Sexual relations are not necessary for a legally valid marriage, the President of the Family Division has claimed.
In a notably concise judgement, Sir James Munby considered an application for a parental order under the Human Fertilisation and Embryology Act 2008. When a couple arranges for the birth of a child via surrogacy, they are required to apply for such an order in order to acquire the legal status of parents. Unless and until a parental order is issued, the surrogate mother (and in most cases, her husband or partner) will be considered the legal parents of the child.
Section 54(2) of the Act states that applicants for a parental order must be:
“(a)husband and wife,
(b)civil partners of each other, or
(c)two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.”
Sitting in the Royal Courts of Justice, Sir James revealed few details of the case before him, saying in his ruling:
“I propose to say very little about the facts. There is no need for me to do so. It would be wrong to disclose, even in anonymised form, matters which are, of their very nature, intensely personal and private.”
However he did reveal that the applicants, although married, were not in a sexual relationship because one of them was gay: a fact that had always been known to the other, Sir James stressed. Nevertheless, their relationship is “deep and of long-standing” he said, and they had explained “the journey which has brought them to court” in “moving and powerful language, and with complete candour”.
The fact that the couple had a platonic relationship could not disqualify them from a parental order, the President continued:
“The marriage, which took place in this country, complied with all the requirements of the Marriage Act 1949. There is…no ground upon which the marriage could be declared voidable, let alone void. 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.”
Clearly inspired by the uncommon facts of the case, Sir James added:
“One needs look no further than Nigel Nicolson’s Portrait of a Marriage , his acclaimed account of the unusual marriage of his parents, Vita Sackville-West and Harold Nicolson, to see how happy and fulfilling a marriage, more or less conventional, more or less unconventional, can be. But it is really none of our business. As the first Elizabeth put it, we should not make windows into people’s souls.”
The President also referred to the fact that the couple have different homes, with the child spending equal amounts of time at both properties, further qualifying the couple for a parental order.
Sir James concluded:
“Accordingly, and with great pleasure, I make the parental order sought by the applicants.”
Read In the Matter of X (A Child) in full here.