FAMILY



Family law - discrimination - human rights - civil partnerships - discrimination - marital status - overseas marriages

Susan Wilkinson (petitioner) v (1) Celia Kitzinger (2) attorney-general (respondents) & Lord Chancellor (intervener): Fam Div (President Sir Mark Potter): 31 July 2006



The petitioner (W) applied for a declaration as to her marital status under section 55 of the Family Law Act 1986.



W and the first respondent, who were both female and domiciled in the UK, had married under the law of British Columbia in Canada, which recognised as valid marriages between persons of the same sex.



W, who had issued the instant proceedings in advance of the implementation of the Civil Partnership Act 2004, sought a declaration that the marriage was a valid marriage at its inception and, if necessary, a declaration of incompatibility under section 4 of the Human Rights Act 1998 in relation to section 11(c) of the Matrimonial Causes Act 1973.



W argued that the provisions of the 1973 and 2004 Acts, which precluded recognition of a marriage between persons of the same sex, amounted to a violation of her rights under articles 8, 12 and 14 of the European Convention on Human Rights and asked the court to give effect to section 11(c) of the 1973 Act, and section 1(1)(b) and sections 212 to 218 of the 2004 Act, so as to recognise same-sex marriages, lawfully effected in other jurisdictions, as valid in English law; alternatively, the court should develop the common law so as to recognise her Canadian marriage as a marriage in English law; alternatively, the provisions of the 1973 Act and the 2004 Act were incompatible with her convention rights.



Held, W'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 on areas of such controversy (B v United Kingdom (36536/02) (2006) 42 EHRR 11 considered).



Parliament had closely examined the issue of same-sex marriages and, by the 2004 Act, it had decided that there should be statutory recognition of a status and relationship closely modelled on that of marriage, which made available to civil partners essentially every material right and responsibility arising from marriage, with the exception of the form of ceremony and the actual name and status of marriage. Parliament had ostensibly passed the 2004 Act, not because it felt obliged to comply with European law or rulings, but because it elected to do so as a policy choice.



By withholding from same-sex partners the actual title and status of marriage, Parliament had declined to alter the deep-rooted and almost universal recognition of marriage as a relationship between a man and 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 that European jurisprudence regarded them as requiring protection. Neither article 12 nor article 8 by themselves guaranteed W the right to have her same-sex marriage recognised as having the status of a marriage in English law, nor did the facts of her case demonstrate that those articles had been violated (Secretary of State for Work and Pensions v M (2006) UKHL 11, (2006) 2 AC 91 applied).



Parliament had enacted the 2004 Act to accord same-sex relationships all the rights, responsibilities, benefits and advantages of civil marriage save the name, and to remove the legal, social and economic disadvantages suffered by same-sex couples. To the extent that by reason of that distinction it discriminated against same-sex partners, that discrimination had a legitimate aim, was reasonable and proportionate, and fell within the margin of appreciation accorded to convention states. When articles 8 and 12 were read in combination with article 14, it was not shown there had been a breach of the non-discrimination guarantee in article 14.



The unambiguous statutory wording of section 11(c) of the 1973 Act reflected the common law rule and it was not necessary to develop the common law. The provisions of English law were not incompatible with the convention.



Petition dismissed.



Karon Monaghan, Ruth Kirby (instructed by Liberty) for the petitioner; the first respondent in person; Helen Mountfield (instructed by Treasury Solicitor) for the second respondent.