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Fifteen countries (Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, France, Brazil, Uruguay, and New Zealand) as well as certain states in Mexico and the United States provide for same-sex marriage. As from 29 March 2014 England and Wales will be added to this list.
In the words of the Equalities Minister: "Marriage is the bedrock of our society and now irrespective of sexuality everyone in British society can make that commitment. It is a wonderful achievement and whilst this legislation may be about marriage, its impact is so much wider."
But what will same-sex marriage mean for couples and how does same-sex marriage differ from civil partnership?
This bulletin considers the impact of the Marriage (Same-Sex Couples) Act 2013 and offers an overview of the key points for couples to consider.
The Act received Royal Assent on 17 July 2013. Its most significant feature is that it allows same-sex couples in England and Wales to marry. The Act will not make same-sex marriage lawful in Scotland and Northern Ireland, as it is for the devolved Parliaments in those countries to enact legislation to make it lawful, if they so choose.
The Scottish parliament has voted to legalise same-sex marriage. Equally, the Act does not change the law relating to marriage for opposite-sex couples, abolish civil partnership for same-sex couples, repeal the Civil Partnership Act 2004 or extend civil partnership to couples of the opposite sex.
Couples who want to be among the first to get married in England and Wales will need to give formal notice of their intention at their local registry office by 13 March 2014.
Same-sex couples have been able to register their relationship as civil partnerships since December 2005. Although the future of civil partnerships is going to be reviewed, they remain an option for same-sex, but not opposite-sex, couples (although whether this should remain the case is being reviewed by the Secretary of State).
For the time being, at least, we will have a system where same-sex couples can marry or enter into a civil partnership, but opposite-sex couples can only marry.
Same-sex couples already in a civil partnership will be able to convert their civil partnership into a marriage if their civil partnership was registered in England and Wales. This will not apply to couples who registered a civil partnership in Northern Ireland, Scotland or elsewhere - they will not be able to marry in England and Wales until their civil partnership is first dissolved.
When a civil partnership is converted into a marriage, the civil partnership will come to an end and the marriage will be treated as though it had existed from the date of the civil partnership.
The regulations which will provide the procedure for converting a civil partnership into a marriage should be published later this year.
In a broad range of major issues, such as the rights and responsibilities during marriage and the financial consequences of divorce and dissolution, English law treats spouses and civil partners very similarly. However, there are legal differences between marriage and civil partnerships. While these are minimal they may be very important to certain couples.
First, civil status and words matter.
Second, same-sex couples may be able to have a civil or religious wedding if the religious organisation 'opts in' (of which there is no compulsion for them to do so) but civil partnerships cannot usually be conducted by any religious organisation.
This remains the case even after regulations came into force permitting civil partnerships to take place on religious premises and relaxing the rules to allow religious content in the introduction to, interval or conclusion of the civil partnership formation.
For those whose relationships have broken down, adultery is not a ground for dissolving a civil partnership and is only a ground for dissolving a same-sex marriage if the adultery takes place with a member of the opposite sex (although in practice unreasonable behaviour usually gives grounds for dissolving a relationship where there has been infidelity anyway).
In practice, this distinction is unlikely to have any real impact.
There is no international law to confirm how or if a same-sex marriage will be recognised in other countries. The same is true for civil partnerships.
However, it is likely that a same-sex marriage will be recognised in countries where same-sex marriage is legal (eg in France or the Netherlands) unless there is a public policy reason to the contrary.
Importantly, there is provision in the Act for same-sex marriages contracted under foreign law to be recognised as marriages in England and Wales. This applies to same-sex marriages entered into in the future as well as marriages currently subsisting.
But what happens if a same-sex couple is married in a country which recognises same-sex marriages and moves to a country that either renders their marriage unlawful or is silent on the issue?
There will be complex questions for relocating couples, or those interested in buying property or investing in another country, who will need to know whether their marriage will be recognised abroad (that is, what status will be accorded to the couple - if any status at all - and what rights and responsibilities accompany that status).
This will impact on issues such as tax planning or the breakdown of the relationship.
Same-sex spouses will have the same access to divorce as opposite-sex couples currently do and they can make the same applications for financial provision on the breakdown of their relationships. English family judges will apply English divorce law and - generally speaking - the same discretionary (at times generous) rules when considering finances.
This is the case even for non-British couples living in England and Wales. It remains to be seen whether same-sex married couples will be treated by the divorce courts differently to civil partners. On present case law any differences ought not to be large.
There is no express EU (or international) regulation of jurisdiction, applicable law or recognition and enforcement of divorce or dissolution proceedings relating to same-sex marriage or civil partnership. While there are EU rules on divorce, it is open to national interpretation whether this includes same-sex marriage.
Where countries recognise same-sex marriage as marriage, they may apply the EU rules on divorce (which will be the case in England and Wales) and applicable law (if they have opted into those regulations).
Where the same-sex marriage is not recognised as marriage but rather as a civil partnership or some other type of registered partnership, the EU rules will have no direct application and the financial aspects of those relationships will be governed by national law.
This means that the consequences following the breakdown of a cross-border same-sex marriage (or a civil partnership) across the EU Member States and internationally is not as straight-forward as the recognition of the dissolution of a marriage for heterosexual couples.
In the same way as civil partners may wish to consider pre-registration agreements to set out how they would wish property and assets to be divided should they separate, same-sex spouses may wish to consider pre-nuptial agreements to give clarity and prevent disputes in the future (and to protect themselves against the ravages of financial orders on divorce).
Individuals who have had a pre-nuptial agreement (or its equivalent) in a foreign jurisdiction might be well-advised to consider mirroring that agreement in a document prepared in England in order to protect themselves. Getting good quality legal advice initially in all relevant jurisdictions is therefore critical for same-sex couples who want the most straightforward experience.
References to marriage and marriage-related terms in private legal instruments (such as wills or trust deed) made after the relevant provisions of the Act come into force will be read as including same-sex marriage and spouses unless the instrument provides otherwise. However, the Act does not affect private legal instruments made before that date.
This means that in the absence of express definitions any references in any existing Wills or trusts currently referring to 'marriages' or 'spouses' will not be taken to include the spouse in a same-sex marriage. Families will need to take steps to consider their wills or trust instruments and amend these where they intend to include spouses of same-sex marriages.
Generally speaking, the Act provides that same-sex married couples will enjoy the same legal rights as opposite sex married couples. This means that same-sex civil partners and married couples can benefit from the same UK tax reliefs and exemptions as opposite-sex married couples. A significant benefit is the total exemption from UK inheritance tax on assets a spouse (or civil partner) leaves to the other on death.
The surviving spouse or partner may, however, face an unexpected tax bill if they couple have links with or own property in another country. This may because no tax-relief or exempts are available for same-sex marriages or civil partnerships in the country in question. The starting point is to be clear what taxes may arise and to plan accordingly.
The UK treats married couples and civil partners the same for the purposes of immigration. There are visa categories for spouses, civil partners and unmarried partners providing residence and the right to work in the UK on the basis of marriage or civil partnership with a British citizen, or person settled in the UK.
The requirements for spouses and civil partners are the same (unmarried partners must show prior cohabitation). There are also dependant visas for civil partners, spouses and unmarried partners of a main visa applicant eg a worker sponsored by a UK company can arrange for a dependant visa for their spouse, civil partner or unmarried partner.
The UK's approach will enable same-sex couples to have the option of getting married or entering into a civil partnership without the concern that this may impact negatively on their immigration status.
UK immigration law applies to the whole of the UK including Scotland and Northern Ireland, so a same sex marriage could be recognised for immigration purposes in Scotland and Northern Ireland but not necessarily in other areas of life if the legislation has not be enacted.
It is important for couples relocating to a new country to consider the immigration implications of a marriage or civil partnership because that country may recognise one but not the other or the immigration benefits could be different and advice should be sought from an immigration specialist.
Couples considering entering into a same-sex marriage are advised to talk through any potential legal issues with a member of our highly ranked Private Client, Immigration and Family teams.
For more information please contact Michael Wells-Greco, Partner
T: +41 22 591 1880