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Married same-sex couples left in limbo over Privy Council ruling

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Bermuda’s Pride march in 2019 (Photograph by Blaire Simmons)

Same-sex couples who tied the knot before the Privy Council’s decision to back the Government’s ban on marriage equality are still languishing in legal limbo more than two months after the landmark ruling.

The Government has failed to clarify the position of the couples — despite the long run-up to the island’s highest court of appeal handing down its judgment.

Scott Pearman, the shadow home affairs minister, branded the state of affairs “shocking” and warned that voiding such marriages would be “unconscionable”.

After the Privy Council decision on March 14, Walter Roban, the Minister of Home Affairs, said the Government would take legal advice on whether same-sex marriages that had already happened would be voided.

However, nine weeks later, same-sex couples who married after the passing of the Domestic Partnership Act in 2018 still do not know where they stand.

Mr Pearman, a One Bermuda Alliance MP, said: “It is truly shocking that the Burt administration is considering dissolving perfectly legal marriages that were entered into before the Privy Council’s decision in March.

“Voiding an existing, valid marriage would be unconscionable. People follow the laws of the land as they stand at the time.

“Bermuda’s law permitted these marriages. It would be nonsensical to dissolve these marriages after the fact.

“It is also contrary to what our law provides, as the Privy Council expressly observed in the board’s judgment.

“Minister Walter Roban said back in March that he was taking legal advice on this issue. Let us hope the minister has now been advised that voiding existing and valid marriages would be both unconscionable and illegal.”

A government spokesman told The Royal Gazette: “The Ministry of Home Affairs will inform the public of any further developments regarding the Privy Council ruling in due course.”

The only official guidance on the implications of the ruling comes via a notice on the Government website’s Registry General section regarding same-sex marriages not finalised by the day of the Privy Council announcement.

It reads: “The effect of the Privy Council judgment is that if the marriage ceremony was not completed before March 14, 2022 then the marriage cannot be lawfully processed.”

When the ruling was handed down, the home affairs minister claimed the Domestic Partnership Act, which confined marriage to between a man and a woman, provided the same rights as the more traditional institution.

The minister said at the time: “We are reviewing the judgment and we will consider what steps will be taken to normalise the legislation if needed, and we will listen to our legal advisers and chambers as to what steps should be taken.”

Mr Roban said that he did not think that domestic partnerships were inferior to marriage.

“What I do believe is that the Domestic Partnership Act affords the same equal rights and privileges for persons who enter into domestic partnership who are same-sex or who are not same-sex, [as] for those who wish to choose the institution of marriage,” he added.

“It creates a same legal support obligation for their union.

“They have equal rights, they have equal opportunity. It’s the label that’s different.”

Scott Pearman is the Shadow Minister of Home Affairs (File Photograph)

Human rights campaigner Peter Tatchell, who has been praised across the political spectrum for his direct action against dictators such as Robert Mugabe and his condemnation of Vladimir Putin, dismissed Mr Roban’s comments.

Mr Tatchell told The Royal Gazette he would lead protests against Bermuda’s “homophobic” government at this summer’s Commonwealth Games in Birmingham, England.

He said after the Privy Council ruling: “Britain has backed a homophobic government in Bermuda.

“Any government that doesn’t support the rights of LGBTQ people is homophobic.”

Referring to Mr Roban’s remarks, he said: “Separate laws are not equal laws – that is the logic of the apartheid government in South Africa because they legislated separate laws for Black and White people.

“This is outrageous for a supposedly democratic country in the 21st century.”

It emerged in February that the Government had spent $411,627 on outside lawyers and law firms on the various same-sex marriage court cases.

Privy Council judges found four to one in favour of the Government’s appeal against a Court of Appeal ruling that a section of the DPA was included for a religious purpose, which was barred under Bermuda’s secular constitution.

Four out of five judges on a Privy Council panel agreed with the Attorney-General of Bermuda and ruled that the Domestic Partnership Act did not violate the Constitution.

Lord Sales reached a different conclusion to the majority and said that he would have dismissed the appeal based on a freedom-of-conscience argument put forward by lawyers for the respondents, who were Roderick Ferguson and others.

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Published May 16, 2022 at 7:55 am (Updated May 16, 2022 at 1:31 pm)

Married same-sex couples left in limbo over Privy Council ruling

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