Marriage (same sex couples) Act 2013

Following legislation which received Royal Assent in July last year, same sex couples were this week able to formally give notice of their intention to marry, with the first marriages taking place from 29 March.

The Act provides a process whereby same sex couples can now marry according to religious rites and usages. However, there is no obligation or compulsion on religious organisations or individuals to carry out or participate in a religious marriage ceremony of a same sex couple and protection is provided under equality law for religious organisations and individuals who do not wish to marry same sex couples in a religious ceremony.

The Act does not remove the availability of civil partnerships for same sex couples. There is provision in the Act for those in a civil partnership to convert their relationship to a marriage if they choose to do so. In doing so the civil partnership will end on the date of conversion and the resulting marriage will be treated as having existed since the civil partnership was formed.

The Act also provides that a married person can legally change their gender without ending their existing marriage.

With regards to international relationships, same sex couples can marry in a territory outside England and Wales providing certain criteria, as set out in the Act, are met including that at least one person is a UK national, the people would have been eligible to marry in the UK, the authorities in the territory of the marriage ceremony do not object and there are insufficient facilities for them to enter into a marriage under the law of the overseas territory.

It is worth noting that same sex couples who marry in England and Wales but remain or become resident in another country may not be able to bring an end to their marriage in that country if it does not recognise the existence of the relationship.

The law of marriage surrounding a married man and woman and that of same sex couples, although in many places very similar, still contains certain difference. For example, the common law presumption that a child born to a married woman is also the child of her husband does not extended to marriages of same sex couples. Non-consummation can also not be a ground on which marriage of a same sex couple is voidable.

For further information or advice in relation the Marriage (Same Sex Couples) Act 2013, or other family law related queries, please contact Nina Lake on 020 7405 2000 or email nina.lake@bllaw.co.uk.

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