Wilkinson v Kitzinger and Another (Same-sex marriage)
|England & Wales
|31 July 2006
| EWHC 835 (Fam), EWHC 2022 (Fam)
|Case No: FD05D04600,Case No: FD005D04600
|31 July 2006
 EWHC 2022 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Case No: FD05D04600
Ms Monaghan and Ms Ruth Kirby (instructed by Liberty) for the Petitioner
First Respondent appeared in person and was not represented
Ms Mountfield (instructed by Treasury Solicitors) for The Attorney-General
Hearing date: 6 th-9 th June 2006
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
SIR MARK POTTER THE PRESIDENT OF THE FAMILY DIVISION
This judgment is being handed down in private on 31 July 2007 It consists of 36 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Sir Mark Potter, P:
On 26 August 2003, the Petitioner and the first Respondent who were then and remain domiciled in England, went through a form of marriage, lawful and valid by the law of British Columbia which permits and recognises as valid marriages between persons of the same sex..
Prior to that ceremony, the Petitioner and the first Respondent, who are both University professors, had been living together as a couple for thirteen years. Upon their return to the United Kingdom, and in advance of the coming into force of the Civil Partnership Act 2004 ("CPA"), the Petitioner, with the support of the first Respondent, instituted these proceedings, seeking a declaration that the marriage was a valid marriage at its inception and:
"If necessary in order to make such a declaration, the Petitioner also seeks a declaration of incompatibility under s.4 of the Human Rights Act 1998 in relation to s.11(c) of the Matrimonial Causes Act 1973."
The orders sought have been expanded and clarified by Karon Monaghan who appears for the Petitioner as follows.
i) The primary order sought is that:
Pursuant to section 5 of the Family Law Act 1986, it is declared that the marriage between Susan Jane Wilkinson and Celia Clare Kitzinger which took place in British Columbia in Canada on 26 August 2003 is valid under the law of England and Wales.
ii) In the alternative, if the court finds that the law in this jurisdiction means that it cannot recognise the said marriage, the Petitioner asks the court to declare that:
(a) Being contrary to Article 8, 12 and 14 (taken together with Article 8 and /or Article 12) of the European Convention on Human Rights, the prohibition of marriage of two persons of the same sex in this jurisdiction is in breach of the Petitioner's human rights; and
(b) Sections 11 (c) of the Matrimonial Causes Act 1973 and Section 1(1) and Chapter 2 of Part 5 of the Civil Partnership Act 2004 are incompatible with the obligations imposed on the United Kingdom by the European Convention on Human Rights and that the court will make a Declaration of Incompatibility in respect of the aforesaid sections under section 4 of the Human Rights Act 1998.
The position of the Petitioner and the first Respondent.
The Petitioner's application is supported by her two witness statements dated 4 July 2005 and 18 May 2006, together with a witness statement of the first Respondent dated 12 May 2006. They set out the history and background to their relationship of some fourteen years standing and the Petitioner gives a detailed history of their marriage and the reasons why they seek recognition of it in this country. Having referred in her first affidavit to the impending implementation of the CPA and the potential "downgrading" of her Canadian marriage to the status of a civil partnership under its provisions, she states:
"18…. I do not wish my relationship with Celia to be recognised in this way because we are legally married and it is simply not acceptable to be asked to pretend that this marriage is a civil partnership. While marriage remains open to heterosexual couples only, offering the "consolation prize" of a civil partnership to lesbians and gay men is offensive and demeaning. Marriage is our society's fundamental social institution for recognising the couple relationship and access to this institution is an equal rights issue. To deny some people access to marriage on the basis of their sexual orientation is fundamentally unjust, just as it would be to do so on the basis of their race, ethnicity, and nationality, religion, or political beliefs.
19. I believe that the argument of "separate but equal" is unacceptable because: (a) there should not be separate sets of laws for recognising different–sex and same-sex relationships; and (b) marriages and civil partnerships are clearly not equal. They are not equal symbolically, when it is marriage that is the key social institution, celebrated and recognised around the world; and they are not equal practically, when it is apparent that civil partnership is a lesser alternative, which will not be recognised around the world, or even across Europe. Even if the rights and benefits conferred by civil partnership are identical (at least in practical terms) to those conferred by marriage within Britain itself, this is not so beyond its boundaries…
20. I feel a sense of moral outrage that, counter to my own personal experience of the importance of my marriage to Celia, this second marriage is deemed by society to be of less value than my first, simply because it is a marriage with a woman…
21…. I want my marriage, and same-sex marriages more generally, to be recognised in Britain, and elsewhere, because I want to be able to refer to Celia as my wife and have that immediately and unproblematically understood as meaning that she is my life-partner with all the connotations and social consequences that using the term "wife" or "husband" has for a heterosexual couple. I want our marriage to be recognised institutionally by banks, insurance companies, the tax office, and so on. This symbolic status of marriage as a fundamental social institution is, in many ways, as important as its formal legal status. It provides for social recognition of key relationships, and to have our relationship denied that symbolic status devalues it relative to the relationships of heterosexual couples."
In the statement of the first Respondent she expresses similar views. So far as the significance of non-recognition is concerned she states at paragraph 18 of her affidavit that:
"Marriage is understood internationally and represents the highest form of recognition for a committed relationship (described by many as the "gold standard"). But this has more than symbolic significance for us. It has a practical bearing on issues such as whether one of us will be recognised as the other's next of kin in an emergency. Having our marriage recognised in our home country would lend weight to our relationship when we are travelling to places which do not have the same respect for same sex relationships."
She emphasises the significance of recognition to the human rights of lesbians and gay men generally and states at paragraph 20 of her statement that:
"…Other same-sex couples who have legal Canadian marriages are seeking recognition of those marriages in their home countries (including in Hong Kong, Ireland, Israel, and New Zealand). Legal changes which would allow same-sex marriages are also being considered in a number of countries throughout the world, such as Italy, Portugal, South Africa, Sweden, and the US. These two trends reflect the growing recognition of the importance of marriage to same-sex couples internationally."
She also exhibits a number of personal testimonials from people personally affected by or supportive of, the Petitioner's case. She states at paragraph 23 that:
"Marriage is a basic social institution and exclusion from it, whether on grounds of race or ethnicity, gender, religion, nationality or sexual orientation, means being deprived of full citizenship. It also leads to a sense of alienation and marginalisation which prevents Sue and me from feeling as though we are fully contributing members of society."
She goes on to draw historical analogies between the exclusion of gay persons from the institution of marriage and the banning of marriage between persons of different races under the apartheid regime in South Africa, the Southern States of America and Nazi laws banning marriages between Jews and "Aryans".
There is exhibited to the first witness statement of the Petitioner, the "expert report" of a Canadian lawyer, Cynthia Petersen, which not only establishes the validity of the Petitioner's marriage under Canadian law, but helpfully sets out the current state of Canadian Provincial and Federal law with respect to same sex marriage.
The relevant law of England and Wales
The common law definition of marriage is that stated by Lord Penzance in at 133:
"The voluntary union for life of one man and one woman, to the exclusion of all others."
This definition has been applied and acted upon by the courts ever since: see for instance (otherwise Ashley) . As stated by Lord Nicholls of Birkenhead in ...
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