Same-sex marriage in Northern Ireland again: Close

And here’s one I should have made much earlier…

In a brief judgment in Close & Ors, Re Judicial Review [2017] NIQB 79, delivered in August, O’Hara J dismissed a challenge to Article 6 of the Marriage (Northern Ireland) Order 2003 by two same-sex couples who had entered into civil partnerships in 2005. The applicants contended that the effect of the Convention, as incorporated into the law of the United Kingdom by the Human Rights Act 1998, was that the continued denial of same-sex marriage in Northern Ireland was unlawful [7].

O’Hara J noted that the Strasbourg Court had not imposed an obligation on states parties to introduce same-sex marriage; though the ECtHR required some legal recognition of same-sex relationships, that recognition already existed in Northern Ireland in the form of the civil partnership [8]. In Schalk and Kopf v Austria [2010] ECHR 1996, the ECtHR had held that a provision of the Austrian Civil Code under which marriage had to be between persons of the opposite sex was not contrary to Article 12 ECHR (right to marry and to found a family) and that changes in attitudes and social policy did not lead to a conclusion that a “living instrument” interpretation of the Convention was justified in that case or would lead to a conclusion that Article 12 embraced same-sex marriage – on which there was no European consensus [9]. The Grand Chamber had considered the matter again in the context of Article 12 in Hämäläinen v Finland [2014] ECHR 787 and had again concluded that Article 12 did not oblige states parties to introduce same-sex marriage [10] – a judgment confirmed in Oliari v Italy [2015] ECHR 716 [11]. In both Schalk and Kopf and Hämäläinen the ECtHR had also rejected the proposition that the absence of same-sex marriage violated Article 8 (private and family life) [12].

If there was a trend, it was undoubtedly towards recognition of same-sex marriage in more and more countries but

“there is no sign whatever of the Strasbourg Court moving in that direction. It has had three opportunities to consider the issue during this decade and has turned its face firmly against it” [15].

If equality in marriage was to be achieved for same-sex couples,

“it will have to be achieved through the Assembly. I hope that when the Assembly is next asked to consider the issue, those who have the responsibility of voting will read the evidence in this case and in Re X [a parallel set of circumstances in which the parties had been granted anonymity] in order to understand more completely the issue before them” [17].

In its initial form, the judicial review had also challenged the use of the petition of concern in the Assembly; however, that issue was not pursued [3].

Cite this article as: Frank Cranmer, "Same-sex marriage in Northern Ireland again: Close" in Law & Religion UK, 27 December 2017,

8 thoughts on “Same-sex marriage in Northern Ireland again: Close

  1. Interesting that two heterosexual men who are friends married last week in the Irish Republic in order to avoid inheritance tax – possible due to the unequal provisions governing “equal marriage”.

    Surely all adults – siblings for example – should be permitted to enter one consecutive tax-avoiding relationship.

    • I believe the question of whether siblings can enter into a civil partnership to avoid tax in the UK has already been settled – due, if I recall correctly, to the legislation (illogically) replicating the rules against consanguinity that exist for marriage. But I don’t think there is anything preventing friends from using these provisions in that way since there is no requirement for consummation in civil partnership.

      • You’re right: the case went all the way to the Grand Chamber at Strasbourg: see Burden v United Kingdom [2008] ECHR 357. The GC held by fifteen votes to two that there had been no violation of Article 14 of the Convention (discrimination) taken in conjunction with Article 1 of Protocol No. 1 (peaceful enjoyment of possessions).

        PS: Oliver who, please? I should have binned your comment on the grounds that – though uncontroversial – it’s anonymous.

      • No definitions concerning consummation and adultery could be arrived at thus swerving the mirage of “equal marriage” but decisions reached prevent siblings and others from benefiting from inheritance tax exemption.

  2. Pingback: The Northern Irish judicial approach to same sex marriage – of relevance to the Bermudian debate… – Bermuda Legal

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