Committee for Employment & Social Security - P.2016/30
The States are asked to decide:-
Whether they are of the opinion to approve the draft Projet de Loi entitled "The Same-Sex Marriage (Guernsey) Law, 2016", and to authorise the Bailiff to present a most humble petition to Her Majesty praying for Her Royal Sanction thereto.
This proposition has been submitted to Her Majesty's Procureur for advice on any legal or constitutional implications in accordance with Rule 4(1) of the Rules of Procedure of the States of Deliberation and their Committees.
This Law implements the States' Resolution of 10th December 2015. Its main purpose is to enable same-sex couples to get married, either in a civil ceremony or, provided that the religious organisation concerned is in agreement, on religious premises or according to religious rites.
Part I extends marriage to same-sex couples and makes provision for the interpretation of new and existing legislation which contains reference to marriage or married persons. Same-sex marriages are to be treated the same as marriages between a man and a woman. However, provision may be made by Ordinance to alter the effect of the general rule where required. Part I also provides that same-sex marriages contracted outside Guernsey will be recognised under Guernsey Law.
Part II deals with religious protection. The position of the Church of England is dealt with separately because its Canons provide that marriage can only take place between a man and a woman and any change to that would require a Measure approved by Parliament. Accordingly, the Church of England is prohibited from marrying same-sex couples and any duty which a clergyman might have to marry a parishioner does not apply to same-sex couples. Other religious organisations may "opt-in" to solemnising same-sex marriages but are under no obligation to do so - no religious ceremony may take place without the express consent of the religious organisation's governing body.
Part III clarifies that same-sex couples cannot marry in Guernsey if one or both of them is already married or in a civil partnership. It also makes provision, equivalent to the provision made under a 1936 Law for opposite-sex marriages, for prohibited degrees of consanguinity.
Whilst provision is made enabling limitations on the general principle that legislation affects same-sex couples in the same way as opposite-sex couples to be imposed by Ordinance, certain such limitations are contained in the Schedule. Where private legal instruments, such as wills and contracts, are made prior to commencement of this Law, they will be interpreted on the basis that "marriage" means marriage between a man and a woman. Any such instrument made after commencement will be interpreted in accordance with the principle that "marriage" and related expressions includes same-sex marriage, unless provision is made to the contrary. Amendments to other matrimonial legislation (1) extend the jurisdiction of the Royal Court to entertain matrimonial causes for same-sex marriages where the parties married in Guernsey but there is no jurisdiction in their home country and (2) amend the grounds for divorce, in line with the UK legislation, in relation to all marriages so that only adultery with a person of the opposite sex is in itself a ground for divorce (although sexual misconduct with a person of the same sex could found a petition based on unreasonable behaviour).