FAMILY & MATRIMONIAL
Marriage Equality in Northern Ireland: Are We There Yet?
Same sex marriage was legally recognised here on 13th January 2020 by virtue of the Marriage (Same Sex Couples) and Civil Partnership (Opposite Sex Couples) (Northern Ireland) Regulations 2019 with the first same sex marriage taking place in Northern Ireland on the 11th February. This appeared at last to bring the law in Northern Ireland into line with the rest of the UK and the Republic of Ireland but did it?
Social media headlines recently highlighted the rectification of one of the remaining differences with the news that, from 1st September 2020, same sex couples getting married here have the right to choose either a religious or a civil ceremony (as opposed to just a civil ceremony as had been the case since the introduction of same sex marriage in this jurisdiction). While the enabling regulations, the Marriage and Civil Partnership (Northern Ireland) Regulations 2020, provide exemption for religious bodies that do not want to conduct same sex religious ceremonies (regulation 11), they also contain protection so that religious bodies and officiants cannot unlawfully discriminate against sex same couples if they refuse to marry them (Regulation 14). Such protection also extends to church halls and other buildings owned by a church. This change was viewed as important in marriage equality particularly for many couples who were previously legally prevented from marrying in their own church.
Same sex marriage law has an interesting history in Northern Ireland. The issue had been debated and voted on no less than five times by the Northern Ireland Assembly between 2012 and 2015 without progress. (Although the fifth vote was in favour by a majority of one, this was then blocked in an unusual way by use of the ‘Petition of Concern’ mechanism introduced under the Belfast Agreement). Northern Ireland was seen as long out of step with the rest of the UK where same sex marriage had been introduced in 2014 and with the Republic of Ireland where it had been brought into force in 2015.
Due to the lack of movement and the fact that this was unlikely to change in the absence of the Assembly at Stormont at the time, Parliament, in 2019, stepped in and announced that it would introduce legislation similar to that of our neighbouring jurisdictions if our local government was not restored or did not act. Same Sex marriage was therefore given the push into law here by Parliament at Westminster rather than by local government.
Same sex couples in Northern Ireland could previously enter into a civil partnership under the Civil Partnership Act 2004. This gave them rights and responsibilities similar to (but not equal to) those of a marriage. Ironically, Northern Ireland appeared to lead the way on civil partnerships. The first civil partnership was held in Northern Ireland on the 19th December 2005, before the rest of the U.K and the South of Ireland, yet for five or six years until January 2020, it was the only one of these jurisdictions where same sex marriage was not legal.
Additionally, prior to January 2020, if a same sex couple married legally elsewhere in the UK, their marriage was not recognised in Northern Ireland except as a civil partnership (a “deemed civil partnership”). As one couple argued in an unsuccessful legal challenge (Close’s application 2017), this led to the situation where a couple who married in England were stripped of their lawful marriage at home in Northern Ireland with their rights “returning and disappearing” as they crossed state lines! This was rectified in January 2020, when same sex marriage was introduced here, under the same legislation. Same sex marriages taking place elsewhere are now legally recognised in Northern Ireland.
Another difficulty prior to the changes to the legislation this year was in respect of divorce for same sex couples in Northern Ireland. We acted for a client who had lawfully married in England and, upon the breakdown of the marriage, had returned to Northern Ireland, where our client had lived prior to the marriage. Our client wanted a “divorce”. We had to advise our client that, unlike opposite sex couples in the same circumstances, our client could not get a divorce here. Our client considered going back to England to obtain the divorce. However, this was significant procedurally: had our client gone back to England and obtained the divorce there, or had our client agreed to the other Party to the marriage applying for the divorce in England, our client’s ancillary relief proceedings (Court proceedings to resolve the financial issues) would have been located in the English Courts as Court proceedings in relation to matrimonial finances almost always must take place in the jurisdiction where the divorce is granted. Our client would have had the expense and inconvenience of travelling to England for the Court reviews and hearing. To avoid this, and to ensure that any Court proceedings would be held in Northern Ireland where our client had now settled, our client was required to obtain a dissolution of a “deemed civil partnership” rather than a divorce. As a result of the changes in the law, this has been rectified. Couples who married outside Northern Ireland before same sex marriage was introduced will now have their marriages recognised here.
However, on the issue of marriage equality, we were still not quite there. A significant difference remaining was that same sex couples living here who entered into a civil partnership (because they could not marry here) could not convert their civil partnership into a marriage even though this was possible in the rest of the UK. The Northern Ireland Office recently ran a six week public consultation on this and it has been announced that regulations will come into force on 7th December 2020 allowing civil partnerships to be converted into marriage. Opposite sex couples will also be able to convert an existing marriage into a civil partnership.
This will finally bring our law into line with our neighbouring jurisdictions. Welcoming the news of the marriage conversion rights, Amnesty International said that this move will mark the last stage in achieving full marriage equality in Northern Ireland.
If you require advice on any aspect of same sex cohabitation, civil partnerships or marriage, please contact Clare Lenaghan or Louise McNally at our Matrimonial and Family Department on Belfast 90200050.
