10 years of same-sex marriage

As we approach the ten-year anniversary of the first same-sex marriage in England and Wales, it’s an opportunity to reflect on some of the most common questions we as family lawyers get asked from same-sex couples about the legal status of their marriage. 

The history of civil partnerships and same-sex marriage in England and Wales

The Civil Partnership Act 2004 came into force on 5 December 2005, enabling same-sex couples to obtain legal recognition of their relationship for the first time. Though civil partnerships operate in a very similar way to marriage and give equivalent legal rights and protections, many same-sex couples wanted to have the opportunity to actually marry their partner. LGBTQ+ activists continued to lobby for the right to marry, as it was felt that this would give true equality.

The Marriage (Same Sex Couples) Act 2013 was passed on 17 July 2013, with the first newly permitted same-sex marriages taking place on Saturday 29 March 2014. In addition to enabling same-sex couples to get married, it also enabled conversion of civil partnerships into marriages, which couples can choose to do with or without an additional ceremony. The legislative change meant that foreign same-sex marriages (as long as they were properly performed in the country in which the marriage took place) became recognised in England & Wales. Whilst allowing both civil and religious marriage ceremonies, the Act does not force religious organisations or their officials to marry same-sex couples, enshrining the right to religious freedom.

Over the past 10 years since being legalised, more than 50,000 same-sex marriages have taken place. Society’s attitude towards equal marriage has continued to shift, with 78% of Brits now in support of it, compared with only 42% back in 2011.

What is the position in Scotland and Northern Ireland?

Scotland legalised same-sex marriage in a very similar timeframe to England & Wales, with the first recognised under Scottish law on 16 December 2014. The position in Northern Ireland remained distinct from the rest of the United Kingdom until 13 January 2020. The Northern Ireland Assembly had previously held four unsuccessful votes on the issue since 2012.

Global recognition of civil partnerships and same-sex marriage

It would be remiss to discuss the hard-fought achievements we have in the UK without acknowledging the challenges that same-sex couples face globally. At the time of this article, only 38 of 175 recognised countries have legalised same-sex marriage, either through enacting legislation or through decisions of the courts. To put that number into context, homosexuality is a criminal offence in some 68 countries and carries the death penalty in 11. The number of countries with no protections against discrimination and hate crime is even higher.

When it comes to the legal recognition of same-sex unions around the world, it’s important that a distinction is made between same-sex marriage and civil partnerships. Whereas marriage has a broadly universal definition and often carries the same rights globally, the rights afforded to civil partners may differ wildly from one country to the next. Sometimes these rights may differ from one state or territory to another.

For those who are citizens of or were born in England or Wales and don’t intend to live abroad with their partner, this won’t be an issue. However, for couples who were born overseas and/or intend to live abroad, legal recognition of their relationship and accompanying rights (which may include pensions, property ownership, inheritance, immigration, next of kin notifications) may change dramatically.

Common issues we come across with same-sex marriages as family lawyers

Is my same-sex marriage valid?

So, we know that same-sex marriage is lawful in England and Wales.  And we also know that same-sex marriage is also lawful in many other countries such as Iceland, Brazil and Canada. However, even where same-sex marriage is lawful, it pays to pay attention to the detail.  All countries will have rules about how to create a valid same-sex marriage and those rules will differ between countries. If you live in England but are getting married in another country, there may be residency or nationality requirements you need to meet, a waiting period or even a blood test.  Always check what requirements you need to fulfil. Failure to comply with them could mean your marriage is not legal. 

Is my overseas same-sex marriage valid or recognised in England?

In England and Wales, foreign same-sex marriages will be recognised provided that the marriage has been properly performed in the country it took place and the couple had the capacity to marry each other. This can be quite complex but the reality is many foreign same-sex marriages will be recognised here. Early legal advice from specialist family lawyers can be really beneficial. 

In those cases where it’s unclear if the marriage has been properly performed or where there are other complicating features, the court will often focus on both the facts of the case and the behaviour of the couple in order to work out whether or not the marriage can be recognised.

Having your same-sex marriage recognised here is important. It will open up your entitlement to a range of benefits such as pensions and being treated as your spouse’s next of kin. It will also mean you can divorce here, if your relationship breaks down.

Is my English same-sex marriage valid or recognised in other countries?  

There are no global treaties for the mutual recognition of same-sex marriages between countries. This means you need to check each country individually to see whether or not your English same-sex marriage is recognised. 

Do not assume that just because a country does not allow same-sex marriage that your marriage will not be recognised there. Israel, a country which does not permit same-sex marriage, does still recognise foreign same-sex marriages provided that the personal laws (i.e the law of the country a person is a national of or is domiciled in) of each of the parties allows same-sex marriage. 

However, in other countries, your same-sex marriage could be treated as a civil or domestic partnership or union and that may result in a “downgrading” of your legal rights when compared to your rights in England. 

Can I divorce in England?

You can get divorced in England and Wales provided that:

• you’ve been married for over a year; and
• your relationship has permanently broken down; and
• your marriage is legally recognised in England and Wales.

You also need to meet at least one of the “jurisdiction” criteria.  These criteria essentially check that you have a connection with England and Wales and that the English courts have the power to deal with your divorce.

For international families who have connections with more than one country, deciding where to divorce and where to sort out arrangements for their finances and any children, is really important. Just as different countries have different requirements to create a valid marriage, countries’ approaches to divorce, financial settlements and arrangements for children can vary widely. 

Same-sex marriage represents not just a symbol of love and commitment between a couple, but also a significant legal milestone. Although we see more countries embracing marriage equality, it remains the case that it is essential for international same-sex couples to take legal advice either to check their marriage is valid and recognised here or to check that their marriage is valid and recognised in other countries.