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Same-sex marriage in the limelight

Tuesday, 9 September, 2014

Same-sex marriage was the topic of a stimulating discussion held at the STEP Worldwide office on 23 June. 


Richard Frimston TEP, Richard Roberts TEP and Julian Washington TEP led the discussion which focused on unresolved issues stemming from the Marriage (Same Sex Couples) Act 2013 including: the unintended revocation of wills and the effect of the legislation on foreign couples. The Act applies in England and Wales, and the majority of provisions came into force on 13 March 2014.

The UK, it was noted, is very much at the virtuous end of that spectrum with just a few legal issues that need to be reviewed, one of which is the possible unintended revocation of wills when a civil partnership is converted to marriage.The group noted that progress has been made in many jurisdictions in terms of recognising same-sex relationships. At one end of the spectrum there is full marriage equality, and equality for tax and succession law purposes; and at the opposite end there are a small number of countries which apply the death penalty to consensual same-sex behaviour.

The unintended revocation of wills

The established principle, it was explained, is that if you make a will and subsequently get married (and are domiciled in England and Wales at that point) without having done anything in contemplation of the marriage then the will is revoked. Section 9 of the Marriage (Same Sex Couples) Act 2013 enables existing civil partners to convert their civil partnership into marriage ‘under a procedure established by regulations made by the Secretary of State.’ The question, the group raised, is: will conversion to marriage have the effect of revoking existing wills of civil partners?meeting

The same concern was raised with regard to foreign relationships. The Civil Partnership Act 2004 came into effect on 5 December 2005 and allows foreign relationships to be recognised as civil partnerships in the UK. Will these relationships be automatically ‘upgraded’ to marriages from March 2014, and if so, will existing wills be revoked? 

While the group hoped that a common sense approach would prevail, and any existing wills remain valid, it was noted that s18 of the Wills Act 1837 states ‘a will shall be revoked by the testator’s marriage’. It was a point, the group noted, that needed to be considered by the government.

Cross-border couples

The effect of the Marriage (Same Sex Couples) Act 2013 on cross-border couples was also discussed. Richard Frimston explained that, generally, the validity of marriage is governed by personal law; from a common-law perspective that is domicile and from a civil-law perspective its nationality.  He noted that in most jurisdictions a marriage is valid provided it is valid under the personal law of one of the parties. However in the UK, he explained the rule is that, generally, for a marriage to be valid it must be valid under the personal law of both parties.  

The group noted that before the Marriage (Same Sex Couples) Act 2013 came into force it wasn’t a problem that clients from jurisdictions that did not recognise same-sex unions register a civil partnership in the UK. However now that the 2013 Act is in force civil partnerships may be ‘upgraded’ to marriages, and clients whose personal law does not recognise marriage may try to register a marriage in the UK. The result will be that if the marriage is not valid under one of the parties personal law it will not be valid in the UK. It was highlighted that this point is not addressed in the Marriage (Same Sex Couples) Act 2013 at all, but ought to be.

The group intend to compile a list of all the unresolved issues that stem from the Marriage (Same Sex Couples) Act 2013 and discuss them with the appropriate authorities.


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