Will Bermuda Recognize Same Sex Partnerhsips
Michael J. Mello, Q.C., J.P., T.E.P. · November 2nd, 2007
As with “common law marriages”, there is presently no provision for the legal recognition of same sex couples under Bermuda law. Even though same sex couples have no legal recognition in Bermuda, other countries have done so. Denmark introduced registered partnerships in 1989 for same sex couples and since then a number of other countries have introduced similar regimes including the United Kingdom, the Netherlands, Belgium, Germany, France, Spain, Hungary, Slovenia, Andorra, Australia and New Zealand. In North America, challenges in the courts of various states of the US and Canadian provinces based on non-discriminatory articles in their constitutions, led to the introduction of similar regimes as those found in Europe.
Is it likely the Bermuda Supreme Court would recognize the foreign marriage or civil partnership of a same sex couple? Presently Bermuda law provides that a marriage is void if the parties were not respectively male and female. As our law presently stands, it is unlikely that same sex couples, subject to Bermuda law, will share in the success of those petitioners in North America who based their court applications on non-discrimination provisions in their country’s Constitutions, Human Rights Acts and applicable international conventions. There has been a recent case on this point in the United Kingdom, where the UK Court refused to recognize a foreign same sex marriage of a British domiciled couple on the basis that there was insufficient discrimination for the court to intervene. The British same sex couple entered into a lawful and valid marriage in a foreign jurisdiction and their relationship was regarded in English law as a civil partnership, but not a marriage. The UK Court’s decision was based on the premise that the UK law’s discriminatory treatment of recognizing foreign marriages of opposite sex couples, but not the marriages of the same sex couples, was legitimate and proportionate because the UK law accorded same sex couples formal recognition under its Civil Partnership Act 2004 that had all the features and characteristics of marriage while preserving and supporting the concept and institution of marriage as a union between persons of the opposite sex. This, the UK Court claimed, removed the legal, social and economic disadvantages suffered by same sex couples who wished to join in stable long-term relationships and therefore did not constitute a breach of the British same sex couple’s rights under the European Convention on Human Rights. Because Bermuda law does not provide for same sex civil partnerships, this leads to the irresistible conclusion from the reasoning of the UK Court’s judgment, that Bermuda law is discriminatory, illegitimate and disproportionate as it recognizes an opposite sex couple’s foreign marriage, but not a same sex couple’s foreign marriage. However, the present difference between the law of the UK and Bermuda is that although the European Convention on Human Rights was applied to Bermuda by the UK after it signed the Convention, no domestic legislation has been passed to specifically implement the European Convention on Human Rights in Bermuda. Therefore, the European Convention on Human Rights does not have the force of law to be applied by the Bermuda courts. Because neither our Constitution nor the Human Rights Act presently provides for protection under the law in respect of one’s sexual orientation, it would be very unlikely that a petition to the Supreme Court of Bermuda for recognition of a same sex couple’s foreign marriage would be successful.
Accordingly, as Bermuda law presently stands, same sex couples who have “married” abroad or entered into foreign Civil Partnerships will find themselves in the same legal position as common law opposite sex couples in Bermuda. The solution to their estate planning and succession law difficulties can only be overcome by entering into formal agreements such as jointly purchasing their home and preparing Powers of Attorney and Wills to govern their respective legal positions before and on death. Same sex couples who enter into foreign marriages should be alert to the conflict of laws where their Bermuda Will will be revoked by the laws of the foreign jurisdiction, but not under Bermuda law. Should there be property in any foreign jurisdiction belonging to either or both members of the same sex Bermuda couple, then on entering into a foreign same sex marriage, fresh Wills should be made in Bermuda or other appropriate action taken to preserve their legal positions both in Bermuda and in any foreign jurisdictions, at least until such time as the existing conflict of laws is resolved. At the time of writing this article, the Human Rights Commission had embarked upon a review of the Human Rights Act “…to ensure that Bermuda possesses a system of human rights protection that protects the interests of all Bermudians…” It is hoped the Commission will fully address this situation.