Same-sex marriages carried out before landmark decision will remain valid, says Roban
Same-sex couples who married before a landmark Privy Council judgment will have certainty that their nuptials remain valid if legislation tabled in the House of Assembly yesterday is passed.
Walter Roban, the Deputy Premier and Minister of Home Affairs, said that the Domestic Partnership Amendment Act 2022 would extend a transitional period in light of the ruling handed down by the island’s highest court of appeal in March.
Privy Council judges then found four to one that the Domestic Partnership Act – which confined marriage to between a man and a woman – was not unconstitutional.
Mr Roban told MPs: “The uncertainty over the validity and recognition of same-sex marriages potentially has widespread negative effect on the rights previously enjoyed by the couples involved who were married lawfully under the law as it existed at the time and who may suffer the loss or interruption of certain rights and benefits.
“It is therefore not tenable to leave the Act as it is without making the appropriate amendments.”
He explained: “Section 53 of the principal Act provides that a marriage is void unless the parties are respectively male and female.”
The minister said that the Act also allowed for a transitional period when certain same-sex marriages entered into on the island or on Bermuda-registered ships would be valid, and “before or during which certain overseas same-sex marriages could be recognised” on the island.
MPs heard that the transitional period was from May 5, 2017 – when a Supreme Court decision paved the way for same-sex marriage – until immediately before the commencement date of the DPA on June 1, 2018.
Mr Roban explained that on June 6, 2018, Ian Kawaley, then the Chief Justice, ruled in the Supreme Court that section 53 of the Act was unconstitutional, but his judgment was stayed pending appeal.
He said: “On November 23, 2018, the Court of Appeal upheld the Supreme Court decision – though on different grounds – and refused to extend the stay previously granted by the Supreme Court.
“Consequently, from that date same-sex marriages conducted in Bermuda and on Bermuda-registered ships were not invalidated by section 53, and certain overseas same-sex marriages could be recognised in Bermuda.”
But Mr Roban added: “On March 14, 2022, the Privy Council overturned the decision of the Court of Appeal and determined that section 53 was not unconstitutional.
“This cast doubt on the validity of same-sex marriages conducted in Bermuda or on Bermuda-registered ships since June 1, 2018, and the recognition in Bermuda since that date of overseas same-sex marriages.”
He said: “The intention of these proposed amendments is to extend the transitional period to March 14, 2022 to confirm the validity of same-sex marriages formalised according to the law of Bermuda prior to the date of the Privy Council judgment and to recognise certain same-sex marriages formalised overseas during the extended transitional period.”
After the legislation was tabled, the LGBTQ campaign group OutBermuda said: “While we wish that Bermuda was in a different place with equal marriage for all, we are grateful that those married couples that have been in limbo these past three months have certainty on the validity of their marriages under the law.”
Scott Pearman, the Shadow Minister of Legal Affairs, said the One Bermuda Alliance was pleased to see the Government confirming the legal status of same-sex couples whose marriages were “left in limbo” by the Privy Council decision.
He added: “After the OBA called for the Government to clarify the legal position, Minister Roban today tabled legislation to confirm the validity of relevant marriages occurring between the introduction of the Progressive Labour Party’s Domestic Partnership Act in 2018 and the Privy Council’s 2022 decision.”
Mr Pearman said that the move announced in Parliament today "will no doubt bring relief“ to the couples affected.
He added: "It would be unconscionable for any existing, valid marriage to be voided.
"It is right that the legal position is now being confirmed by the Government for all those who observed the law of the land as it stood at the relevant time.
"It is regrettable that people will have experienced anxiety over an issue so important to their lives.
“This new law should give all necessary assurances.”
It is understood that by mid-March, there had been 33 same-sex marriages on the island since 2017 and ten on Bermuda-registered ships.
The Bill tabled today said that any notice of a same-sex marriage given after March 14, 2022, would “be treated as a notice of an intended domestic partnership or maritime domestic partnership”.
It is likely to be debated by MPs at the start of next month.
The Bill said: “This Act shall be deemed to have come into effect on March 14, 2022.”
* This article has been updated to include a comment from OutBermuda.
* To read the minister’s statement in full, click on the link under “Related Media”.