Same-sex marriages validated
Same-sex couples who tied the knot before a landmark Privy Council ruling outlawed gay unions are valid under new laws.
The Domestic Partnership Amendment Act, which was passed by MPs in the House of Assembly on Friday, extended the transitional period during which same-sex marriages could be carried out.
Walter Roban, the Deputy Premier and Minister of Home Affairs, said the Bill would validate the marriages in light of a ruling handed down by the island’s highest court of appeal in March.
Privy Council judges at the time found that the Domestic Partnership Act — which confined marriage to between a man and a woman — was not unconstitutional.
The verdict meant that couples who had married during a period when the weddings were allowed were in a state of limbo.
On Friday Mr Roban sought to clarify the law.
He said: “The Bill seeks to extend the transitional period under Section 54 of the Domestic Partnership Act 2018 to March 14, 2022 to confirm the validity of same-sex marriages formalised according to the laws of Bermuda prior to the date of the Privy Council judgment.
“And, secondly, to recognise certain same-sex marriages formalised overseas during the extended transitional period.”
Mr Roban said that the law as it had stood meant that same-sex marriages were “void”.
The minister said that the Bill 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.
However, 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.
Subsequently, the Court of Appeal also ruled that the Act was unconstutional and lifted the stay, meaning same-sex marriages could occur.
But Mr Roban added: “On May 14, 2022, the Privy Council overturned the decision of the Court of Appeal was not unconstitutional.
“The uncertainty over the validity of same-sex marriages has potentially a widespread negative effect on the rights previously enjoyed by couples who were married lawfully under the law as it existed at the time.
“It is therefore not tenable to leave the Act as it is without making appropriate amendments.”
The Bill was backed by Opposition MPs.
Scott Pearman, Shadow Minister of Legal Affairs, said: “ This is an important issue for our community and the equality of treatment.
“The One Bermuda Alliance is pleased to see the Deputy Premier stepping up to correct the flaw in Section 54.
“The fact that same-sex marriages occurred when they were following the law of the land as it stood at the time — and rightly so — therefore it is only right that it is being formally recognised by the legislature today.
“Today is only one step, but it is the right step.”
Mr Roban said he appreciated the support for the amendment.
“This Government’s desire has always been that the rights of people are respected,” he said. “That is why we have a framework that recognises rights that people are entitled to, and to try to fairly address those rights.”
The OBA then called for a vote on the motion, which was supported by all six Opposition MPs and 20 of the 30 ruling Progressive Labour Party MPs. Nine PLP MPs did not vote, although Wayne Furbert had declared he would be absent all day. The other eight were: Wayne Caines, Zane DeSilva, Curtis Dickinson, Lovitta Foggo, Tinée Furbert, Renée Ming, Kim Swan and Jason Wade.