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Same-sex 'Marriages'

© Jolyon Maugham, Barrister

A tantalising array of tax planning opportunities are available to married couples. Assuming that the game is worth the candle, Jolyon Maugham, barrister at 11 New Square, Lincoln's Inn, London, examines whether same sex couples can avail themselves of those advantages.

"Marriage"

"Marriage," in the words of Lord Penzance, "is the voluntary union for life of one man and one woman, to the exclusion of all others": see Hyde v Hyde (1866) LR 1 P&D 130, 135.

As a matter of English law, this statement is as true now as it was in 1866.

Section 11(c) of the Matrimonial Causes Act 1973 provides that a marriage shall be void if the parties are not respectively male and female.

However, s.11(c) gives way to any rule of private international law which stipulates that the validity of a marriage is to be governed by the law of a country outside England and Wales: see section 14. There may, therefore, be a broomstick over which same sex couples can jump in order to secure in England and Wales the tax advantages which flow from marriage.

Private international law

The rules of private international law comprise a subset of the body of law known as conflict of laws which exists to deal with cases having a foreign element. In a marriage context, the rules enable a domestic court to rule on the validity of a marriage celebrated abroad and/or between spouses who may be precluded from marriage by their personal law.

There are two limbs to be satisfied before an English court will recognise a same sex marriage: first, the marriage ceremony must satisfy the formal requirements imposed by the jurisdiction in which it occurred (the "lex loci celebrationis"); and, second, the putative spouse must have capacity to marry his or her same sex partner under his or her personal law ("capacity").

Lex loci celebrationis

The question, for present purposes, is not observing the "lex" - the legal requirements of a marriage ceremony - but rather finding the appropriate "loci" - a jurisdiction which recognises same sex marriages. There are, as the reader will be aware, a number of European jurisdictions - the Netherlands, Denmark or Sweden, for example - which afford de facto marriage status to relationships entered into between same sex couples. Gay couples can, by way of civil ceremony, enter into the somewhat prosaically entitled 'registered partnership' and thereby be afforded the same taxation rights as married couples.

However, this solution poses rather more questions than it answers. First, whether an English court would recognise - and give legal effect to - a registered partnership. Second, the route is usually open only to couples at least one of whom has a connection to the jurisdiction. The Danish Act of Registration of Partnerships of 1 October 1989, for example, requires that at least one of the partners reside permanently in Denmark and hold Danish citizenship.

Neither difficulty is necessarily insuperable. According to Kenneth Norrie ((1994) ICLQ 771 if, say, a registered partnership recognised in Danish law creates a status in Danish law, that status ought to be recognised as a matter of English law. Moreover, the legal consequences which flow therefrom in Danish law (including tax advantages) ought to be made available as a matter of English law. So far as the residency/citizenship requirement is concerned, it is at least arguable that this is unenforceable as comprising discrimination on the grounds of nationality contrary to Articles 13, 39 and 43 of the EC Treaty as amended by the Treaty of Amsterdam. Finally, it should be noted that Sweden has introduced an amendment to its registered partnership legislation relaxing the residency/citizenship requirement. Same sex couples resident in Sweden for at least two years will have the right to register their partnerships whatever their nationality.

However, all of these problems are side-stepped if a jurisdiction is identified which permits same sex couples to marry - not merely form a relationship equivalent to marriage. The writer is not aware of any country which currently permits marriages between homosexual couples. However, there is a series of measures afoot in the international community to remedy this lacuna. Notable amongst these is the Bill introduced by the Dutch Government in June of this year to open up marriage to same sex partners. The Bill, if adopted, would likely be effective from 2001. It is also worth noting that the Supreme Court of Vermont has, in the case of Baker v The State of Vermont, heard oral argument and reserved judgment on the question whether state law permits same-sex marriage.

Capacity

The second limb to be satisfied before an English court will recognise a same sex marriage conducted under the laws of another state is that both parties must possess the 'capacity' to enter into that marriage.

Until relatively recently, the orthodox position was that capacity was governed by the law of each of the spouse's antenuptial domicile. An English-domiciled gay couple's capacity to marry would be determined by the laws of England. An English court would not, therefore, recognise their marriage, notwithstanding that it was celebrated in accordance with the formalities prescribed by the foreign law. Nor would it suffice if one spouse did have capacity; strict application of the rule required that both parties possess the capacity to marry.

However, it is possible to discern in the recent case law a policy of favouring the validity of marriage. In the case of Lawrence v Lawrence [1985] Fam 106, for example, Anthony Lincoln J looked to whether the parties possessed capacity under the law of the country where they intended to establish their matrimonial home. Other possibilities, mooted in Dicey & Morris on the Conflict of Laws, include recognising a marriage as valid where it complies with the law of domicile of either party or where it is valid according to the laws of that country with which the marriage has its most real and substantial connection. Indeed, in the Lawrence case, Sir David Cairns, sitting in the Court of Appeal expressed the view that a marriage should be upheld if valid under either the dual domicile or intended matrimonial home theory.

It is difficult - or at least difficult for the present author - to assess the respective strengths of these competing theses. However, it is clear that a marriage celebrated by a gay English couple holidaying in Vermont would not give rise to legal consequences which an English court would recognise. At the very least, the couple would have to have, at the date of the marriage, a fully formed intention to set up their marital home in the 'Green Mountain State.'

Public Policy

Clearly it will be no easy task to satisfy the formal requirements identified above. Moreover, it must be recognised that English courts retain a residual discretion not to recognise a marriage where such would be repugnant to public policy. It is necessary to look at the question whether such would be likely to preclude legal recognition of a same sex marriage.

The answer appears to this author to lie quite clearly in the negative. The most powerful indication comes from the terms of the Matrimonial Causes Act 1973. Section 14 quite clearly cognizes the possibility that a marriage between a couple of the same sex could be valid in English law where the rules of private international law stipulate that its validity is to be dictated by foreign law - and foreign law finds it valid. The section does not provide, as perhaps it might have done, that an English court could not recognise a foreign same sex marriage - rather it leaves the matter to the rules of private international law. This is a clear indicia as to the intention of Parliament and one which, in the opinion of the author, a court would be reluctant to undermine.

It is also worth noting that in a number of cases - including the well-known case of Nabi v Heaton (Inspector of Taxes) [1983] STC 344 - English courts have recognised marriages which offend against pure domestic notions of propriety. In that case, the marriage was a bigamous one. The point which emerges clearly from these decisions is that courts are to use their residual discretion with "extreme reserve": see Vervaeke v Smith [1983] 1 AC 145 per Lord Simon 164.

European Aspects

It does not appear that any real assistance can be derived from the European Convention on Human Rights or the European Treaty.

In 1986 the Commission (effectively the gatekeeper to the European Court of Human Rights) held in S v United Kingdom 47 DR 274 (1986) that a "stable homosexual relationship between two men does not fall within the scope of the right to respect for family life ensured by Article 8 of the Convention." Moreover, the discrimination on the grounds of sexual orientation represented by the non-availability of, in that case, housing benefits to gay couples was, the Commission found, objectively justifiable by reason of the need to protect family life. Notwithstanding that this second holding appears to be a non-sequitur, both holdings apparently remain good law.

It is possible to discern in the case law of both the European Court of Justice and the Court of First Instance a similar disinclination to interfere with national law in areas as sensitive as this one. In its recent decision in Grant v South West Trains [1998] ECR I-621 the European Court, to the surprise of many commentators, held that discrimination on the basis of sexual orientation did not amount to sexual discrimination. Moreover, in a recent decision (Case T-264/97 D v Commission) the Court of First Instance refused to give to a Swedish national in a registered partnership the employment benefits which would follow if he were married to his partner. This conclusion must raise a question as to the veracity of the opinion expressed by Norrie (see above) that, as a matter of private international law, a registered partnership gives rise to an international status in the same way as does marriage.

The Human Rights Act

For completeness' sake, it should be mentioned that implementation of the Human Rights Act 1998 is unlikely to have any real impact on the instant issue. The principal effect of the Act is to provide that courts must read primary and secondary legislation, so far as possible, in a way which is compatible with the European Convention on Human Rights. If, as is the consequence of the decision in S v United Kingdom (see above), the Convention does not protect a right to same sex marriage, it is difficult to see how the Human Rights Act can be said to have any direct impact upon the question.

Conclusion

Clearly there are a number of hurdles to be cleared before an English court will enable married or registered same sex partners to, for example, leave one another assets free of inheritance tax. None of these is free from difficulty and there are one or two which may prove a step too far - at least for the Special or General Commissioners. However, it is submitted that you don't need a weatherman to know which way this wind is blowing. Tax specialists ought to be advising wealthy homosexual clients that it is, at the very least, possible that an English court, confronted with a same sex marriage, could afford to the spouses the tax advantages previously only available to the paradigmatic married couple.

August 1999