A particular problem to be considered in drafting equal civil marriage legislation is the fact that whatever arrangements are made for the UK, same-sex marriages performed here will not be recognised in most countries of the world. In today’s highly mobile society, that potentially creates serious difficulties for same-sex couples. Essentially these are the same as those that arise under the Civil Partnership Act 2004 (the 2004 act), and the solutions adopted there should be extended to the new regime for same-sex marriage.
Unfortunately, however, problems have arisen in practice which were not anticipated when civil partnership was introduced, and changes have been made or proposed to the civil partnership legislation which ignore the international element. The simplest case is that of divorce. When same-sex marriage was introduced in Canada, many American couples got married there only to discover later that they could not get divorced where they lived in the US because their marriage was not recognised there, nor could they get divorced in Canada without fulfilling Canadian residence requirements. This problem was avoided in the UK under section 221 of the 2004 act, which provides potentially for the English courts to have jurisdiction to dissolve any civil partnership entered into in England or in a British consulate under English law.
This article focuses on the more troublesome case of the death or disappearance overseas of a civil partner or same-sex spouse. Unlike the position in the UK, in many countries the registry of births and deaths is not open to the public. In Malaysia, for example, only immediate family members may obtain death certificates directly from the registry. Other persons must apply through a solicitor, who must furnish reasons satisfactory to the authorities as to why the death certificate is required. Civil partnerships and same-sex marriages are not recognised under Malaysian law, so a British civil partner or same-sex spouse would not be able to obtain a death certificate for his/her partner/spouse directly from the Malaysian Registry.
As homosexuality is a criminal offence under Malaysian law, it would be inadvisable for the surviving civil partner or spouse to state his or her true relationship with the deceased when applying through a solicitor to obtain a death certificate. Obviously this creates a difficulty in supplying a reason satisfactory to the authorities for the issue of the death certificate. Where it is not possible to obtain a foreign death certificate at all, the surviving partner’s only recourse may be to apply to the English courts for a presumption of death order under the 2004 act.
This is considered further below. Where a foreign death certificate has been obtained, a practical difficulty occurs should this document be mislaid or should further death certificates be required. Where the deceased was a British national, this problem can be avoided by registering the death with the Foreign and Commonwealth Office or with the British consular authorities overseas, but this can only be done where the foreign death certificate can be produced. See the commonwealth office's site. The advantage of this procedure is that a British-style death certificate will be issued and a permanent record kept at the General Register Office in the UK, where further death certificates can be obtained.
Where the deceased was not a British national, there is currently no way to obtain further death certificates except by applying again to the foreign authorities with all the difficulties that may involve. There is potentially a very simple solution to this problem, which would be for the UK General Register Office to accept the deposit of foreign death certificates of civil partners or spouses of British citizens. Currently, the General Register Office in the UK does accept the deposit of foreign same-sex marriage certificates or foreign civil partnership certificates where one of the spouses or partners is a British citizen (2004 act, section 241).
This would therefore be only a slight extension of existing practice, but it would require legislation. Particular difficulties occur where a couple lives overseas and one goes missing. It is worth drawing attention particularly to this case because it appears to have been overlooked in the Presumption of Death Act (Northern Ireland) 2009 and in the Presumption of Death and Provisions Relating to Missing Persons Bill, which was introduced in the House of Lords on 14 May 2012 by Baroness Susan Kramer.
As mentioned above, the problem is that UK civil partnerships (and same-sex marriages, should these be introduced) are recognised by very few foreign countries. As an example, suppose A and B enter into a civil partnership in England (or in a British consulate overseas under English law), but live in a country (e.g. Singapore), which does not recognise civil partnerships. A then goes missing. In these circumstances, since they do not recognise the relationship between A and B, the Singapore courts will not grant B an order stating that A is presumed to have died, nor will they grant a decree of dissolution of the civil partnership.
This problem was anticipated when the 2004 act was drafted. Section 222(c) provides that the English courts may grant a presumption of death order, which has the effect of dissolving the civil partnership, where the two people concerned registered as civil partners in England, if it is in the interests of justice for the courts to assume jurisdiction. By virtue of section 210(5), the same applies where the couple registered their civil partnership in a British consulate overseas under English law.
Unfortunately, the Presumption of Death and Provisions Relating to Missing Persons Bill 2012 follows the Northern Ireland legislation by proposing to repeal section 222 of the 2004 act. If enacted, this would place someone like B in a very difficult position, should A go missing. The Singapore courts will not grant a presumption of death order in respect of A. The English courts would no longer be able to do so, unless B could show (as required by section 1 of the bill) that he or she was domiciled in England or that his or her civil partner was. Domicile is a very nebulous concept in law and it can be difficult to establish where a person is domiciled. There are also cases of foreign couples from countries which do not recognise civil partnerships, who have taken advantage of the 2004 act to enter into civil partnerships in England, even though they do not live in England and are not domiciled here.
What this means in practice for B is that it would be difficult for him or her to enter into another civil partnership or get married again. It would not be possible in the UK, as the civil partnership with A is still in existence. If B is a British citizen, it would be extremely difficult for him or her to do so in any foreign country, as most countries insist on the production of a certificate of no impediment to marriage from the home country before allowing a foreigner to get married or enter into a civil partnership. The British authorities would not be able to issue B with a certificate of no impediment to marriage, given the continued existence of the civil partnership with A.
In these circumstances, the only solution for B would appear to be to wait five years and then apply to the English courts for a 'divorce' from A (i.e. dissolution of the civil partnership) on the grounds of separation without consent. Needless to say, this is not a satisfactory way of dealing with the problem. The issue of presumption of death orders for same-sex married couples living overseas should obviously be addressed specifically in the equal civil marriage legislation. Given the difficulties in obtaining a death certificate where a same-sex spouse dies overseas, it is particularly important to enable the surviving spouse to obtain a presumption of death order from the English courts.
Barry Crown , an English solicitor, is associate professor in the Faculty of Law of the National University of Singapore