Sir James Munby

Sexual relations are not required for a marriage to be valid for the purposes of parental orders, the president of the family division has said, before granting an order in a foreign surrogacy case to a couple where one of the partners is gay.

Sir James Munby said little about the facts of the case in In the matter of X (A Child), which centres around requirements for a parental order under the Human Fertilisation And Embryology Act 2008. However, Munby’s brief judgment casts a spotlight on what represents a valid marriage under the eyes of the law.

Section 54 of the act states that the applicants must be husband and wife. Munby said the applicants remain married but ‘one of them is, as the other has always known, gay’. However, he said their platonic relationship did not affect their ability to satisfy the section 54 requirement.

The marriage, which took place in the UK, complied with the Marriage Act 1949 requirements, 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.’

Another requirement under the Human Fertilisation And Embryology Act 2008 is that the child’s home must be with the applicants at the time the application and order are made. The X judgment states that the applicants have different homes. When the child is not with both parents, the child’s time is split between their homes. Munby said it was ‘clearly established on the authorities’ that the child’s ‘home’ was and ‘is with’ the applicants.

‘Accordingly, and with great pleasure, I make the parental order sought by the applicants,’ he concluded.

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