Category: Gay Marriage

Challenge to Northern Ireland same-sex marriage ban dismissed as ban ‘does not violate the rights of LGBT couples in the region’.

Same-sex marriage is now legal in the Irish Republic, England, Scotland and Wales however same-sex couples are still banned from marrying in Northern Ireland.

Two legal challenges to the same-sex marriage ban in Northern Ireland have been dismissed by Mr Justice O’Hara in the High Court. O’Hara J said that the ban did not violate the rights of LGBT couples in the region and that it was for the Stormont Assembly to decide on issues of social policy. In delivering his judgment O’Hara J stated:

‘It is not at all difficult to understand how gay men and lesbians who have suffered discrimination, rejection and exclusion feel so strongly about the maintenance in Northern Ireland of the barrier to same-sex marriage’

‘The judgment which I have to reach is not based on social policy but on the law’.

The ruling applied to two cases, the first case was brought by the first female couple and first male couples to have their civil partnership recognised in Northern Ireland. The second case (known as Petition X) involved two men who were married in London in 2014 and were trying to get their union recognised in Northern Ireland as when they moved to Northern Ireland their marriage was changed to a civil partnership in law.

Earlier this month the Irish Prime Minister visited a gay rights event in Belfast and said the legalisation of same-sex marriage in Northern Ireland was just a matter of time.

John Walker wins legal battle and secures equal pension benefits for same-sex couples

In Walker v Innospec Limited and others [2017] UKSC 47, the Supreme Court ruled unanimously that an exemption in the Equality Act 2010 – which allows employers to exclude same-sex partners from spousal benefits paid into pension funds before December 2005 – is discriminatory and breaches EU equality laws.

This ruling means the provision is immediately disapplied and companies taking advantage of the exemption will be breaking the law.

John Walker worked for Innospec for over 20 years and retired in 2003 – meaning that his employer was legally allowed to refuse his husband an equal right to his pension. Mr Walker and his husband have been together since 1993 and they entered into a civil partnership in January 2006, having registered it on the first day it was legally possible to do so. This was later converted into a marriage.

In accordance with the Equality Act exemption, should Mr Walker die, his husband would not receive the same survivor benefits he would if her were a woman. Those benefits would not include all the contributions Mr Walker made prior to 2005 and this left his husband with a pension of only a few hundred pounds a year. If Mr Walker were married to a woman, she would receive £45,000 a year for the rest of her life.

Innospec’s position was supported by the Department for Work and Pensions however the Supreme Court’s unanimous judgment was given and all five justices agreed that the exemption was discriminatory and breached EU law.

If you are unsure about your pension rights and entitlement upon separation, our specialist team can advise on pension settlement in divorce proceedings. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. Please contact us on 0161 927 3118 today.

Isle of Man Approves Gay Marriage

The Isle of Man parliament has recently voted to approve gay marriage on the island, which leaves just one country in the British Isles opposed to gay marriage.

The bill to legalise gay marriage was approved in April by the High Court of Tynwald which is responsible for setting laws on the island. The Isle of Man has the freedom to make its own laws due to its status as a crown dependency.

The decision to legalise gay marriage on the island marks the final step on the journey to acceptance of gay relationships. The island had a reputation in the 80s and 90s for its opposition to homosexuality and only legalised same sex relationships as recently as 1992 – becoming the last part of the British Isles to do so.

This has not been the case with gay marriage however, and the decision to make it legal, subject to the law receiving Royal Assent, means that only Northern Ireland remains opposed to gay marriage in the British Isles.

Commenting on the change in the law, chief minister of the Isle of Man, Alan Bell, said “It’s a totally logical human right and human expectation that straight couples and gay couples should be able to enjoy life with the partner that they choose and I totally support that.”

Vatican Softens On Divorce But Not Gay Marriage

There are signs that the Catholic Church is beginning to soften its stance on a range of issues including divorce but there remains a strong conservative undercurrent.

While divorce continues to be something that is far from welcomed by the Catholic church, it should come as some relief that the church will look into divorcees receiving communion even if they will do so on a case by case basis.

Even this move was passed by just a single vote as Pope Francis set about turning the Catholic church into what he describes as a “field hospital for wounded souls.”
The issue of gay marriage, however, remains a contentious one with bishops strongly opposed to gay marriage. A total of 270 Catholic bishops gathered for debates which took 90 hours to complete with 400 speeches related to the pastoral care of Catholic families.

The issue of divorce for Catholic couples has historically been a barrier to unhappy couples divorcing from partners who may have been abusive. Remaining trapped in those marriages by their religion is not something that progressive members of the church see as an option.

Allowing people to take communion after going through a divorce is seen as a highly significant step in removing barriers to participation in services. Millions of people who may have felt excluded following a divorce which not have been wholly their fault will now be looking forward to the possibility of having a full role in the life of their church.

Gay couples on the other hand will probably have longer to wait for any sign of acceptance in the Catholic church.

Court of Appeal overturns decision as focused too much on ‘gender discriminatory’ guidance in Payne v Payne – change the court’s approach to relocation cases

The latest Court of Appeal decision on international relocation (Re F (International Relocation Cases) [2015]) has overturned an experienced judge’s decision because they focussed too much on the Payne criteria and not enough on the overall assessment of welfare. In the first instance in Re F, the mother was granted leave to remove the child to Germany. Lord Justice McFarlane held that the harm of separating the child from their father had not been properly evaluated.

Prior to this decision, the guidance in Payne v Payne was the first thing to be considered by a judge in hearing an application for relocation. Payne v Payne was a Court of Appeal decision in 2001 in which a father’s appeal against the removal of his child to New Zealand was rejected. The guidance given in Payne referred to questions which needed to be asked in relocation cases such as:

– Is the relocating parent’s application genuine, realistic and well researched?
– Is the parent’s opposition motivated by genuine concern or an ulterior motive?
– What would be the extent of detriment to the father and his future relationship with the child if the application were granted?
– What would be the impact to the relocating parent of the refusal of her realistic proposal?

The guidance in this case has been criticised for placing too great an emphasis on the wishes and feelings of the relocating parent and that the guidance usually assumed that the mother was the caring parent and usually the one who sought to relocate.

The guidance in Payne v Payne has been described as a gender discriminatory approach and Lord Justice McFarlane stated in Re F ‘in the decade or more since Payne it would seem odd indeed for this Court to use guidance which is out of context which was intended is redolent with gender based assumptions as to the role in relationships with a child’. Lord Justice McFarlane went on to say ‘the questions identified in Payne may not be relevant on the facts of an individual case and the Court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it.’

The effect of Re F is not that the guidance Payne v Payne had been overturned or set aside, instead it has been re-aligned as just one of the decisions based upon the welfare of the child. The guidance is still useful in some cases, however Re F clarifies that a court should never base its entire decision upon the questions identified in Payne v Payne. Re F shows the courts acknowledging the importance of the erosion of the quality of the relationship between the relocated child and the left behind parent.

This is a highly emotional area of family law for the entire family. Whether the relocation of a child is to another continent or in Europe, these cases present sensitive issues. It is essential to seek advice early, if possible at the time of separation as early decisions may affect how things turn out later on. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. We can talk you through your options and help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.

Channel Islands Drop Same Sex Adoption Restrictions

Both Jersey and Guernsey have decided to drop laws that prevented same sex couples from adopting children.

Guernsey decided that its adoption law, which was introduced in the mid- 1960s to prevent same sex couples from adopting children was now inappropriate. The recent change in the law will see same sex couples being free to adopt children for the first time in Guernsey and Jersey.

The change in the law allowing same sex couples to adopt will be viewed as a major step forward and put an end to discrimination as well as bring the Channel Islands into line with the UK and most other European countries.

The laws over same sex adoption while liberal in most countries are still under debate or ambiguous in some countries particularly in many Eastern European countries and Italy.
In Jersey, children aged 14 will be able to veto adoption orders and the law change also means that unmarried same sex couples can now jointly adopt a child even if a child aged 14 or over needs to be in agreement for the adoption to commence.

As reported on the BBC website Andrew Green, Health and Social Services Minister of Jersey said, “It makes Jersey’s law fit for purpose and compliant with our own discrimination laws. At the heart of the legislation is the welfare of the child and the right to a loving and secure home.”

US Supreme Court rules that same-sex marriage is a legal right across the United States

In a 5-4 majority decision, the Supreme Court made it legal for same-sex couples to marry in all 50 states. Prior to this decision, only 37 states permitted same-sex marriage. Following this decision, the 14 states with bans on same-sex marriage will no longer be able to enforce them. It has been reported that same-sex couples in the affected states including Georgia, Michigan, Ohio and Texas rushed to get married on Friday 26th June.

President Barack Obama has said the ruling was a ‘victory for America’ and tweeted that day stating ‘Today is a big step in our march toward equality. Gay and lesbian couples now have the right to marry, just like anyone else. #LoveWins’.

Justice Anthony Kennedy in delivering his opinion for the majority stated that the right to marry was ‘based on history, tradition and other constitutional liberties inherent in this intimate bond’. Although many were delighted, the Supreme Court decision has also angered many opponents of gay marriage.

The case considered by the Supreme Court concerned Mr Obergefell, who lived in Ohio, and was not recognised as the legal widower of his late husband. In recent years, a number of legal rulings and a dramatic shift in public opinion has expanded gay marriage in the United States and this decision reinforces this shift in opinion.

Baby girl should be removed from her mother and live with her father and his boyfriend – Ms Justice Russell rules.

The main issue in this case was over the nature of the parents’ agreement when the child was conceived. The mother stated that they had agreed she would be the main parent, however, the father, who donated the sperm, said the mother had agreed to be the gay couple’s surrogate. In the judgment Ms Justice Russell found that the mother really wanted a baby for herself and this was evidenced by the fact she had secretly named the girl and had her baptised in defiance of a court order.

Ms Justice Russell said that it was in the ‘best interests’ of the girl to live with her father. Ms Justice Russell also referred to the fact that the mother had used ‘stereotypical images and descriptions of gay men’ and has said that they were ‘sexually disloyal to each other’. The Judge also referred to the fact that the mother had publicised her case on Facebook and social media to try and recruit the support of others.

Ms Justice Russell found that the mother’s actions had ‘always been of a woman determined to treat the child as solely her own’ and ruled that the girl living with her father and his partner reflected the reality of her conception and accords with her identity and her ‘place within the family’.

This High Court case was heard earlier this year; however the decision has just been published.

This case is another example of how agreements reached between parents in relation to the children go wrong and cause great distress to the biological parents and their spouses or partners. This is a highly emotional area of family law for the entire family. Our specialist team can advise on applications about what time a child should spend with each parent. Consulting our specialist lawyers is a great first step, we can talk you through options, and help you to decide what the right decision for your situation is. Please contact us on 0161 927 3118 for a free 20 minute consultation.

Extension of Civil Partnerships to Opposite Sex

The Government has announced that it will consider the extension of civil partnerships to opposite sex couples. A Parliamentary Committee that has published a report of the Same Sex Couples Marriage Bill has stated its concern that there will be potential discrimination for cohabiting opposite sex couples, in comparison to civil partnerships. Initial Government concerns were focused arround the costs related to extending the bill to same sex couples, but the report disputes these costs and is asking for clear and accurate details about such.

The Committee to keen to stress that the Government carry out a full review of pension provisions of same sex couples and civil partners to ensure that there is no discrimination arising in the pension scheme provisions.

The full report can be read here.

The Church of England – Civil Partnerships

The Church of England has given the first signs of a ‘blessing’ towards civil partnerships. Whilst the official stance is still unchanged, priests have been urged to be ‘flexible’ and devise ‘pastoral accommodation’ to gay couples.

A senior bishop said that same sex couples needed to be given recognition and ‘compassionate attention’ from the Church.

Some churches such as Southwark Cathedral and St Martin-in-the-Fields, London, are two churches that have openly shown support for civil partnerships by offering some ‘blessings’.

Churches have been encouraged to look at each case individually.

“In pastoral responses a degree of flexibility may be called for in finding ways to express the Church’s teaching practically,” it said.
“In affirming its belief in marriage as the form the creator has given us for intimate and permanent relationship of a man and a woman, the Church does not treat questions of what is possible in hard circumstances or exceptional conditions as simply closed. They require pastoral wisdom.”