The arrival of same-sex marriage in England & Wales


Author: Teresa Cullen


As from 29 March 2014 a new law in England and Wales will recognise same-sex weddings. It allows same-sex couples to marry and for that marriage to have the same effect as it has in relation to opposite-sex couples. Scotland and Northern Ireland will not be included under the terms of this legislation. Scotland passed a bill approving same-sex marriage in February 2014 and it is expected that this will become law during the course of this year. Northern Ireland will stand alone.

England and Wales join 15 countries including Spain, Canada, Argentina, New Zealand and Brazil, along with several states in the USA and some in Mexico, in recognising same-sex marriages. Notice had to be given at the beginning of March in order for marriages to take place on the first available day. In Westminster alone three weddings will take place at the stroke of midnight on 28 March 2014. Another wedding, between Benjamin Till and Nathan Taylor, will be filmed as a TV musical to be broadcast on Channel 4. Sandi Toksvig and her partner will renew their vows at what is described as a “mass singalong” at London’s Royal Festival Hall on that Saturday.

Leaving aside the celebrations, the effect of the law needs to be taken into account by same-sex couples considering marriage. Questions still remain in connection with whether the same-sex marriages will be recognised under foreign law. It is thought likely that countries which also recognise same-sex marriage will do so, but unlikely that countries which render these marriages unlawful or are silent on the issue will do so. If the marriage breaks down, the English courts will have the same jurisdiction as they do with opposite-sex couples. The same-sex spouses will be able to make an application to the court to resolve any financial issues between them. There is also a fall-back provision for the English courts to determine such financial issues, applying English law, where no other court abroad has jurisdiction.

Same-sex couples getting married need to reconsider their Wills, as although the Act allowing same-sex marriages to come into effect amends legislation so that a spouse and husband and wife can be interpreted to include same-sex couples, private documents are not automatically amended. Their Wills therefore may need to be revisited.

It also raises the question of whether same-sex couples should consider pre‑ or post-nuptial agreements. To a large extent the issues relating to pre-nuptial agreements are the same for same-sex and opposite-sex couples. There are also issues which may come into play regarding tax relief, pension entitlement and immigration rights.

These are serious issues which need to be taken into account, and which should not be overlooked amid the media frenzy and the celebrations.

Nonetheless, as has been widely commented upon, it was never accepted that the ability for same-sex couples to enter into a civil partnership (from December 2005) resulted in equality with opposite-sex couples due to the differences which remained. Could it be that England is moving closer to treating everyone as equal and not perpetuating the idea that “some are more equal than others”?

Teresa Cullen, Partner, Fladgate LLP (tcullen@fladgate.com)

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