Marriage Equality: a devolution issue

Case Note: Re Close & Ors. (Judicial Review) [2017] NIQB 79

The High Court in Belfast recently revisited the question of marriage equality in Northern Ireland.

In an application for Judicial Review, two same sex couples, both of whom entered into civil partnerships in 2005, sought to challenge the prohibition under Article 6 of the Marriage (Northern Ireland) Order 2003 where ‘both parties are of the same sex’.

This is an issue which has been considered by the Northern Ireland Assembly on a number of occasions in recent years, with a vote in favour of marriage equality being defeated by a 'Petition of Concern' in 2015.

The Applicants sought a declaration that the 2003 Order was inconsistent with the Human Rights Act 1998 and the provisions of the European Convention on Human Rights protecting the right to respect for private and family life, the right to marry and prohibiting discrimination.

The High Court, although sympathetic to the plight of the Applicants, having reviewed the pertinent case law, concluded that the 2003 Order does not contravene the Applicant’s human rights. 

‘Put simply, the Strasbourg Court does not recognise a “right” to same sex marriage. That being the case, the current statutory provisions in Northern Ireland do not violate any rights. Those rights do not exist in any legal sense”.’

Accordingly, the matter rests with the Northern Ireland Assembly to legislate, or otherwise, for marriage equality in this jurisdiction.

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