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High Court dismisses petition to recognise a same sex marriage

High Court dismisses petition to recognise a same sex marriage

On the 17th August 2017, judgment was handed down in Re X [2017], a case to which the PILS Project gave financial support. The High Court decided that the rights of a man who entered a same sex marriage in England had not been violated because such a marriage is only recognised as a civil partnership in Northern Ireland.

The applicant (referred to in the proceedings as X due to an anonymity order) lives and works in Northern Ireland. He married his husband in London in 2014. This marriage is legally recognised in England and Wales under the Marriage (Same Sex Couples) Act 2013. The only part of that Act that extends to Northern Ireland is Schedule 2. This schedule states that a same sex marriage is treated for the purposes of Northern Ireland law as a civil partnership.

X brought legal proceedings to seek a declaration that his marriage in London is a valid and legal marriage under Northern Irish law. He claimed that the failure to recognise the marriage breached his rights under the European Convention of Human Rights.

The Judge considered the consultations around the passing of the 2013 Act, as well as the domestic case law. The court paid particular attention to the recent judgments from the European Court of Human Rights (ECtHR) on these issues.  

The judge said “It is not at all difficult to understand how gay men and lesbians who have suffered discrimination, rejection and exclusion feel so strongly about the maintenance in Northern Ireland of the barrier to same sex marriage.   However, the judgment which I have to reach is not based on social policy but on the law.”

The European case law had revealed there is no consensus on the issue of same-sex marriage within the countries that have signed up to the Convention. The High Court concluded that the ECtHR has held that same-sex marriage is not a Convention right. Therefore while it is open to the Governments and Parliaments to provide for it, they are not obliged to do so, and whether they do so is a matter for them, not the Courts.

It also concluded that under the principle in the House of Lords case of Ullah, that save in special circumstances it must follow clear and constant jurisprudence of the Strasbourg Court. Therefore, it is not open to the High Court to give an interpretation of the Convention which is quite different from that of the ECtHR.

The High Court also observed that courts ought to be careful about how and when they intervene and respect the separation of powers.

Therefore, in all the circumstances, the Court dismissed the application.

There was also an application for Judicial Review that concerned same sex marriage This application  was also refused, with many of the reasons outlined in the Re X judgment being replicated in the determination on the Judicial Review.

 

For further commentary please click here for an article by the BBC.  An article by VIEW/digital can be read here.