Published: 26 March 2018
When granting a parental order to a couple where one of the partners is gay, Sir James Munby said that a sexual relationship is not a requirement for a valid marriage in relation to parental orders in surrogacy cases. The case was based on requirements for a parental order under the Human Fertilisation and Embryology Act 2008, with Munby passing a swift judgement outlining the requirements for what is considered a valid marriage.
The Laws within the Case
Under Section 54 of the act, it states that applicants for the order must be husband and wife, which is the case in this particular scenario. The applicants are married, despite one of the parties being gay, and both having always been fully aware of this, meaning that they do meet the criteria set in section 54.
Their marriage did indeed comply with the criteria of the Marriage Act 1949, and Sir James Munby said: ‘There can be no question of the marriage being a sham. In short, the marriage is a marriage. The fact that it is platonic, and without a sexual component, is, as a matter of long-established law, neither here nor there and in truth no concern of the judges or of the state [...] A sexual relationship is not necessary for there to be a valid marriage.’
Under the Human Fertilisation and Embryology Act 2008, it is required that the child in question must be living with the applicants at the time that they make the application for the order and when the order is made. In this case the applicants do live in different homes; however, the child is split between the two applicants and their homes meaning that the child is living with the applicants.
The Case Ruling
As a result, a ruling was made that the parental order would be granted. Although the ruling and statements may appear to be a little surprising to members of the public, it is indeed a fact that sexual relations are not a necessity for a marriage. With this in mind, many will consider the ruling to be a strong, sensible direction for the courts to take in relation to the surrogacy arrangement, and to be what is best for the child, who has two loving homes supporting her.
If you or your partner are in dispute about any child welfare or residency issue then K J Smith Solicitors can help. Our team of family law specialists have many years of experience in dealing with all matters relating to children with care and sensitivity.
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