Myth #37: Same-sex marriages are not recognised in Bermuda.
The issue of same-sex marriage is one which has generated much debate and even stronger feelings. In this paper just last week, a poll undertaken in Bermuda showed that approximately half of those surveyed opposed amendments to the law to allow for same-sex marriages. At the same time, there are equally vociferous calls to prevent such discrimination and an online petition is seeking support to persuade the Government to legalise same-sex marriage.
The legal position is, on the surface at least, fairly unequivocal. The starting point is the Marriage Act 1944. This Act sets out the prerequisites to be complied with in order for a valid marriage to take place and conversely, provides a list of circumstances in which a marriage will be deemed to be void. Perhaps, surprisingly, there is no specific provision requiring the parties to the marriage to be a male and female respectively. There is, however, a catch all proviso that states that the rules will apply “without prejudice to the effect of any other provision of law under which a marriage is void or voidable”.
The Matrimonial Causes Act 1974 provides the mechanism by which a marriage can be dissolved. Although the statute is primarily gender neutral, the Act sets out certain additional grounds on which a marriage is deemed to be void. This includes the critical provision that a marriage will be void where the parties are not respectively male and female. Therefore in order for a marriage to be valid in Bermuda the marriage must be contracted between a male and female.
So, a same-sex marriage will be void and therefore treated as never having occurred. An open and shut case then? Not so fast:
As much as Bermuda is “Another World”, it cannot live in a vacuum. Matters of international law impact on this island every day. Same sex marriage is now permissible, according to Wikipedia, in 17 countries including Portugal, Spain, New Zealand, South Africa, most states of the United States and most importantly the United Kingdom. These are countries where Bermudians visit frequently but also countries which provide Bermuda with a significant proportion of its guest workers. Therefore, although Bermudians of the same sex might not be able to lawfully marry here, it is quite conceivable that they may marry abroad and that such a marriage would be valid, at least in the country where the marriage took place. The question, which is more difficult, is whether a marriage lawfully entered into abroad would be recognised in Bermuda?
The circumstances in which foreign marriages will be recognised are not a straight forward matter and are determined applying principles of International Private Law. The very basic premise is that the Bermuda courts, in determining whether a foreign marriage should be recognised, will apply the law where the parties are domiciled, where they intend to set up their matrimonial home or where the parties have the most substantial connection. As such, same-sex Bermudians marrying abroad would likely find that their marriage would still be considered void (as the court would apply Bermuda law).
But what of same-sex expatriate workers lawfully married, say, in the United Kingdom who might seek to have their marriage recognised here for any number of purposes such as immigration, insurance, and potentially even for divorce. It is possible the Bermuda Courts might recognise a marriage between UK residents, lawfully married in the UK but now residing in Bermuda because UK law would, in principle apply. However, although the general approach in these matters is that the Courts will do their best to uphold foreign marriages, it is subject to the caveat that the Courts will likely only do so where the marriage is in keeping with public policy considerations. We therefore circle back to the inescapable fact that marriages between same sex-couples in Bermuda are not valid and are impermissible. That provides a fairly clear indication of public policy. There are however signs that this policy might be changing:
The recent case of A, B v The Department of Child and Family Services and the Attorney General  SC (Bda) 11 Civ (3 February 2015) concerned an unmarried same-sex couple. The couple sought to adopt a child who had been living with them but had been advised that they could not jointly apply to adopt the child as they were unmarried. The Plaintiffs successfully sought a declaration that the Adoption Act 2006 was incompatible with the Human Rights Act 1981 and that the Adoption Act be amended to allow for same sex couples to jointly apply for adoption.
The court held that the Adoption Act discriminated directly on the grounds of marital status and indirectly against same sex couples based on their sexual orientation. The case which was handed down on 3 February 2015 shows a considerable shift in the approach in the Bermuda courts on the issue of sexual orientation. The case demonstrates the potential powers of the Human Rights Act where one can show that they are being directly discriminated against and can bring themselves within the grounds of unlawful discrimination prohibited by the Act. In the A, B case, the Court took a generous and purposive approach and determined that an application for adoption fell within the definition that a person should not be discriminated against in relation to the provision of services.
In light of these recent developments, it raises the possibility that we may see challenges in the Bermuda courts against the prohibition preventing same sex couples from marrying and/or to have their marriage recognised in Bermuda. These arguments are complicated and require a far more in-depth consideration than this article can provide. Further, the arguments must be considered in conjunction with the Bermuda Constitution which does not prohibit legislation that discriminates on the grounds of sexual orientation. One suspects that the Bermuda Courts for now would be wary of changing a law which Parliament has so far not deemed desirable to change.
The position remains therefore that the myth is actually factually correct — same-sex marriages are not recognised in Bermuda — for now at least.
Adam Richards is a Director of Marshall Diel & Myers Limited and Member of the Matrimonial and Family Team. He can be contacted at email@example.com or on 295-7105.
This column is for general guidance only. It should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.