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Thursday 23 March 2017

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The Same-Sex Marriage (Consequential and Miscellaneous Amendments and Contrary Provisions) (Guernsey) Ordinance, 2017

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P.2017/28

The States are asked to decide:-

Whether they are of the opinion to approve the draft Ordinance entitled "The Same-Sex Marriage (Consequential and Miscellaneous Amendments and Contrary Provisions) (Guernsey) Ordinance, 2017", and to direct that the same shall have effect as an Ordinance of the States.

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.

EXPLANATORY MEMORANDUM

This Ordinance is made under sections 5(2) and 12 of the Same-Sex Marriage (Guernsey) Law, 2016. 

Section 1 of the Law enacts the general principle ("equivalence") that the law of Guernsey, whether statutory or customary, shall have the same effect in relation to the marriage of same-sex couples as it does in relation to the marriage of opposite-sex couples, and all existing Guernsey legislation will be interpreted in this way unless contrary provision is made.  Section 5 enables the States by Ordinance to make contrary provision disapplying the application of the general principle of equivalence in relation to existing legislative provisions.  Section 12 of the Law also gives the States powers by Ordinance (1) to make consequential and miscellaneous amendments to any enactment for the purpose of implementing the Law  and  (2) to make provision facilitating equality of all married persons, whether same-sex or opposite sex, and also of unmarried cohabiting couples of whatever gender.

Section 1 of the Ordinance gives effect to Schedule 1 which makes consequential and miscellaneous amendments to various enactments.  The majority of the amendments are consequential and arise from the introduction of the possibility that the parties to a marriage might be of the same-sex (e.g. terminology such as "husband and wife" amended to read "spouses"). These amendments may not always be necessary legally, because application of the general principle of equivalence means that the original wording would be read as also referring to same-sex couples: however, it is considered more helpful to the reader to alter the wording of the legislation so that its meaning is clear.

Other miscellaneous amendments, in addition to clarifying the extension of a legislative provision to same-sex couples, also adjust the position as between husbands and wives (e.g. in the Immigration Rules, it is presently a ground for deportation of a wife if her husband is deported, but not vice versa - the substitution of "spouse" for "wife" by paragraph 20 of Schedule 1 remedies this anomaly, as well as extending that provision to same-sex married couples, in line with the UK Rules).

A further category of amendments extends various provisions relating to cohabiting couples to same-sex cohabiting couples (e.g. the extension of the provisions in the Domestic Proceedings and Magistrate's Court (Guernsey) Law, 1988 relating to domestic violence orders).

Section 2 of the Ordinance gives effect to Schedule 2 which makes "contrary provision" disapplying the general principle of equivalence described above.  Some legislative provisions historically only apply to husbands and wives and have no application in modern times (e.g. the Married Women's Property Law 1928 is substantially disapplied because it was enacted to counter the customary rule of law that upon marriage a woman had no right to own and deal with property separately from her husband, which has no application to same-sex couples). Similarly, some social security provision (e.g. the principle of the increase of an old age pension for a wife in section 61 of the Social Insurance (Guernsey) Law, 1978) is only available to persons who acquired entitlement historically and is therefore of no application to same-sex married couples.  In other instances, separate provision is made (e.g. the Loi sur les Empêchements au Mariage à Cause de Parenté etc makes provision for prohibited degrees in marriage, which is dealt with for same-sex couples in section 11 of the 2016 Law; and the Income Tax (Guernsey) Law, 1975 was amended recently to include its own provision for same-sex married and unmarried couples, therefore the application of the 2016 Law is unnecessary). 

 

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Same-Sex Marriage (Consequential and Miscellaneous Amendments and Contrary Provisions) (Guernsey) Ordinance 2017

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