Sexual relations are not required for a marriage to be valid for the purposes of parental orders. The presiding judge, Sir James Munby, in the matter of X (A Child) considered an application for a Parental Order under the Human Fertilisation and Embryology Act 2008. The child this application concerned was born as a result of foreign surrogacy.
When considering such an application a court must be sure that the requirements of section 54(1) and sections 54(2)-(8) of the Human Fertilisation and Embryology Act 2008 are met and also that the bests interests of the child are at the forefront of any decision. The facts of this case seen section 54(2) (a) and section 54 (4) (a) come into question due to the nature of the marital relationship between the parties.
54(2) (a) “The applicants must be…husband and wife.”
Whether this requirement was satisfied came into question due to the marriage between the parties being purely platonic, there was no sexual relationship between them and one of the parties is, as the other has always known, gay.
The parties had entered into a marriage in the UK, a marriage which complied with all the requirements of the Marriage Act 1949. Sir James Munby quite rightly agreed that there was no ground upon which the marriage could be declared voidable, let alone void. The marriage was a marriage regardless of how the couple chose to live their lives as husband and wife.
The law has always recognised that a couple may take each other as wife and husband as if she were a sister or as if he were a brother (Brown v Brown (1828) 1 Hagg ECC 523). Therefore a sexual relationship is not necessary for a marriage to be legally valid.
54(4) (a) “At the time of the making of the application and making of the court order…the child’s home must be with the applicants.”
The applicants in the case had different homes, the child was very familiar with both. The child’s time was split between the parties and their homes and the child did not live with anyone else. Most importantly the child was happy with this arrangement and used to it. This was enough to satisfy Sir James Munby that the child’s “home” was and is with the applicants.
It did not take must deliberation by Sir James Munby to come to the ruling that in this case a Parental Order should be made.
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