On Wednesday, the Northern Ireland Court of Appeal handed down judgment in Re X [2020] NICA 21. The appellant and his husband, British citizens domiciled in Northern Ireland, were married in 2014 in England. On 19 December 2014, the appellant issued a petition pursuant to Article 31 of the Matrimonial and Family Proceedings (NI) Order 1989 seeking a declaration that his marriage in London was a valid and subsisting marriage under the law of Northern Ireland [1]. The Marriage (Same Sex Couples) Act 2013, however, provided that a same-sex marriage under the law of England and Wales was to be treated in Northern Ireland as a civil partnership so, in the alternative, he sought a declaration that the non-recognition of his marriage was incompatible with Articles 8, 9 or 12 ECHR either alone or read in conjunction with Article 14 ECHR [2]. He was unsuccessful in the High Court.

On appeal, Morgan LCJ dismissed the challenge to the applicant’s standing. He was satisfied that the appellant was entitled to pursue a claim for a declaration in accordance with Article 31 of the 1989 Order “and on any view would be a person adversely affected for the purpose of challenging the compatibility of the relevant statutory provision with the ECHR”, notwithstanding that his notice was significantly out of time [13].

The Court had already considered the issue of whether the prohibition on same-sex marriage in Northern Ireland was in breach of Convention rights, in Re Close & Ors and had concluded that the prohibition had become unlawful by the summer of 2017. The failure to recognise the appellant’s marriage in the present appeal gave rise to the same unjustified discrimination as compared to heterosexual couples whose marriages were recognised in similar circumstances:

“The issue in this case is whether there was any obligation to recognise the appellant’s marriage in this jurisdiction during the period when the prohibition on same sex marriage was not in breach of Convention rights. We do not accept that section 3 of the HRA can be utilised to achieve that aim and consider that his is an incompatibility case” [18].

For the reasons set out in Re Close, the Court did not accept that Articles 8 or 12 ECHR required the availability of same-sex marriage, not did the appellant’s argument that he was expressing his religion and beliefs by being married add anything to Articles 8 or 12: “Under the Convention Article 9 cannot deliver what Article 12 does not deliver” [19].  The view of the Court was that it was an Article 14 discrimination case. For the purposes of that analysis, the true comparator was between those same-sex couples and heterosexual couples who married in England and Wales.

The Court accepted that the maintenance of the traditional concept of marriage was a legitimate aim and provided justification for the prohibition on the recognition of same-sex marriage for the period until the summer of 2017. The Court did not accept that those same-sex couples who were married in England and Wales were treated differently from the appellant and his husband – because both had had their marriages recognised in England and Wales and both were treated as civil partners in Northern Ireland:

“The heterosexual marriage was treated as a marriage in Northern Ireland. There was a difference of treatment which required justification. We considered the question of justification in some depth in Close and are satisfied that exactly the same issues arise in this case. We see no basis, therefore, upon which it could have been argued that the failure to recognise a same-sex marriage celebrated in England and Wales could have given rise to unlawful discrimination during the period up to the summer of 2017 during which period the prohibition on same-sex marriage was justified in this jurisdiction” [25: emphasis added].

Given that the law had now changed, there was no purpose to be served by making the declaration sought [26].

Comment: The Lord Chief Justice referred back to the earlier judgment in the case of Grainne Close, Shannon Sickles and Christopher and Henry Flanagan-Kane. In that case, the Court concluded at [58] that

“it was clear by the time of the delivery of the first instance judgment in this case in August 2017 that the absence of same-sex marriage in this jurisdiction discriminated against same-sex couples, that a fair balance between tradition and personal rights had not been struck and that therefore the discrimination was not justified”.

Similar considerations seem to have applied in this later judgment, but they are not spelt out in terms – indeed, as the italicised passage from [25] quoted above seems to suggest, the Court dealt with the situation strictly in terms of the position on 19 December 2014, when Mr X issued his petition. But the proceedings were, in any case, overtaken by events when the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 came into force on 13 January 2020.

(An incidental consequence of the judgment seems to be that the earlier case, which was previously cited as Sickles & Anor, Re Judicial Review [2020] NICA 20, is now to be cited as Re Close & Ors [2020] NICA 20.)