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Advocacy News - A British marriage made in Canada

June 1, 2021

A British marriage made in Canada
Equal marriage case comes to U.K. High Court

By Sue Wilkinson and Celia Kitzinger

We thought that readers might like an update on our equal marriage case, first reported here when we launched it last summer.

We're the British lesbian couple who married in British Columbia in August 2003, following the historic decisions of the Canadian courts to open up marriage to same-sex couples, and who are seeking a declaration of the validity of our marriage in the UK.

For the first two years of our marriage, our relationship had no legal recognition at all in our home country - unlike the marriage of any heterosexual couple married overseas, which would automatically have been recognised in Britain. Then, in December 2005, with the implementation of the new Civil Partnership Act, our marriage was automatically - without our consent, and against our wishes - converted by the state into a civil partnership.

Civil partnerships are an enormously important step forward for lesbian and gay rights. But civil partnership is a different institution from marriage - a separate institution for same-sex couples only, while marriage is reserved for different-sex couples only. This maintains a symbolic separation of lesbians and gay men from 'normal' society, sending out the inescapable message that our relationships are not worthy of recognition through marriage. This discrimination is demeaning and unjust. Separate is not equal - as the Canadian courts affirmed.

Our case is fundamentally about equality. We simply want to be treated the same way as any heterosexual couple who marries abroad - to have our valid Canadian marriage recognised as a marriage in our home country.

With the support of the national human rights organization, Liberty, we are going to the High Court to seek a declaration of the validity of our marriage - as a marriage, not as a civil partnership. Our lawyers will argue that any failure to recognise the validity of our marriage constitutes a breach of our rights under the European Convention on Human Rights. They will argue specifically that it breaches Articles 8, 12 and 14 (the right to respect for private and family life, the right to marry, and the prohibition of discrimination).

The High Court judge who has considered the case said in his interim ruling (12 April 2021): "I consider that there is sufficient material available for an argument based on principle ... that the requirement of the Civil Partnership Act that a marriage between same-sex partners abroad must, on registration, be treated as a civil partnership and not a marriage, is on the face of it discriminatory on the grounds of sexual orientation" (Wilkinson v. Kitzinger, Her Majesty's Attorney-General & The Lord Chancellor). Winning our case could establish that the human rights to respect for private and family life and to marry apply equally to lesbians and gay men - not just to heterosexuals.

This is an important challenge to a legal system that has never yet extended either the right to respect for private and family life nor the right to marry to same-sex couples. Although our case calls for the government's recognition of our valid overseas marriage, it has far-reaching implications for lesbian and gay equality and human rights more generally across Europe - and the world.

Our case comes to the High Court beginning 6 June 2006, and we will be posting media reports and regular updates on our own website.

We welcome messages of support!