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Attorney: Only a law will validate status of same sex marriages

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City Hall lit up in the colours of the rainbow flag (Photograph by Akil Simmons)

Rapid action is needed to validate the status of same-sex couples who tied the knot before the Privy Council backed the Government’s ban on marriage equality, a legal expert has said.

Peter Sanderson, a barrister with experience in several constitutional law cases, said a change in the law would be necessary to ensure same-sex marriages entered into between the Supreme Court ruling on the matter and the Privy Council’s decision to uphold the Government’s stance are recognised in law.

Despite more than two months passing since the Privy Council handed down its much anticipated ruling on March 14, the Government has been vague on when it will clarify the status of marriages that took place after the Domestic Partnership Act 2018 came in.

Mr Sanderson told The Royal Gazette: “I believe it is highly likely that those marriages have already become voided, as the Privy Council has merely confirmed that a marriage in Bermuda is void if not between one man and one woman.

“This means that urgent action is needed from government to pass a law affirming that SSMs entered into between the Supreme Court decision and the Privy Council decision are valid and accepted.

“A law is needed to achieve this - not opinions, not guidance, not political statements. Only a law passed by parliament can provide the proper legal effect and certainty to answer this question.”

Mr Sanderson said failure to act to clarify the situation would lead to problems for the more than 30 couples in this situation in Bermuda.

The legal expert said: “Otherwise those two-dozen or so couples will be living in a state of complete uncertainty over the status of their marriage, which will end up having various very unpleasant side effects.

“It could also result in a further set of legal proceedings to resolve the question of whether those particular marriages are valid or not if government does not clarify this by way of legislation.”

The call comes after the One Bermuda Alliance called the situation “shocking” and urged the PLP Government to act on the issue.

Peter Sanderson (File Photograph)

Scott Pearman, the shadow home affairs minister, insisted it would be “unconscionable” if such marriages were voided.

As things stand, 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.”

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 17, 2022 at 7:49 am (Updated May 17, 2022 at 7:49 am)

Attorney: Only a law will validate status of same sex marriages

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