Marriage of same sex couples: Northern Ireland

This briefing paper was last updated on 7 January 2020 before the restoration of the Northern Ireland Assembly and Executive.

The law in Northern Ireland is due to change very shortly to enable same sex couples to marry and opposite sex couples to form a civil partnership. This briefing paper deals with the marriage of same sex couples in Northern Ireland. Another Commons Library briefing paper provides information about the extension of civil partnership to opposite sex couples across the UK: Civil partnership for opposite sex couples (CBP8609).

Background

The issue of the marriage of same sex couples is controversial in Northern Ireland. It is one of the issues on which the parties in Northern Ireland disagree.

Campaigners, including human rights and equality bodies, have strongly supported the introduction of legislation for marriage of same sex couples in Northern Ireland. The DUP and some churches and religious groups are among those who believe that marriage should only be between a man and woman, arguing that civil partnership is an option for same sex couples. The Government’s stated view was that, although Parliament could legislate on the issue, any decision to introduce marriage for same sex couples in Northern Ireland should be taken by the Northern Ireland Assembly. There has been no fully-functioning Northern Ireland Assembly or Executive since 9 January 2017.

Current position

Issues in relation to marriage and civil partnership are devolved. Eligibility to marry and to form a civil partnership differs across the UK. At present:

• In Northern Ireland opposite sex couples may marry but marriage of same sex couples is not possible. Same sex couples may register a civil partnership, but opposite sex couples may not do so. This position is about to change.
• In England and Wales, all eligible couples, same sex and opposite sex, have the option to marry or to register a civil partnership if they wish to gain legal recognition for their relationship.
• In Scotland, same sex couples may marry or register a civil partnership. Opposite sex couples may marry but may not register a civil partnership. The Scottish Government has introduced a Bill in the Scottish Parliament which would extend eligibility to form a civil partnership to mixed sex couples.

Extension of marriage to same sex couples in Northern Ireland

The Northern Ireland (Executive Formation etc) Act 2019 received Royal Assent on 24 July 2019. It includes section 8, “Same sex marriage and opposite sex civil partnership”, which was added during the passage of the preceding Bill through Parliament. Because the Northern Ireland Executive was not restored on or before 21 October 2019, section 8 came into force on 22 October 2019. The section requires the Secretary of State to make regulations, to come into force on or before 13 January 2020, to provide that, in Northern Ireland, same sex couples are eligible to marry, and opposite sex couples are eligible to register a civil partnership. The Secretary of State may also make supplementary regulations.

In debates on the Bill, some argued against the entire concept of marriage of same sex couples, and/or that it was for the Northern Ireland Assembly, rather than Westminster, to legislate, if at all, on this issue. Others spoke of this being an equality issue which, in view of the lengthy absence of a functioning Assembly, Westminster must deal with, in order to bring Northern Ireland into line with the rest of the UK.

Several parties, including Conservatives and Labour, gave a free vote on the issue of the marriage of same sex couples. Because of this, John Penrose, who was then Minister for Northern Ireland, said that the Government would not be putting across a principled view, one way or another.

Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019

The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (the Regulations) were made on 19 December 2019 and are due to come into force on 13 January 2020. An Explanatory Memorandum has also been published. Among other things, the Regulations will enable same sex couples to form a civil marriage and will also provide some protections, in recognition of the fact that there are differing views. The Government intends to make further regulations under section 8 in 2020 following consultation on various issues, including religious marriage for same sex couples.

Previous attempts to reform the law in Northern Ireland

In June 2015, the High Court in Belfast granted permission to two same sex couples to seek a judicial review of the ban on marriage of same sex couples in Northern Ireland. The couples argued that the law discriminated against gay and lesbian couples. In August 2017, the Court dismissed the two cases, saying that it was for the Northern Ireland Assembly, and not a judge, to decide social policy.

The Northern Ireland Assembly has voted on five occasions on motions on the marriage of same sex couples. The most recent occasion was on 2 November 2015 when, for the first time, the Assembly voted, by a majority of one, in favour of a motion brought jointly by the SDLP and Sinn Féin, which called on the Executive to table legislation to allow for marriage of same sex couples. However, the motion failed because it did not achieve a cross‑community majority: the DUP had presented a “petition of concern”, a mechanism which can, effectively, allow a group of at least 30 MLAs to “block” a decision of the Assembly.

Private Members’ Bills at Westminster, intended to change the law in Northern Ireland, have not made progress.