Has Windsor stormed Edinburgh Castle?

Sunday, 01 September 2013
Richard Frimston continues his discussion of same-sex marriage, nationality and domicile.

In the April issue of the STEP Journal, I flagged up the private international law (PIL) difficulties involved in same-sex marriage, as brought into focus by the ‘South British’ Marriage (Same Sex Couples) Bill (HC Bill 126). The Bill proposes that in England and Wales marriage of a same-sex couple shall be lawful.

While, personally, I support all measures of equality, I remain concerned that the cross-border issues are not being addressed. On 26 June 2013 the judgment of the Supreme Court of the US was handed down in the case of US v Windsor (No. 12-307)1. The case divided the judges five to four. The judgments are essential reading to understand the visceral differences between the majority and the minority.

The debate over whether the Court should have jurisdiction in a matter where the US did not wish to oppose the appeal is of great interest to non-US lawyers. However, the central issue was whether the Defense of Marriage Act was promoted with the bare desire to harm a politically unpopular group.

For the US the recognition of same-sex marriage is a matter for individual states. The federal government cannot interfere, one way or another.

Judge Scalia raised a question about ‘a pair of women who marry in Albany and then move to Alabama, which does not “recognise as valid any marriage of parties of the same sex” … Are these questions [about the marriage] to be answered as a matter of federal common law, or perhaps by borrowing a state’s choice-of-law rules? If so, which state’s?’

The lack of answer to the PIL questions is not the only concern. In any jurisdiction, the big cross-border questions are:

  • What is the connecting factor for personal law? Is it that of an individual’s nationality or domicile?
  • In a jurisdiction where same-sex marriage may be celebrated, what are the requirements for who may enter into such a marriage? In many EU states, one party to the marriage must be a national or habitually resident in that state. Marriage tourism is not an option. Are some existing EU marriages invalid if they do not comply with these rules?
  • Whether or not same-sex marriage is available domestically, will a jurisdiction recognise a same-sex marriage as valid in accordance with the relevant domestic personal law of one or each of the parties? The single or the double nationality or domicile theory.

Section 38 of the Family Law (Scotland) Act 2006 (FL(S)A 2006) makes it clear that the dual-domicile theory is in force in Scotland.

And now, after US v Windsor, there is the Marriage and Civil Partnership (Scotland) Bill (SP Bill 36). It does seem to be better thought through than the ‘South British’ Bill, although the mismatches between the two are obvious. Hopefully, some of these will disappear before enactment.

The Scottish Bill does not, however, address the personal law issue. Section 38 of FL(S)A 2006 appears to continue unaffected. If one party to a same-sex marriage is domiciled in a state that does not recognise such a marriage, the marriage is void ab initio.

US v Windsor makes it clear that for the US the recognition and validity of same-sex marriage is a matter for individual states. The federal government cannot interfere, one way or another. If a same-sex marriage is valid in accordance with state law, then federal tax and other benefits accrue. But the law of which state?

The judgment will clearly have no effect on UK civil partnerships. Civil partnerships are not the same as marriage. However, is a South African civil union the same as a South African same-sex marriage?

Justice Scalia, the most vociferous dissenting voice in US v Windsor, concluded his minority judgment with the words: ‘Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.’

I don’t dissent, but I do think that we owe all better. If someone goes through a ceremony of marriage, they should know whether or not it is valid and where it will be recognised. Come on Cassandra: capture the castle.

  • 1. www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf
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Richard Frimston

Richard Frimston TEP is a Partner and Head of the Private Client team at Russell-Cooke LLP, and Chair of the STEP EU Committee.

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