The Marriage (Same Sex Couples) 2013 entered into force in England and Wales on Saturday 29th March 2014. Much publicity was give to this move which puts England ahead of many other countries in the developed world. The media immediately relished the opportunity to show same sex couples in viewing their nuptial festivities. From a legal perspective however, the Act creates a number of difficulties, particularly from an international viewpoint, because same sex marriage is not recognised in all countries outside of Britain.

A classic example of the kind of difficulties faced by international practitioners is, for example, when an Anglo-Australian couple are married here and then move to Australia. Under the current Australian legislative regime, it would not be possible for their marriage to be recognised as being valid. Whilst it is possible that some recognition might be given to a prenuptial signed by the couple before their wedding, the couple would have real difficulty in sorting out their marital status if they ever decided to live in Australia. Similarly, if the same sex marriage did break down, and the parties had lived in Australia for some time, there would be difficulties in establishing whether or not the Australian Court ever, in fact, had jurisdiction or could have jurisdiction.

An example of another dilemma would be if an Italian couple were married here after living in this country on a short term basis. Prior to moving here, they signed a prenuptial agreement in Italy (where same sex marriage is not legal) and declared their domicile (ie their habitual links) to be Italy. It could then be entirely questionable whether any same sex marriages they enter into is valid, unless they can actually prove to the Court that they altered their domicile on moving to England.

At the moment there are few clear cut answers to the dilemmas I have set out in this blog. However, as with all family law, every case is fact-specific and it is essential to obtain specialist advice before entering into same sex partnership and/or the same sex partnership breaks down.

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