High Court rules lesbian marriage in Canada is not a legal union in the UK

Canada - UK lesbian marriage law


The High Court has ruled that lesbian couple Celia Kitzinger and Sue Wilkinson, who were lawfully married in Canada in 2003, should not have their union recognised in Britain.

Martin Loxley, Head of Family Law at national law firm Irwin Mitchell, said, "As Parliament has so recently visited the whole area of same sex relationships in the Civil Partnership Act 2004 and specifically elected not to call them "marriages", it was highly unlikely that the courts would have been tempted to take it on themselves to extend this further and recognise a same sex "marriage" entered into overseas, as a "marriage" in this jurisdiction."

They were married in Vancouver in 2003, where same-sex marriages are legal. But despite their appeal to the President of the High Court Family Division, Sir Mark Potter, he has declared their marriage is not one that can be recognised in Britain.

For an overseas marriage to be recognised in the UK it must be shown that the marriage was legal in the country in which it was entered into, and that each party had capacity to enter into the marriage.

The couple argued that the law as it stands is discriminatory in not confering marital status on same sex partnerships - arguing that this was incompatible with Human Rights legislation.

Giving his ruling in London, Sir Mark Potter, President of the High Court Family Division, emphasised that the common law definition of marriage under English law was: "The voluntary union for life of one man and one woman, to the exclusion of all others."

Lesbian marriage and family law

It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, 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 in which both maternal and paternal influences are available in respect of their nurture and upbringing.

"The belief that this form of relationship is the one which best encourages stability in a well-regulated society is not a disreputable or outmoded notion based upon ideas of exclusivity, marginalisation, disapproval or discrimination against homosexuals or any other persons who by reason of their sexual orientation or for other reasons prefer to form a same-sex union."

He continued that lasting single-sex relationships were "in no way inferior" and English law does not suggest they are, recognising them under the name of civil partnership.

Lesbian marriage seen as "different"

"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 ... they are indeed different."
The application was in his view one which did not so much seek to uphold the law but to try and secure change of it. He commented that he found it hard to see that public interest required such a change so soon after the passage of he Civil Partnership Act 2004, and the general welcome that it received.

If you have been affected by any family or partnership legal issues, our solicitors may be able to help. Visit our family law section.