On 24 January the Culture Secretary, Maria Miller, presented the Bill to provide for same-sex marriage in England and Wales. The Long Title is as follows:
“Bill to make provision for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes”.
The Bill has been set down for second reading in the Commons on 5 February and we understand that it is to be published on 25 January.
Whilst we shall all look forward to seeing the whole text of the Bill when it is published tomorrow, it will be interesting to see what, if anything “consular functions in relation to marriage, [and] the marriage of armed forces personnel overseas” have to do with “(Same Sex Couples)”.
Consular officers are empowered to conduct civil marriage ceremonies for British citiznes overseas, so it follows that if registrars are to be so authorised in England and Wales, consular officers need to be similarly authorised outside the jurisdiction to secure parity of treatment.
Section 1 of the Marriage Act 1949 states that a man may not marry any of the persons listed in column 1 of Part 1 of Schedule 1 of the Act (who are all female relatives) and that a woman may not marry any of the persons listed in column 2 of Part 1 of the Schedule (who are all male relatives). Parts II and III of Schedule 1 are similar and set out the prohibited degrees of affinity to which slightly different rules apply.
Presumably (though I cannot find this set out in the Government’s consultation response regarding the Marriage (Same Sex Couples) Bill 2013, or in the explanatory note to the Bill, it is intended that same sex couples will not be allowed to marry persons within the prohibited degrees of consanguinity and affinity, and that there should be a clause saying that in relation to same sex couples the prohibition in section 1 of the Marriage Act 1949 shall apply to a marriage with a person of the same sex mentioned in either of the columns in Schedule 1 of the Act as it would apply if the person were of the opposite sex.
This is a serious omission from the Bill.
Clause 11(1) of the Bill states that “In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.
Does that imply that the prohibited degrees apply to same-sex couples mutatis mutandis as to opposite sex couples?
I think myself that section 11(1) can only be interpreted as defining the effects of a valid marriage, such as inheritance, rather than amending section 1 of the Marriage Act 1949. The “effect” of a marriage cannot be that there is no marriage. Section 1 of the Marriage Act needs to be amended, otherwise same sex marriages within the prohibited degrees will be valid. We cannot be sure that all judges would agree that it would be sufficiently absurd to justify them in judicial rewriting and some judges will just say that rewriting an Act of Parliament is a matter for Parliament.