ABOUT THE AUTHOR: Richard Frimston TEP is a
Partner and Head of the Private Client team at Russell-Cooke LLP,
and Chair of the STEP EU Committee
Two years ago, I flagged up the issues of the effects of
marriage on property rights, private international law and the
proposed EU Regulation Rome IV.
In South Britain only, there is now the Marriage (Same Sex
Couples) Bill (HC Bill 126). There has been much discussion as
to the effects on religious organisations, but nothing on the
difficult private international law (PIL) issues involved. The Bill
proposes that in England and Wales, marriage of a same-sex couple
shall be lawful.
While, personally, I support all measures of equality, I am
concerned that the cross-border and EU issues arising from the
current drafting have not been addressed.
Some EU states, such as Spain and Portugal, have not introduced
registered partnerships at all. They permit marriage by both same-
and mixed-sex couples and usually recognise a same-sex registered
partnership as a marriage. Sweden and Norway have followed the
Dutch example. Denmark (but not Greenland or the Faroes) also did
so from 15 June 2012. The Republic of Ireland followed the UK and
introduced civil partnerships on 1 January 2011, with a three-month
registration period. The German and Dutch registered partnerships
have exactly the same matrimonial property regimes as marriage.
France is also debating same-sex marriage.
What are the PIL problems?
There are no current EU Regulations dealing with the recognition
of marriage or registered partnerships. The 1978 Hague
Convention XXVI has been ratified only by Australia,
Luxembourg and the Netherlands.
The rest of us, therefore, have our own conflicting PIL rules.
For most EU states, capacity to marry is governed by a citizen’s
personal law. In the UK and the Republic of Ireland, that is the
law of the domicile at the time of marriage. For most others, it
will be the law of citizenship.
In France, while it is not possible to register a same-sex
marriage, a foreign same-sex marriage is valid if valid in
accordance with the law of the nationality of each party. A Dutch
same-sex marriage is therefore valid in France if between two Dutch
nationals, but not if between a Dutch national and a French
national.
In states that have introduced same-sex marriage, it is usually
recognised as valid if one party is a national or if both are
habitually resident in the state that permits same-sex
marriage.
It is Rome IV that has shown the main differences
between registered partnerships and marriage.
Since only some states have registered partnerships, the only
law that can govern the partnership is that of the place of
registration. The law governing the property effects of marriage,
on the other hand, is usually independent of the place of marriage
and can be that of the common domicile, of nationality or of a
common residence.
Section 38 of the Family Law (Scotland) Act makes it
clear that the dual-domicile theory is in force in Scotland. The
Marriage (Same Sex Couples) Bill does not currently appear
to deal with any of these issues. If passed in its current form,
the effects would seem to be:
- Same-sex marriage celebrated anywhere in the world will be
recognised in South Britain as a valid marriage if each party is
domiciled at the time of the marriage in a state that also
recognises same-sex marriage, but not otherwise. Will this apply to
marriages celebrated before the Bill is enacted? What will be the
effect of a change of domicile in the interim? Such marriages will
still be recognised as civil partnerships in Scotland and in
Northern Ireland.
- Existing civil partnerships registered in South Britain could
be converted to marriages, but only if each party is domiciled in a
state that recognises same-sex marriage. Civil partnerships
registered outside South Britain (including overseas relationships,
but not foreign same-sex marriages) cannot be converted to
marriage, even if celebrated between two people domiciled in South
Britain.
Most of my clients haven’t got a clue what domicile means. If
the registrar asks where a bride or groom is domiciled, and the
answer is Scotland or Poland, what is the registrar to do? Proceed
with a marriage that may not be valid or tell them to come back
later?
Now that almost 40 per cent of people in London were born
outside the UK, isn’t it time for the UK to ditch domicile and use
habitual residence as the personal connecting factor?
There is no sign that these issues are going to be resolved any
time soon. PIL is ignored at one’s peril.