Gay marriage was in the news again this week following a landmark victory for an English man in the Canadian Supreme Court, in which it was ruled that it would be an "impermissible discrimination" not to treat him as being in a same-sex marriage in Canada, following his civil partnership in England. Wayne Hincks entered into a civil partnership with Gerardo Gallardo in London in 2009, following which they moved to Canada. Unfortunately, their relationship broke down.
When Mr Hincks sought a divorce, Mr Gallardo challenged his ability to do so. He argued that a civil partnership was not a legally valid relationship in Canada, which instead allows same-sex marriage. This would have left Mr Hincks unable to make a claim against the family property and business. Fortunately for Mr Hincks, Supreme Court Justice Ruth Mesbur ruled that they were married under Canadian law, regardless of their legal status in England, as otherwise it would run "contrary to express values of Canadian society."
These comments from the highest court in Canada will place further pressure on the Coalition government to introduce gay marriage in England and Wales. But it also highlights the minefield many face given the vast difference in gay rights from country to country. So what are the key questions gay couples should be asking if considering a move overseas?
Will my foreign same-sex partnership be recognised in England and Wales?
Possibly. If it was legally registered as a same-sex partnership overseas, it will be recognised here if it is either a specified relationship (the list, which can be found here includes relationships such as Californian same-sex domestic partnerships and pacte civil de solidarité in France). If the relationship is not specified on this list, then it may also be recognised if it satisfies proscribed general conditions, a key one being that the relationship has been legally registered.
However, it will only be recognised as a civil partnership. This follows a case in the High Court in 2007 in which a lesbian couple, Celia Kitzinger and Sue Wilkinson, who were married in Canada, sought to have their relationship recognised as a marriage in England, rather than a civil partnership. Their claim was rejected, with Sir Mark Potter ruling that this was justified to "protect the traditional definition of marriage". This stands in stark contrast to the comments by Supreme Court Justice Mesbur.
Will my civil partnership be recognised overseas?
Not necessarily. The Canadian case is thought to be the first decision formally recognising an English civil partnership as a same-sex marriage, despite there being no exact equivalent under Canadian law, and each country will have its own laws as to how a civil partnership may be treated there. While England and Wales will generally recognise most other countries' same-sex legal partnerships, there is no guarantee that this will be mutual and it will vary from country to country.
And of course, civil partnerships will not be recognised in the many countries that still do not grant legal rights to gay couples.
Will I be able to dissolve my relationship in another country?
This depends on what kind of legal partnership you have and where you are seeking to dissolve it. The problem Mr Hincks faced was that if his civil partnership was not recognised as a same-sex marriage in Canada, he would not be able to get a divorce as he would not be in a legally valid relationship. He may have also had difficulties in dissolving his civil partnership in England, as it is generally necessary to meet certain jurisdictional requirements before you can start proceedings. This can be a complex area, so you should consult a family lawyer if you're uncertain of your legal standing.
However, the English courts recognise the difficulties some gay couples may have with this, and will allow them to obtain a dissolution if they are unable to do so anywhere else and if it is in the interests of justice to allow them to do so. Each country's laws in this area will be different; again, seek advice from a local lawyer if you are unsure about this.
Will moving overseas affect my legal rights?
Before moving, you should always check whether there will be any change to the legal rights afforded to you under the laws of your current country. For instance, a civil partnership grants a couple in England and Wales all the same rights and responsibilities as if they were married here, but those same rights may not be available in the country they are moving to. This works both ways. A couple moving to England from a country that affords less rights to a same-sex partnership may not want those additional legal obligations. It is always important to find out how you will be affected and what you can do to protect you and your partner in this situation.
It is likely that as more and more countries introduce legal same-sex partnerships we will see further cases similar to that involving Mr Hincks and Mr Gallardo as the courts wrestle with the different approaches taken from country to country. It is hoped that as gay rights become increasingly more commonplace across the world, there will be a greater uniformity and fairness in approach. Until that happens, however, it is important that if you and your partner are in a legal same sex partnership and are considering a move abroad, that you find out exactly how you may be affected, so you can avoid a possibly lengthy court battle.
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