Recognition of Overseas Same Sex Marriages: A Matter of Equality and Sound Statutory interpretation

Dr Leonardo J. Raznovich, Canterbury Christ Church University

Abstract

It is accepted that the institution of marriage is more than economic benefits. The availability of marriage to same sex couples in eight western democratic jurisdictions exerts pressure on courts to consider the substance and ethical dimension of marriage across borders. This paper analyses the legal and ethical problems that exclusion of same sex couples from marriage generates in relation to equality and individual freedoms in a democratic society. The paper focuses on the particular case of overseas same sex married couples that seek to immigrate to England. Part I analyses the legal recognition of overseas same sex marriages under English law by looking into the operation of principles of international private law. This analysis will show that a mere positivist ‘Kelsenian’ approach ought to lead to the recognition of some same sex marriages and that arguments regarding public policy are not tenable to the court under English case law. Part II focuses on the impact of the Civil Partnership Act 2004 in the operation if these principles. The analysis will show that although the Act sought to characterise all overseas same sex marriages as civil partnerships, it failed to override the effect of common law with regard to the recognition of some same sex marriages on grounds of sound statutory interpretation and of equality and individual freedoms.