What should be the necessary connection, jurisdiction, should a country have with a couple in order to deal with a same sex divorce?
Should it be the same for heterosexual divorce? Yes of course as it is all the same concept of marriage and there should be no discrimination.
But and it is a big but, although almost all countries in the world have heterosexual divorces, still only a limited number have same sex marriages and therefore permit same sex divorces. So, a same sex married couple resident in a different to the country where they got married may be able to get a divorce. This is now occurring more often as more countries have same sex marriages.
England has overcome this problem in a way which is very new and different in international jurisdictional terms. I’m not sure which other countries have the same law if any.
What is the scenario?
A same-sex civil partnership or same-sex marriage occurs in England and later the couple want a dissolution or divorce, when they are now both living abroad. Yet their country of residence does not grant same-sex divorces, probably because they don’t recognise same-sex marriage. But England has no ongoing connection, jurisdiction, with the couple. So it cannot give them a divorce nevertheless in this particular situation England retains the power to grant a dissolution or divorce simply because the civil partnership or same-sex marriage occurred in England. It is not available to heterosexual marriages.
English Civil Partnerships
In England a civil partnership is only available to same-sex. It was introduced in 2004 at a time when we had no same-sex marriage. It was regarded as equivalent to marriage. Apart from the orthodox basis of jurisdiction, similar to divorce, there was an additional basis to section 221.1.3 civil partnership Act 2004. This says, in terms, that if there has been a civil partnership occurring in England and Wales and no court abroad has jurisdiction (power) to dissolve the civil partnership and, crucial words, it appears to the court to be in the interests of justice to assume jurisdiction in the case, then England has jurisdiction. It can dissolve the civil partnership entered into in England even though neither have any ongoing connection with England. This was always necessary because there were then relatively few countries around the world with civil registered same-sex partnerships.
Same Sex Marriages
When England allowed same-sex marriage, the same provision was applied, although it had very little publicity. It is found in Sch 1A para 2.1.2, Domicile and Matrimonial Proceedings Act 1973, as amended by the marriage (Same-Sex Couples) Act 2013.
So where there has been a same-sex marriage in England, but there is no ongoing connection with England and no power for the couple to get divorced in the countries with which they have a connection, the English courts nevertheless can still grant a divorce in England. The test is the interests of justice. England is very liberal country in respect of recognition of foreign marriages and divorces and avoiding so-called limping marriages. I would therefore be very surprised if England did not accept jurisdiction to grant a divorce in these circumstances.
I believe it’s not available to heterosexual marriages where there is no other jurisdiction for divorce here. So for example a couple married in England and now living in a country which does not allow divorce, and there are still a couple around the world, could not get divorced here. A couple married here and living in a country where the English marriage was not recognised, rare but still occasionally occurring, could not get divorced here. Perhaps it is time for the law to be changed so that heterosexual marriages have the same rights as same-sex marriages?
The EU race to court
Still in the international context, another interesting aspect arises. If two or more EU member states have jurisdiction for heterosexual divorce, jurisdiction lies with whoever is fastest to commence proceedings, and so gain the favourable outcome. It is the so-called race to court which many of us have condemned but some in the UK want to retain post Brexit. This doesn’t apply to same-sex divorces around the EU. For England it is simply which is the closest connection, forum conveniens.
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