Wilkinson v Kitzinger & Ors

English law did not recognise a foreign same-sex marriage as a marriage where the parties lacked capacity under their ante-nuptial domicile law. The Civil Partnership Act 2004 provided an equivalent legal status, but deliberately preserved the distinct name and status of marriage.

The refusal to recognise same-sex marriage did not breach Articles 8 or 12 of the Convention. For Article 14, the distinction fell within the ambit of Article 12, but pursued a legitimate aim and was reasonable and proportionate. The court could not use section 3 of the Human Rights Act 1998 or develop the common law to contradict the fundamental structure of the legislation. The petition was dismissed.

Susan Wilkinson and Celia Kitzinger, both domiciled in England, underwent a marriage ceremony in British Columbia on 26 August 2003. Their relationship was lawful and valid under British Columbia law. They sought a declaration under the Family Law Act 1986 that the marriage was valid in England and Wales.

They alternatively sought a declaration of incompatibility concerning section 11(c) of the Matrimonial Causes Act 1973, the relevant provisions of the Civil Partnership Act 2004, and their Convention rights under Articles 8, 12 and 14. The central issues were whether English private international law permitted recognition, whether the legislation could be read compatibly with the Convention, and whether the statutory scheme was discriminatory.

1. Petition dismissed. The parties’ capacity to marry was governed by English law because both were domiciled in England. Under the ordinary rules of private international law, a foreign marriage was not recognised where the parties lacked capacity under English law.
2. The common-law definition of marriage as the union of one man and one woman had statutory force through section 11(c) of the Matrimonial Causes Act 1973. Section 14 preserved the application of private international law to foreign marriages. The statutory scheme therefore prevented recognition of the Canadian ceremony as an English marriage.
3. Section 3 of the Human Rights Act 1998 required legislation to be interpreted compatibly with Convention rights so far as possible. Following Ghaidan v Godin-Mendoza [2004] 2 AC 557, that obligation could require a departure from ordinary meaning. It could not, however, justify an interpretation inconsistent with a fundamental feature of the legislation or amounting to judicial legislation. If compatibility was impossible, section 4 was the appropriate route.
4. Article 12 protected the traditional right of a man and a woman to marry, subject to national law. Goodwin v UK (2002) 35 EHRR 447 concerned recognition of reassigned gender and did not extend Article 12 to same-sex marriage. The domestic court was required by section 2 of the Human Rights Act 1998 to take Strasbourg jurisprudence into account and to keep pace with it, but not to enlarge the Convention beyond its present interpretation.
5. Article 8 protected private life and, in some circumstances, required positive measures. It did not require the State to create a particular legal status or to recognise a childless same-sex relationship as a marriage. The Civil Partnership Act 2004 provided substantially equivalent legal rights while preserving the distinct institution of marriage.
6. The difference in treatment based on sexual orientation fell within the ambit of Article 12 for Article 14 purposes because Parliament had legislated to alleviate the disadvantages of same-sex relationships. Nevertheless, preserving marriage as an opposite-sex institution and providing an equivalent civil partnership were legitimate aims. The resulting distinction was appropriate, proportionate and within the State’s margin of appreciation.
7. The court refused to develop the common law or modify the private-international-law rules to achieve recognition. Such a course would contradict section 11(c), the clear statutory policy of the Civil Partnership Act 2004, and English public policy.

First-instance decision of the High Court (Family Division). The judgment records no prior appellate decision in this litigation.