule 20 which is updated from time to time by statutory instrument. It presently included a number of overseas same-sex marriages. However the Marriage (Same Sex Couples) Act 2013 amends the Civil Partnership Act so that overseas same-sex marriages are no longer recognised as civil partnerships.

S.214 of the Civil Partnership Act sets out the general conditions which are that under the relevant law the relationship may not be entered into if either of the parties is already party to a relationship of that kind or is married. The relationship must also be of an indeterminate duration and the effect of entering into it is that the couple are treated as a couple either generally or for specified purposes or as if married.

Marriage (Same Sex Couples) Act 2013

This Act applies to England and Wales but it does not extend to Scotland or Northern Ireland. Scotland has passed the Marriage and Civil Partnership (Scotland) Bill which provides for same-sex marriage. Northern Ireland has no plans to introduce legislation for same-sex marriage.

S.1 – Marriage of same sex couples is lawful.

S.11 (1) – In the laws of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.

S.11 (2) The laws of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with subsection (1).

However, there remain some differences between same sex and opposite sex marriage:

  • whilst provision is made for religious same sex marriages this is only possible if the religious group ‘opts in’. Clergy from the Church of England and the Church in Wales are prohibited from performing a same sex marriage;
  • there is no requirement to consummate a same sex marriage (and therefore nullity on the basis of non-consummation is not available as a ground for divorce);
  • adultery is not a basis for divorce; and
  • pension providers need only provide for survivor/widow’s benefits in respect of contributions from 5 December 2005 i.e. the date of implementation of the Civil Partnership Act 2004.

The Act makes provision for conversion of civil partnerships to marriage. That procedure will be available from December 2014.

Recognition of Overseas Marriages

S.10 provides that an overseas marriage is not prevented from being recognised simply because it is the marriage of a same sex couple. That is not to say that it will be recognised. The Act does not otherwise address requirements for recognition. Therefore whether an overseas same sex marriage will be recognised will depend on the usual rules of private international law. These require that:

(a) the marriage must have been properly performed under the laws applicable in the country of celebration; and

(b) the parties to the marriage both must have had capacity to marry each other under their “personal” law. Under English law this relates to the domicile of the parties immediately before the marriage. This rule is modified for marriages which take place in England and Wales to the extent that only one of the couple need have capacity in accordance with the law of their domicile.

This may create problems for same sex couples bearing in mind that same sex marriage is only available in a handful of jurisdictions.

For example:

Ilya is Russian. He is posted from Moscow to London by his employer. There he meets Luca who similarly has been temporarily posted from Milan to London by his employer. They meet, fall in love and decide to marry in London. Their marriage should not be recognised in English law because neither has capacity to marry under the law of their domicile (their personal law).

The Act potentially makes the situation worse for couples who marry overseas.

For example:

Jane is from London but is living temporarily in Brussels working for the EU. There she meets Alexandra from Greece. They fall in love and marry in Brussels. After the marriage the couple move to London where they decide to settle.

Even though Jane is English because the marriage took place overseas the marriage will only be recognised if both of the couple has capacity to marry under the law of their domicile (their personal law). As same sex marriage is not recognised in Greece the marriage should not be recognised in England.

Ironically, prior to the Marriage (Same Sex Couples) Act 2013 the marriage would have been recognised as a civil partnership.

David Allison is a director at Family Law in Partnership. He acts for a wide range of individuals including business owners, entrepreneurs, bankers, other lawyers and their spouses. The focus of his practice is financial claims on divorce, particularly those with an international dimension, but he is also well known for his expertise in the legal issues affecting cohabitants, same sex couples and civil partners. For more information on David and his family law practice view his profile. Contact David at T:020 7420 5000 E:dna@flip.co.uk