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Legally Speaking: Same-sex marriage: The legal position in Bermuda

Bermuda residents who have entered into same-sex marriages or civil unions/partnerships in foreign jurisdictions where these are permitted should be aware that such unions will not be recognised in Bermuda.

Neither our Constitution nor our Human Rights Act presently provides for protection under the law in respect of one’s sexual orientation or changes in gender. The present Government stated last month that its proposed amendment to the Human Rights Act will be restricted to only prevent discrimination in the areas of provision of goods, services and accommodation.

This proposed amendment will not have any impact on the recognition of same-sex marriage or transsexuals in Bermuda.

Bermuda law provides that a marriage is void if the parties were not, respectively, male and female.

Consequently, same-sex couples in Bermuda will not share in the success of petitioners in Europe and North America who based their court applications on non-discriminatory provisions in their country’s constitutions, human rights acts and applicable international conventions.

For example, in Canada, the court found that the legal definition of marriage as being between “one man and one woman” violated the equality rights of the applicants and reformulated the definition of marriage in Canada as “the voluntary union for life of two persons to the exclusion of all others”.

There was a similar case on this point in the United Kingdom (UK) with a different outcome. The UK court refused to recognise a foreign same-sex marriage of a British-domiciled couple on the basis that there was insufficient discrimination for the court to intervene.

The British same-sex couple entered into a lawful and valid marriage in a foreign jurisdiction (Canada) and their relationship was regarded in English law as a civil partnership but not a marriage.

The UK court’s decision was based on the premise that the UK law’s discriminatory treatment of recognising foreign marriages of opposite-sex couples, but not foreign marriages of same-sex couples, was legitimate and proportionate.

This was due to UK law according same-sex couples formal recognition under its Civil Partnership Act, which had all the features and characteristics of marriage, while preserving and supporting the concept and institution of marriage as a union between persons of the opposite sex.

The UK court claimed this removed the legal, social and economic disadvantages suffered by same-sex couples who wished to join in stable long-term relationships and therefore did not constitute a breach of the British same-sex couple’s rights under the European Convention on Human Rights (the Convention).

Because Bermuda law does not provide for same-sex civil partnerships, this leads to the irresistible conclusion — from the reasoning of the UK court’s judgment — that Bermuda law is discriminatory, illegitimate and disproportionate as it recognises an opposite-sex couple’s foreign marriage but not a same-sex couple’s foreign marriage.

What about transsexual couples then? Transsexual couples can marry and have their foreign marriages recognised in the UK but not in Bermuda.

UK law now recognises that the gender of a person registered at birth can be “reassigned” after a medical operation and that the traditional determination of gender at birth on purely biological criteria is too restrictive.

For example, a post-operative male to female transsexual, who lived in a relationship with a man and who only wished to marry a man, had no possibility of doing so under the old UK law.

Subsequently, the European Court of Human Rights ruled that the very essence of her right to marry under the Convention had been infringed and found that there was no justification for the UK barring the transsexual from enjoying the right to marry.

The present difference between UK and Bermuda law is that although the Convention was applied to Bermuda by the UK after it was signed, no domestic legislation has been passed to specifically implement the Convention into Bermuda law.

Therefore, the Convention does not have the force of law to be applied by the Bermuda courts.

Because neither our Constitution nor our Human Rights Act presently provides for protection under the law in respect of one’s sexual orientation, a petition to the Supreme Court of Bermuda for recognition of a same-sex or a transsexual couple’s foreign marriage clearly would not be successful.

The legal recognition of same-sex and transsexual marriages in Bermuda present enormous legal issues to the courts and are probably beyond judicial resolution as the law presently stands.

Problems of great legal complexity would be involved if judicial recognition were to be given to such marriages. The Bermuda courts will most likely take a pass on such a challenge and fall back on their traditional position that such difficult social issues must be left to Parliament to resolve.

Accordingly, as Bermuda law presently stands, same-sex and transsexual couples who have ‘married’ or entered into a civil union or partnership abroad will find themselves in the same legal position as common law opposite-sex couples — that such unions are not recognised in Bermuda.

The conflict of laws, where what is legal abroad but is not permitted in Bermuda, can have wide-ranging implications in estate-planning.

Such difficulties can only be overcome by same-sex and transsexual couples entering into formal arrangements, such as jointly purchasing their home, as well as preparing reciprocal Powers of Attorney and Wills to govern their respective legal positions before and on death.

Attorney Michael Mello QC is Counsel with the Private Client and Trusts Practice Group at Appleby (Bermuda) Limited. A copy of Mr. Mello’s column can be obtained on the Appleby website at www.applebyglobal.com.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.

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Published April 18, 2013 at 9:00 am (Updated April 17, 2013 at 8:42 pm)

Legally Speaking: Same-sex marriage: The legal position in Bermuda

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