On 1st February this year the States of Jersey voted in favour of the Marriage and Civil Status (Amendment No. 4) (Jersey) Law 201-. The new marriage law will, for the first time, extend the right to marriage to allow for same-sex couples to get married in Jersey.
The approval of the new marriage law followed a period during which a number of its provisions were hotly debated by the religious community in Jersey. These included the question of whether it should contain a so-called “tolerance clause” permitting individual business owners of religious conviction, who provide goods and services for weddings and associated celebrations, to discriminate against same-sex couples wishing to marry in Jersey. The clause was eventually rejected by the States.
The new marriage law to extend the right to marriage now awaits royal assent in the Privy Council. The Jersey Government has said the law is expected to come into force ‘in a number of months’.
At present, same-sex couples can already enter into a civil partnership under the provisions of the Civil Partnership (Jersey) Law 2012, which came into effect on 2 April 2012, and permits same-sex couples to enter into a legally recognised relationship, which is only terminated by death, dissolution or annulment but it doesn’t extend the right to marriage.
It is appropriate to mention at this point that the new marriage law will provide for a civil partnership to be converted into a marriage, and it contains provisions relating to the conversion application process, and the restrictions on conversion to marriage.
This new marriage law, once it comes into force, represents a further expansion of a series of new ‘anti-discrimination’ legislation which has been passed in recent years, albeit that the main effect of this legislation has arguably been most visible in the context of employment law. Those changes were heralded by the coming into force of the Discrimination (Jersey) Law 2013 on 1 September 2014, which introduced a number of protected characteristics under the Employment (Jersey) Law 2003, making it unlawful to discriminate against people in a variety of specified situations, including employment, on the basis of race.
This was then followed in relatively short order (judged by the standard of the speed with which legislation is generally passed) by the Discrimination (Sex and Related Characteristics) (Jersey) Regulations 2015, which came into force a year later on 1 September 2015, and the Discrimination (Age) (Jersey) Regulations 2016 which came into force a further year after that on 1 September 2016.
In the context of this legislation, the new marriage law must be seen as part of an ongoing initiative by the States of Jersey to reduce the areas of discrimination that are permissible in the Island. It will also bring Jersey’s legislation into line with other countries, both in Europe, including the UK, and further afield.
But what will be the effect of the new marriage law for employers and employees in Jersey? Will it have a radical impact on the way that employers must treat their employees, and if so what will those effects be?
The answer to those questions is perhaps less dramatic than might at first be thought. This is because the Discrimination (Sex and Related Characteristics) (Jersey) Regulations 2015 already make discrimination on grounds of sexual orientation illegal in the context of employment, and certain other specified areas, in Jersey. In circumstances were such discrimination is alleged, a complaint can already be made to the Jersey Employment and Discrimination Tribunal, which has the power to make orders to address the discrimination, including the award of damages if it finds that discrimination has occurred.
There will be effects on other areas of legislation in Jersey in order to take account of the changes introduced by the new marriage law to extend the right to marriage. This includes changes to the Income Tax (Jersey) Law 1961 to facilitate the taxation of same-sex married couples so that they are taxed on the same basis as other married couples. Same-sex married couples will be entitled to the same reliefs and allowances as different-sex married couples. Under the current legislation, for different-sex married couples there is one taxpayer: the husband. For same-sex married couples, the taxpayer will be the eldest spouse.
It is also intended that the Matrimonial Causes (Jersey) Law 1949 will be subject to complete review and amendment during 2018/2019 in order to allow for divorce amongst same-sex couples. For example, it is recognised that the amendments brought forward do not address the problems associated with adultery as grounds for divorce, or refusal to consummate as a ground for nullity.
The Gender Recognition (Jersey) Law 2010 will also be amended to provide for the introduction of same-sex marriage.
It is also anticipated that further legislative amendments will be required in order to enhance provisions for same-sex parents regarding the extension of parental responsibility, step-parenting agreements, and parental leave for surrogate parents. Steps in that regard have already been taken by way of new family-friendly employment rights legislation, which has been brought forward by the Social Security Minister.
Jersey is accordingly at an exciting stage of its legislative journey to break down more of the remaining barriers to achieving equality between different-sex and same-sex couples.
Author: Chris Austin