X, (In the Matter of a Petition by)

Factual and Procedural Background

The Appellant and his husband, both British citizens domiciled in Northern Ireland, were married in England on 27 September 2014. They returned to Northern Ireland on 4 October 2014, residing there thereafter. On 19 December 2014, the Appellant issued a petition under Article 31 of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 seeking a declaration that their marriage, solemnised in England, was a valid and subsisting marriage under Northern Ireland law.

The dispute arose because Schedule 2, Part 1 paragraph 2(1) of the Marriage (Same Sex Couples) Act 2013 provides that a same-sex marriage under England and Wales law is treated in Northern Ireland as a civil partnership, not a marriage. The Appellant alternatively sought a declaration that this provision was incompatible with Articles 8, 9, or 12 of the European Convention on Human Rights (ECHR), alone or combined with Article 14.

The trial judge found no breach of Convention rights in the statutory provisions. The Appellant appealed this decision. Various parties, including representatives of the Department of Finance and Personnel, the Government Equalities Office, and the Attorney General for Northern Ireland, participated in the appeal.

Legal Issues Presented

1. Whether the Appellant's same-sex marriage, solemnised in England and Wales, should be recognised as a valid marriage under Northern Ireland law.
2. Whether Schedule 2, Part 1 paragraph 2(1) of the Marriage (Same Sex Couples) Act 2013, which treats such marriages as civil partnerships in Northern Ireland, is compatible with Articles 8, 9, 12, and 14 of the ECHR.
3. Whether the court has jurisdiction under Article 31 of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 to make the declaration sought.
4. Whether there was unlawful discrimination contrary to Article 14 ECHR in the failure to recognise the marriage as such in Northern Ireland prior to legislative changes in 2019.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the case was not about the general prohibition of same-sex marriage but about recognition of a valid same-sex marriage solemnised in England and Wales.
• The Appellant submitted that the impugned legislation effectively deprived him of his marriage in Northern Ireland.
• He argued that the failure to recognise his marriage amounted to unjustified discrimination under Article 14 ECHR, relying on comparators of other same-sex couples married in England and Wales but residing there, whose marriages were recognised.
• The Appellant also invoked Articles 8, 9, and 12 ECHR, claiming violations based on private and family life, freedom of religion, and the right to marry.

Respondents' Arguments

• The Department argued there was no jurisdiction under Article 31 to declare valid a marriage entered into outside Northern Ireland or to treat a civil partnership as a marriage.
• It was submitted that Article 13 of the Matrimonial Causes (Northern Ireland) Order 1978 voided same-sex marriages and that references to marriage in Article 31 should be read as applying only to opposite-sex marriages.
• The Attorney General contended that a claim under section 4 of the Human Rights Act 1998 could not proceed without establishing victim status under section 7.
• The Government Equalities Office and other respondents supported the statutory framework treating same-sex marriages solemnised in England and Wales as civil partnerships in Northern Ireland, consistent with legislative competence and policy considerations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Close and others [2020] NICA 20	Clarification on standing and victimhood requirements under the Human Rights Act 1998, and the unlawfulness of the prohibition on same-sex marriage in Northern Ireland from summer 2017.	The court relied on Re Close to confirm the Appellant's standing and to apply the principle that the prohibition on same-sex marriage was unlawful from summer 2017 onward.
R (Steinfeld and another) v Secretary of State for International Development [2018] UKSC 32	Example of establishing victim status for a claim under section 4 of the Human Rights Act 1998.	Referenced to support the principle that a claimant must be adversely affected to establish standing in a section 4 claim.
Wilkinson v Kitzinger (No 2) [2007] 1 FCR 183	Test for discrimination under Article 14 ECHR regarding recognition of same-sex marriages solemnised abroad.	The court applied the test from Wilkinson to assess whether the difference in treatment between same-sex and opposite-sex marriages was justified.

Court's Reasoning and Analysis

The court began by affirming its jurisdiction under Article 31 of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 to entertain the Appellant's petition, rejecting the Department's submissions to the contrary.

It considered the statutory framework, noting that the Northern Ireland Assembly had competence over marriage law, and that the Marriage (Same Sex Couples) Act 2013 treated same-sex marriages solemnised in England and Wales as civil partnerships in Northern Ireland. The court acknowledged legislative consent and the Sewell Convention's role in this context.

Regarding Convention rights, the court relied heavily on the recent decision in Re Close, which held that the prohibition on same-sex marriage in Northern Ireland became unlawful by summer 2017. Prior to that date, the prohibition was justified by legitimate aims, including the maintenance of the traditional concept of marriage.

The court rejected claims under Articles 8 and 12 ECHR that would require recognition of same-sex marriage, noting Strasbourg jurisprudence that same-sex marriage is not a Convention right. Article 9 was considered but found not to add anything beyond Articles 8 or 12.

The court framed the matter as an Article 14 discrimination case, applying a four-step test from Re Close: whether the situation falls within the ambit of a Convention right; whether there is differential treatment between analogous persons; whether the difference is based on a protected characteristic; and whether there is objective justification for the difference.

Applying these criteria, the court found that same-sex couples married in England and Wales and residing in Northern Ireland, including the Appellant, were treated the same: their marriages are recognised as civil partnerships in Northern Ireland. The true comparator was between same-sex and opposite-sex couples married in England and Wales, with the latter's marriages recognised as marriages in Northern Ireland.

The court accepted that the difference in treatment amounted to discrimination based on sexual orientation but concluded that, prior to summer 2017, the prohibition on recognition of same-sex marriage had a legitimate aim and was proportionate. Therefore, the failure to recognise the Appellant's marriage as such in Northern Ireland prior to that date did not constitute unlawful discrimination.

Finally, the court noted that legislative changes introduced by the Northern Ireland (Executive Formation etc) Act 2019 and related regulations now provide for same-sex marriage in Northern Ireland, rendering the Appellant's petition moot.

Holding and Implications

The court DISMISSED the appeal, upholding the trial judge's decision that the statutory provisions treating same-sex marriages solemnised in England and Wales as civil partnerships in Northern Ireland did not breach the Appellant's Convention rights.

The direct effect of this decision is that, prior to the legislative changes in 2019, the failure to recognise same-sex marriages from England and Wales as marriages under Northern Ireland law was lawful and justified. The decision does not establish new precedent beyond confirming the application of existing principles as set out in Re Close and Wilkinson v Kitzinger.

Following the legislative reforms of 2019, same-sex marriages are now recognised in Northern Ireland, addressing the issues raised by the Appellant.