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from Parenting & Family
High Court In UK Rules
Against Canadian Same-Sex Marriage
By William C. Duncan, NARTH Legal Committee Chairman
August 1, 2006 -
The High Court of England and Wales, Family Division, in a decision issued on July 31, 2006, held that a Canadian same-sex marriage need not be recognized as a marriage in England. This is the first decision in the case and appeals are likely to follow. The decision is online here:
http://www.bailii.org/ew/cases/EWHC/Fam/2006/2022.html.
WILKINSON V. ATTORNEY GENERAL
[2006] EWHC 2022 (Fam) England & Wales High Court of Justice, Family Division
July 31, 2006
An English same-sex couple contracted a marriage in Canada, returned to England and sought legal recognition of the marriage as a marriage rather than as a "Civil Partnership" as English law provides.
The court noted that English law defines marriage as the union of a man and a woman. Further, the question of the parties' capacity to marry is controlled by English law since they are domiciled there. The court held that Parliament did not intend to create a second-class institution for same-sex couples when it enacted the Civil Partnership Act (CPA). Rather, a civil partnership is "a parallel and equalizing institution." The Act also, however, demonstrates "support for the long established institution of marriage."
The court held that the guarantee of the right to marry in the European Convention on Human Rights refers to opposite-sex marriage. Additionally, the Convention right of family life "does not in the present state of Strasbourg law extend to childless same-sex couples." Here, the marriage law does not "intrude on or interfere with the private life" of a same-sex couple.
For the court, the necessity to protect family and private life does not mean a requirement that they be recognized as married. The court noted that withholding marriage recognition "does not criminalize, threaten, or prevent the observance" of the Convention rights of same-sex couples. In fact, the CPA "accords [same-sex couples] also the benefits of marriage in all but name."
The court noted that the majority of European nations, as well as England, "regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or 'nuclear family') in which both maternal and paternal influences are available in respect of their nurture and upbringing." The belief that marriage is the relationship that "best encourages stability in a well regulated society is not a disreputable or outmoded notion based on ideas of exclusivity, marginalization, disapproval or discrimination" against homosexuals. "Parliament has not called partnerships between persons of the same-sex marriage, not because they are considered inferior to the institution of marriage but because, as a matter of objective fact and common understanding, as well as under the present definition of marriage in English law, and by recognition in European jurisprudence, they are indeed different." Given these realities, the distinction between civil partnerships and marriages are legitimate.
The court distinguished same-sex marriage cases in Canada and South Africa because the same-sex couples involved in those cases did not have access to all of the benefits of marriage provided by the CPA. The court further held that even if the rule of recognition (that the law of the domicile applies) was inapplicable, English public policy would prevent recognition.
The plaintiffs in the case have been widely published, and they have an interesting article on their decision to marry available here:
http://www.lboro.ac.uk/departments/ss/depstaff/staff/
publications/wilkinson_pdfs/Kitz&Wilk.rebrandmarr.F&P.pdf
Additional Reading:
Parenting & Family
Updated: 8 February 2008
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