Friday 24th June 2011 became a landmark day when New York became the sixth U.S. state to allow gay marriage. For any UK residents thinking of tying the knot in Manhattan, or Californians planning married life in the UK, it’s a good time to look at what the status of a US same-sex marriage would be in the UK.
In the US, whilst same-sex marriage is not a Federal concept, individual states have a clear position on the issue. In addition to the 6 states now allowing same-sex marriage, another 4 have approved same-sex civil unions. Others have a neutral position, i.e. they are not among the 39 states which expressly prohibit same-sex marriage.
In the UK a clear distinction remains between civil partnership and marriage. A civil partnership is exclusively available to two people of the same-sex, whilst any marriage will be void on the grounds that the parties to it are not respectively male and female. In most respects the legal effect of a marriage and a civil partnership are the same, but it remains a significant and fundamental difference that a civil partnership cannot be formed in religious premises. The desire to have a religious ceremony might be one reason for which a couple choose to make their vows abroad in a country or State which does allow religious same-sex ceremonies.
If a same-sex couple choose to register their relationship abroad in a country or State which recognises gay marriage, on arrival in the UK they will still be treated as civil partners. The definition of civil partnership includes a list of ‘overseas relationships’ which encompasses civil unions and marriages: there is no distinction between the status in the UK of a same sex marriage which was registered in Massachusetts or a same sex civil union registered in New Zealand.
A same-sex relationship registered abroad, whether marital or civil will, however, be treated as a valid civil partnership in the UK provided that the key criteria are met. Those are that
- The relationship is registered abroad, and
- Neither partner was already a civil partner or married at the time of registration
- Both parties had capacity to enter into the union, and
- It doesn’t offend the English laws on ‘prohibited degrees of relationship’ (i.e. union with family members)
- It was properly registered according to the law of the country where it was registered,
- Either, it appears on the list of ‘overseas relationships’ in Appendix 20 to the Civil Partnership Act 2004, which is updated from time to time,
- It meets the’ general conditions ‘ which are that
- The law of the country where it was registered doesn’t allow registration where either party was already a civil partner or married at the time of registration
- The relationship is registered indefinitely in the country of registration
- As a result of registration, the parties are treated in the country of registration as a couple or as married
Therefore, it is essential to check with a local lawyer or official what the laws around civil partnership or same sex marriage in the destination country are before travel to make sure that it will be recognised here if the relationship and the country in question are not on the list of ‘overseas relationships’ attached to the Civil Partnership Act. And, whenever marrying or entering into a civil union abroad, it is essential to check that all of the necessary formalities of that state or country have been complied with. Separate specific consideration also apply if either party has changed sex.
Author: Marisa Allman, Barrister at Zenith Chambers