From England (to Northern Ireland) with love

northern-ireland-flagThe High Court in Belfast will sit on Monday 9 and 10th November to hear a challenge by a same sex couple now living in Northern Ireland who seek recognition of their English marriage. The current legal dispensation in the Province is that an English same sex marriage is recognised as a civil partnership in Northern Ireland.

The Petition is resisted by the Attorney General and government of Northern Ireland and the (UK) Government Equalities Office (which reports to Nicky Morgan, the Minister for Women and Equalities). It is anticipated that Judgment will be reserved.

The case opens only a week after the Northern Ireland Assembly voted for the first time in favour of legislating for same sex marriage in the six counties. However, the vote was the subject of a petition of concern and it therefore failed as it failed to attract sufficient Unionist support. Opinion polls in the North of Ireland show support running as high as 68% in support of the introduction of same sex marriage.

This month will also see the coming into force of the Marriage Act 2015 in the Republic of Ireland after the referendum approved an amendment to the constitution allowing same sex marriage in the South in May 2015. One of the provisions of the Act will end the recognition of civil partnerships from overseas – thereby raising the stakes for same sex couples in the North.

In the case of Re X (the names are the subject of an Anonymity Order), the petitioners want their marriage recognised as such in the North of Ireland.

The problem has its origin in the Marriage (Same Sex Couples) Act 2013. Marriage is a devolved matter in the Northern Ireland.

The Stormont Assembly passed a Legislative Consent Motion permitting the parliament at Westminster to legislate for Same Sex marriages entered into in England and Wales to be recognised as civil partners in Northern Ireland. This was done in Sch 2, Para 2 of the Act.

On the face of it Parliament at Westminster passed legislation which deliberately sought to ensure that a particular category of marriages entered into in England and Wales (those between same sex couples) were to be the subject of special treatment (i.e. non-recognition). In contrast to the historic situation in Wilkinson v Kitzinger this would appear to be an interference with family life.

Disentangling the justification for the Schedule and the LCM is not straightforward. At the relevant time a majority of the Northern Ireland Assembly did not support same sex marriage and the government at Westminster is likely to argue that by legislating as they did they were seeking to respect the devolved settlement in Northern Ireland (Civil Partnerships had been imposed in Northern Ireland in a period of direct rule) and they may feel that the regime they put in place avoided the possibility of same sex marriages being treated as void in the North of Ireland.

On 3 and 4th December 2015, the High Court in Belfast will hear a further challenge – this time to the refusal to allow same sex marriages to be registered in the North of Ireland.

Devolution is also likely to lead to further difficulties in the future. The Marriage and Civil Partnership (Scotland) Act 2014 makes no provision for the recognition of Scottish same sex marriages in Northern Ireland (and the Scottish Parliament would not have the authority to do so). If a same sex couple were to marry in Scotland and seek recognition of their marriage in Northern Ireland, this may well present a further serious challenge to legal order in the Province.

Martin Downs is a barrister at 1 Crown Office Row and the author of Same Sex Marriage and Civil Partnerships: The New Law (Jordan, 2014)

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