| CONFLICT OF LAWS — Marriage — Validity — Same-sex couple marrying in foreign jurisdiction — Whether marriage recognised as valid in English law — Whether failure to recognise same-sex marriage breaching Convention rights — Human Rights Act 1998, Sch 1, Pt I, arts 8, 12, 14
Wilkinson v Kitzinger and another
Fam D: Sir Mark Potter P: 31 July 2006
Where parties of the same sex entered into a marriage in a foreign jurisdiction which was lawful and valid in that jurisdiction, the relationship was regarded in English law as a civil partnership and not a marriage. The withholding from same-sex partners of the actual title and status of marriage did not constitute a breach of their rights under the Convention for the Protection of Human Rights and Fundamental Freedoms.
Sir Mark Potter P so held when dismissing a petition for a declaration that the marriage between the petitioner, Susan Wilkinson, and the first respondent, Celia Kitzinger, which had taken place in British Columbia was valid. The Attorney General was the second respondent and the Lord Chancellor intervened.
The petitioner and the first respondent, who had then been domiciled in England, had gone through a form of marriage, lawful and valid by the law of British Columbia which permitted and recognised as valid marriages between persons of the same sex. The petitioner sought a declaration that the marriage was valid under the law of England and Wales. She submitted that the provisions of the Matrimonial Cause Act 1973 and the Civil Partnership Act 2004, which on their face precluded recognition of marriage between persons of the same sex, amounted to a violation of her rights under arts 8 (right to respect for private and family life), 12 (right to marry) and 14 (prohibition of discrimination) of the Convention for the Protection of Human Rights and Fundamental Freedoms. She asked the court to give effect to s 11 of 1973 Act and ss 1(b) and 212–218 of the 2004 Act in such a manner as to recognise same-sex marriages, lawfully effected in other jurisdictions, as valid in English law.
SIR MARK POTTER P said with regard to art 12 that the “living instrument” doctrine, by which the Convention was interpreted in light of present-day conditions, could not be applied to bring within the scope of the Convention issues which were plainly outside its contemplation. The petitioner’s claim related to an area of considerable social, political and religious controversy, in respect of which there was no consensus across Europe. The European Court of Human Rights had consistently declared itself to be slow to trespass in such areas. While there had been a general move towards legal recognition to same-sex relationships across Europe in recent years, only the Netherlands, Belgium and Spain had passed laws providing for same-sex marriage. It was not proper or appropriate to adopt an interpretation of art 12 which was contrary to the meaning which it had borne at the time the Convention had been drafted and adopted, was contrary to the sense in which it was apparently understood and applied in all but three European states, and which by Convention jurisprudence to date it continued to bear. As for art 8, the Civil Partnership Act 2004 had been introduced and had effect as a measure to afford equivalent legal rights to same-sex partnerships as were available to opposite sex partners through marriage. By withholding from same-sex partners the actual title and status of marriage, the Government declined to alter the deep-rooted and almost universal recognition of marriage as a relationship between a man and a woman, but without in any way interfering with or failing to recognise the right of same-sex couples to respect for their private or family life in the sense, or to the extent, that European jurisprudence regarded them a requiring protection. Not only did English law recognise and not interfere with the right of such couples to live in a very close, loving and monogamous relationship, it accorded them also the benefit of marriage in all but name. Art 14 was not freestanding and depended on there being discrimination in the enjoyment of the rights and freedoms set forth elsewhere in the Convention. However, art 14 might apply even if there were no violation of a substantive Convention article if there had been discrimination and the facts of the case “fell within the ambit” of one or more of the substantive Convention rights. The failure to recognise the status of the petitioner and the first respondent as being validly married was outside the ambit of art 8. The recognition and treatment of a foreign marriage as a civil partnership only, did bring the facts of the petitioner’s situation within the ambit of art12, but the discriminatory treatment was legitimate and proportionate.
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