Wilkinson v Kitzinger and another (No 2)

JurisdictionEngland & Wales
Judgment Date2007
Year2007
Date2007
CourtFamily Division

Human rights – Private and family life – Right to marry – Discrimination against same sex couple – Whether discrimination having legitimate aim and reasonable and proportionate in the circumstances – Human Rights Act 1998, Sch 1, Pt I, arts 8, 12, 14.

Marriage – Foreign marriage – Validity – Marriage in British Columbia of lesbian couple – Petitioner seeking declaration of validity – Petitioner alternatively seeking declaration of incompatibility – Whether petitioner’s applications misconceived – Matrimonial Causes Act 1973, s 11(c) – Human Rights Act 1998, s 4(2)Civil Partnership Act 2004, ss 1(b), 212, 213, 214, 215, 216, 217, 218.

The petitioner and the first respondent went through a form of marriage, lawful and valid by the law of British Columbia that permitted, and recognised as valid, marriages between persons of the same sex. Upon their return to the United Kingdom, and in advance of the coming into force of the Civil Partnership Act 2004, the petitioner, supported by the first respondent, issued proceedings for declaratory relief. The petitioner applied to the court for it to give effect to s 11(c) of the Matrimonial Causes Act 1973 and s 1(b) and ss 212 to 218 of the 2004 Act in such a manner as to recognise same-sex marriages, lawfully effected in other jurisdictions, as valid in English law. Alternatively, the petitioner sought a declaration, under s 4(2) of the Human Rights Act 1998, that the relevant statutory provisions of the 1973 and 2004 Acts were incompatible with her rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the 1998 Act). The petitioner submitted that the provisions of the 1973 Act and the 2004 Act, which on their face precluded recognition of a marriage between persons of the same sex, amounted to a violation of her Convention rights under arts, 8, 12 and 14. The intervener contended that all forms of relief claimed were essentially misconceived because the statutory provisions were clear and were compatible with the petitioner’s Convention rights.

Held – With a view to according formal recognition to relationships between same-sex couples which had all the features and characteristics of marriage save for the ability to procreate children, and preserving and supporting the concept and institution of marriage as a union between persons of opposite sex and gender, Parliament had taken steps by enacting the 2004 Act to accord to

same-sex relationships effectively all the rights, responsibilities, benefits and advantages of civil marriages save the name, and thereby remove the legal, social and economic disadvantages suffered by homosexuals who wished to form stable long-term relationships. To the extent that by reason of that distinction it discriminated against same-sex partners, such discrimination had a legitimate aim, was reasonable and proportionate, and fell within the margin of appreciation accorded to Convention states. Accordingly, in the instant case, the petitioner’s application for a declaration that her marriage, lawful and valid by the law of British Columbia, was valid under English law, or, alternatively, her application for a declaration that her rights under art 8, 12 and 14 of the European Convention on Human Rights had been violated was dismissed.

Cases referred to in judgment

B v UK[2005] 3 FCR 353, ECt HR.

Bellinger v Bellinger[2003] UKHL 21, [2003] 2 FCR 1, [2003] 2 All ER 593, [2003] 2 AC 467, [2003] 2 WLR 1174, [2003] 1 FLR 1043.

Berthiaume v Dastous [1930] AC 79, [1929] All ER Rep 111, PC.

Botta v Italy (1998) 4 BHRC 81, ECt HR.

Brook v Brook (1861) 9 HL Cas 193, HL.

Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33, [1971] P 83, [1970] 2 WLR 1306.

Cossey v UK (1991) 13 EHRR 622, ECt HR.

Estevez v Spain App No 56501/00 (10 May 2001, unreported), ECt HR.

F v Switzerland (1987) 10 EHRR 411, [1987] ECHR 11329/85, ECt HR.

Fitzpatrick v Sterling Housing Association Ltd[2000] 1 FCR 21, [1999] 4 All ER 705, [2001] 1 AC 27, [1999] 3 WLR 1113, [2000] 1 FLR 271, HL.

Fretté v France[2003] 2 FCR 39, [2003] 2 FLR 9, ECt HR.

Ghaidan v Godin-Mendoza[2004] UKHL 30, [2004] 2 FCR 481, [2004] 3 All ER 411, [2004] 2 AC 557, [2004] 3 WLR 113, [2004] 2 FLR 600, HL.

Gomez v Spain App No 37784/97 (26 January 1999, unreported), ECt HR.

Goodwin v UK[2002] 2 FCR 577, [2002] 2 FLR 487, ECt HR.

Halpern v A-G of Canada [2003] 3 LRC 558, Ont CA.

Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130, [1861-73] All ER Rep 175, Con Ct.

Johnston v Ireland (1986) 9 EHRR 203, ECt HR.

Karner v Austria[2004] 2 FCR 563, [2003] 2 FLR 623, ECt HR.

Lawrence v Lawrence [1985] 2 All ER 733, [1985] Fam 106, [1985] 3 WLR 125, [1985] FLR 1097, CA.

M v Secretary of State for Work and Pensions[2006] UKHL 11, [2006] 1 FCR 497, [2006] 4 All ER 929, [2006] 2 AC 91, [2006] 2 WLR 637, [2006] 2 FLR 56.

Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR.

Mette v Mette (1859) 28 LJP & M 117.

Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs (2005) 20 BHRC 368, ECt HR.

N v Secretary of State for the Home Dept[2005] UKHL 31, [2005] 4 All ER 1017, [2005] 2 AC 296, [2005] 2 WLR 1124.

Niemietz v Germany (1993) 16 EHRR 97, [1992] ECHR 13710/88, ECt HR.

Padolecchia v Padolecchia (otherwise Leis) [1967] 3 All ER 863, [1968] P 314, [1968] 2 WLR 173.

Petrovic v Austria (1998) 4 BHRC 232, ECt HR.

Pretty v UK[2002] 2 FCR 97, ECt HR.

Pugh v Pugh [1951] 2 All ER 680, [1951] P 482.

R (on the application of Anderson) v Secretary of State for the Home Dept[2002] UKHL 46, [2002] 4 All ER 1089, [2003] 1 AC 837, [2002] 3 WLR 1800.

R (on the application of Carson) v Secretary of State for Work and Pensions, R (on the application of Reynolds) v Secretary of State for Work and Pensions[2005] UKHL 37, [2005] 4 All ER 545, [2005] 2 WLR 1369.

R (on the application of Ullah) v Special Adjudicator, Do v Secretary of State for the Home Dept[2004] UKHL 26, [2004] 3 All ER 785, [2004] 2 AC 323, [2004] 3 WLR 23.

R v A[2001] UKHL 25, [2001] 3 All ER 1, [2002] 1 AC 45, [2001] 2 WLR 1546.

Rees v UK[1993] 2 FCR 49, ECt HR.

S (minors) (care order: implementation of care plan), Re[2002] UKHL 10, [2002] 1 FCR 577, [2002] 2 All ER 192, [2002] 2 AC 291, [2002] 2 WLR 720.

Salgueiro da Silva Mouta v Portugal[2001] 1 FCR 653, ECt HR.

Shackell v UK (App no 45851/99) (27 April 2000, unreported), ECt HR.

Sheffield v UK (1998) 5 BHRC 83, ECt HR.

SL v Austria (2003) 37 EHRR 39, ECt HR.

Smith v UK (2000) 29 EHRR 493, [1999] ECHR 33985/96, ECt HR.

Stec v UK (2006) 20 BHRC 348, ECt HR.

Van der Mussele v Belgium (1984) 6 EHRR 163, [1983] ECHR 8919/80, ECt HR.

Van Oosterwijck v Belgium (1980) 3 EHRR 557, [1980] ECHR 7654/76, ECt HR.

Vervaeke v Smith (Messina and A-G intervening) [1982] 2 All ER 144, [1983] AC 145, [1982] 2 WLR 855, HL.

Wandsworth London BC v Michalak[2002] EWCA Civ 271, [2002] 4 All ER 1136, [2003] 1 WLR 617.

Zapata v Spain App No 3465/97.Application

The petitioner, Susan Wilkinson, who married another woman under British Columbian law, sought a declaration as to her marital status under s 55 of the Family Law Act 1986. The facts are set out in the judgment.

Karon Monaghan and Ruth Kirby (instructed by Liberty) for the petitioner.

The first respondent appeared in person.

Helen Mountfield (instructed by the Treasury Solicitor) for the Attorney-General.

SIR MARK POTTER P.INTRODUCTION

[1] In these proceedings, the petitioner Susan Wilkinson seeks a declaration as to her marital status under s 55 of the Family Law Act 1986.

[2] 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.

[3] 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.’

[4] 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 s 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 arts 8, 12 and 14 (taken together with art 8 and /or art 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 s 1(1)(b) and Ch 2 of Pt 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 s 4 of the Human Rights Act 1998.

THE POSITION OF THE PETITIONER AND THE FIRST RESPONDENT

[5] 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...

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3 cases
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    • Court of Appeal (Civil Division)
    • 21 Febrero 2017
    ...to set out extracts from the illuminating speeches of Lord Nicholls, Lord Mance or Lady Hale. 57 Likewise, Mr Squires relies on Wilkinson v Kitzinger [2007] I FLR 295. Mr Squires submits that, unlike the same-sex couple in Wilkinson, the appellants can enter into a marriage. They cannot arg......
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    ...was decided by Sir Mark Potter, President of the Family Division, in Wilkinson v Kitzinger and another (No 2) [2006] EWHC 2022 (Fam), [2007] 1 FCR 183, a case in which a same-sex couple who were lawfully married in Canada unsuccessfully contended that the statutory provisions of the Matrim......
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    • 17 Agosto 2017
    ...are of the same sex. [13] This submission was resisted by Ms Quinlivan, in part on the basis of the decision in Wilkinson v Kitzinger [2007] 1 FCR 183. That case involved an application 5 by a woman who had entered into a same sex marriage in Canada but had then returned to live in the Unit......

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