Introduction of the Domestic Partnership Bill 2020

By
Premier Hon. Alden McLaughlin, MBE, JP, MLA

27
July, 2020

Legislative
Assembly

Madam
Speaker, I beg to move the second reading of a Bill for a Law to
provide for Domestic Partnership and for incidental and connected
purposes.

The
Bill before the House this morning is one that I think all of us
would have to agree is the most contentious issue, addresses the most
contentious issue that I certainly have known since I arrived in this
House almost 20 years ago. It is with a great deal of deliberation,
thought and prayer that we have arrived at this point and that I
discharge the solemn obligation of moving the Domestic Partnership
Bill 2020 and introducing it to this House. To say the Bill is
contentious is an understatement. But it is a very important Bill.

There
are those in the public who support it as it has been published;
there are those who support it but say it does not go far enough;
there are even those opposed to it because it does not go far enough
in their view. And then there are those who oppose it outright for
varied reasons, including religious grounds. Because of that we can
expect heated and spirited debate inside and outside of these
Chambers for and against the Bill.

I
would urge us all as we speak our mind and our conscience to remember
always the importance of compassion and tolerance and to understand
that however strongly our views may be held, others are entitled to
theirs as well. It is other people – other parents, children;
others’ children’s parents – that we are speaking about. My
point, we are all God’s creatures and we ought to, regardless of
how strong we feel, to remember that.

Let
me now describe what the Bill seeks to do. In broad terms the Bill
contemplates two persons entering into a domestic partnership that is
registered by the Registrar of Domestic Partnership. Madam Speaker
those registering must be eighteen years or older, or if between 16
and 18 years old they must have the requisite consent of parents,
guardians or the courts in the same way that consent is necessary for
people of the opposite sex who propose to marry under the age of 18.
Neither can at the time of registration be married or in a recognised
domestic partnership; and of course, they cannot be related.

In
short, the Bill, if it becomes Law, will permit two adults to enter
into a formal, legal partnership with defined rights recognised by
the state. It will be termed a Domestic Partnership. It is not a
marriage

That
is what this Bill is about, Madam Speaker. Before I get into the
details I need to just say a few things about what this Bill is not
about.

First,
this is not a Bill about the legality or morality of homosexuality.
The issue of the legality of homosexuality in these Islands has been
settled for almost twenty years now, as required under the United
Kingdom’s Caribbean
Territories (Criminal Law) Order, 2000,
which took effect on 1 January, 2001. That Act, passed in the UK by
Order in Council, decriminalised homosexuality in these Islands and
all the Overseas Territories and confirmed that homosexual acts
carried out in private shall not be an offence provided that the
parties consent thereto. So regardless of our views on homosexuality,
that has been the position in our Islands for 20 years. Homosexuality
is not a criminal offence.

Despite
that, Madam Speaker, when issues such as the one now before us are
raised, often what we hear are thunderous speeches railing against
homosexuality. I do not for a moment doubt the sincerity of the views
held by many in these Islands on this subject, Madam Speaker.
However, I do question the relevance of such views when it comes to
the matter before us today and the issues contained in this Bill.

There
is a very important principle at stake here today. But the rights and
wrongs of particular lifestyles is not it. Rather, as I will explain,
the principle at stake today and with this Bill is whether this
Honourable Legislative Assembly of the Cayman Islands is willing to
uphold the rule of law.

In
my view, for lawmakers, principles do not come much more important
than that and I hope Members will focus their minds on it as we
deliberate here today. The late president of the United States John
F. Kennedy in his message to the American people in 1962 on
discrimination is one that is appropriate for this House to consider
on this occasion. He noted that while citizens are free to disagree
with the law they are not free to disobey it

Secondly,
this is not a Bill about marriage, specifically marriage between same
sex couples. We have sought in bringing this bill to ensure that we
maintain what our law says about marriage and also the views of many
in our church communities. But we have also acknowledged the need to
abide by the law and to provide protections for same sex couples that
the law and the Courts have demanded of us.

I
was heartened to receive a letter on July 16th
from the Cayman Ministers’ Association where they recognised the
efforts that we have gone through to protect the rights of people on
both sides of the debate.

This
letter states as follows Madam Speaker:

Quote

Dear
Hon. Premier

Greetings!

I
write on behalf of the Executive of the Cayman Ministers Association,
regarding the Domestic Partnership Bill. We do appreciate the
cordiality and consideration that both you and the Attorney General
have always afforded us. We also sincerely appreciate your
sensitivity to the concerns of the Church and the wider community
regarding same-sex relationships.

You
did express however, the need to address the lingering matter of same
sex unions, especially in the light of the ruling of the Court of
Appeal. We as a CMA Executive are further appreciative of the manner
in which you sought to protect heterosexual marriage, according to
our constitution, and also to protect marriage officers and churches
from any obligation regarding domestic partnerships.

We
do wish to submit very humbly and respectfully a Formal Position
Letter, which we would like you to consider in your decision making.
This we also would be making available to the other members of the
Legislative Assembly. Attached also are comments from The Rt. Hon.
Dame Joan Sawer, former President of the Court of Appeal and Chief
Justice of the Bahamas.

We
know that this is a very difficult matter and may God grant you
wisdom in your decision making.

Yours
Very Truly

Torrance
Bobb

Chairman,
Cayman Ministers Association

End
Quote

Madam
Speaker I will make available a copy of this letter and attachments
on the table of this Honourable House.

The
letter from the CMA spoke well to their recognition of our efforts to
keep marriage and domestic partnerships separate. So Madam Speaker I
say again that this Bill is not about marriage. This point is
important, Madam Speaker, and I will say more about that shortly.

Before
I do so, however, I need to remind the House of the background to
this Bill.

Madam
Speaker, the particular path that has brought us here is a complaint
by Ms. Chantelle Day, a Caymanian Attorney, and Ms. Vickie Bodden
Bush. A complaint that has been considered by the highest court in
our land.

What
the Courts – the Grand Court and the Court of Appeal - have
determined lies behind that complaint is the failure over many years
of this Hon. House to provide a solution that safeguards the rights
of some members of our society. It is that failure we are being
charged to rectify here today.

In
April 2018, Ms. Day and Ms. Bodden Bush wrote to the General Registry
requesting a licence to enter into marriage in the Cayman Islands.
The application was properly refused given the clear requirements of
our Marriage Law, which stipulates in section 2, that marriage is the
union between a man and a woman as husband and wife.

Therefore,
Madam Speaker, as a matter of law the General Registry could not
properly, and did not, issue a license to them to get married.

That
was the law then in August 2018 and that is the law today, in July
2020. Madam Speaker, more importantly, that will remain the law, even
if this Bill is passed by this House. This Bill does not seek to
change or supersede the existing Marriage Law.

Madam
Speaker, having properly met with a refusal by the General Registry,
Ms. Day and Ms. Bodden Bush applied to the Grand Court for a number
of reliefs because, they argued, the refusal of their application to
be married infringed rights guaranteed to them under our
Constitution. In particular:

• 
  their
  right to private and family life under S. 9(1) of the Bill of Rights
  in the Constitution;
  
• 
  their
  right to freedom of conscience under section 10(1);
  
• 
  their
  right to marry and found a family under S.14(1);
  
• 
  And
  their right not to be discriminated against under section 16(1) of
  our Bill of Rights.
  
  

To
correct what they viewed as a wrong they sought a declaration from
the Courts that the Marriage Law should be read and construed with
such modifications, adaptations, and qualification as may be
necessary to bring it into conformity with the Constitution.

They
had applied for a marriage licence so inevitably, their legal
proceedings were focused on marriage. However, Madam Speaker, of
particular significance to this debate today is their claim that
while they were entitled to marry, they sought as a minimum, a
declaration that provision should be made for them to enter into a
“civil partnership”.

Madam
Speaker, Honourable members would recall that the matter was heard by
the Grand Court, and the Hon. Chief Justice delivered its ruling in
March 2019.

The
Grand Court ruled that the Bill of Rights in the Constitution did
give Ms. Day and Ms. Bodden Bush the right to marry. And by way of
remedy, the Chief Justice ordered that section 2 of the Marriage Law
be amended to read as follows:

“marriage
means the union between two people as one another’s spouse”.

Madam
Speaker, the Chief Justice also modified section 27 of the Marriage
Law to bring it into conformity with the amendment he ordered to
section 2. Section 27 is the section that deals with marriage
declaration. In other words, the Chief Justice, in seeking to provide
Ms. Day and Ms. Bodden Bush with a remedy, legalised same-sex
marriage in the Cayman Islands. That remained the law until the Court
of Appeal judgment although the provision was stayed while the appeal
was being pursued. This country has had same-sex marriage legalized
here at that point. I say that because we may, if we fail to pass
this bill, arrive back there very swiftly.

Madam
Speaker, members will recall that my Government then instructed the
Honourable Attorney General to appeal the ruling of the Grand Court.
At stake in the appeal was not just the substantive issue of same-sex
marriage but the principle that this House, not the Chief Justice,
should write the Laws of the Cayman Islands. And so if a law is
determined by the Courts to contravene the Constitution then it
should be for this House to have the opportunity to fix it. And so
on that basis we pursued an appeal.

On
7th
November, 2019, the Court of Appeal issued its ruling. I am sure that
we were all relieved that the Court of Appeal disagreed with the
Chief Justice as it relates to the right to enter into same-sex
marriage in the Cayman Islands.

The
Court affirmed that under the current legal framework marriage is
only permissible between persons of the opposite sex. The amendments
to the Marriage Law that the Chief Justice had sought to impose were
struck down.

On
the face of it, this was a success for the Government of the Cayman
Islands. The Court had granted our appeal agreeing with our
interpretation of the law and striking down the Chief Justice’s
attempt to change the legislation without reference to this
Honourable House.

However,
having delivered a favourable verdict on our appeal, the Court of
Appeal went on to issue a declaration in absolutely unequivocal terms
as it relates to the legal obligations of the Cayman Islands to put
into law a framework to protect certain constitutional rights
relating to private and family life under section 9 of the Bill of
Rights protections in the Constitution.

Section
9, Madam Speaker, states that Government shall respect every person’s
private and family life, his or her home and his or her
correspondence. In other words, whilst Ms. Day and Ms. Bodden Bush do
not have a legal right to marry in the Cayman Islands, the Court
confirmed that they do have a right to private and family life and as
such the right to a legal framework that is not marriage but one that
provides similar legal resolution and security.

Madam
Speaker, the declaration was not only unequivocal. It was robust and
scathing. Members of this House should be in absolutely no doubt of
this. I have asked that copies of the judgment be circulated to all
Members but I will read the exact language employed by the Court.
Members can follow on page 36.

The
appropriate declaration

“As
we said in paragraph 6 above, the Appellants have finally accepted
that section 9(1) of the Bill of Rights requires the Legislative
Assembly to provide the Respondents with legal status functionally
equivalent to marriage. Its failure to comply with its obligations
under the law in that regard is woeful. That it had such an
obligation has been apparent for several years. As the Chief Justice
set out in detail, the Respondents, in broad terms, offered to
compromise the present litigation on appropriate undertaking from the
Appellants to establish an institution of civil partnership. Even
now, when during the course of argument, the court sought information
as to what the Appellants intended to do, we were merely told they
were awaiting the outcome of the litigation. It is difficult to
avoid the conclusion that the Legislative Assembly has been doing all
it can to avoid facing up to its legal obligations. In the meantime,
Ms. Day and Ms. Bush (and their child) suffer in the many ways the
Chief Justice set out.

In
our judgment, a declaration in the following form is appropriate:

“In
recognition of the longstanding and continuing failure of the
Legislative Assembly of the Cayman Islands to comply with its legal
obligations under section 9 of the Bill of Rights

And
in recognition of the Legislative Assembly’s longstanding and
continuing violation of Article 8 of the European Convention on Human
Rights,

IT
IS DECLARED THAT:

Chantelle
Day and Vickie Bodden Bush are entitled, expeditiously, to legal
protection in the Cayman Islands, which is functionally equivalent to
marriage.”

It
is not appropriate to require undertakings from the Attorney General,
as is urged upon us by the Respondents. Moreover, proper fulfilment
of its legal duty by the Legislative Assembly should provide the
protection sought.

A
final observation

We
feel driven to make this final observation.

This
court is an arm of government. Any constitutional settlement
requires the executive and the legislature to obey the law and to
respect decisions of the court. It would be wholly unacceptable for
this declaration to be ignored. Whether or not there is an appeal to
the Privy Council in respect of same-sex marriage, there can be no
justification for further delay or prevarication.

Moreover,
in the absence of expeditious action by the Legislative Assembly, we
would expect the United Kingdom Government, to recognise its legal
responsibility and take action to bring this unsatisfactory state of
affairs to an end.”

Madam
Speaker, I said earlier, that the principle at stake today is whether
this House will uphold the rule of law. The Court of Appeal has
challenged us clearly and directly to do so. As the Court describes,
it would be ‘wholly unacceptable’ for this House to ignore the
court’s declaration and to refuse to act.

How
can this Hon. House ask the Courts to implement and enforce the laws
we pass in this Legislative Assembly if we ourselves refuse to be
bound by the decisions of our Court of Appeal? Indeed, how we can
expect the people of these Islands to be bound by the law if we as
lawmakers refuse to do so. If we claim some moral right to ignore a
very clear instruction from the Courts, what is to stop every other
participant in legal proceedings in these Islands from doing the
same?

I
have spent almost 20 years in this House. I have been proud to be a
Member. I have been proud to uphold the law and to observe the
sacred oath that I swear – each of us swears - when taking office
after each election. Madam Speaker, before taking up our seat in this
honourable House, each of us is required to speak the Oath of
Allegiance. Indeed, we cannot act as Members of this House without
doing so.

Let
me remind members of that Oath. “I swear that I will be faithful
and bear true allegiance to Her Majesty Queen Elizabeth the Second,
Her Heirs and Successors, according to law. So help me God.”

I
will simply observe that the Constitution allows the words “So help
me God” to be omitted by Members who wish to affirm. But I also
note that the words “according to law” may not
be omitted. That is the core of the Oath we take. “According to
law.” That is how we must act as Members of this House; according
to law.

Increasingly
I am seeing and hearing calls for a People Initiated Referendum on
this matter, or from some in this House and outside of it for a
general referendum at the next election so that the public can decide
on this issue. Madam Speaker this is not a policy decision. This is a
matter of Law and indeed a Constitutional matter. To repeat again,
our Courts are requiring that the Legislative Assembly provide the
protections that they have identified. They are requiring that this
Legislative Assembly cease the continuing breach of both Article 8 of
the European Convention on Human Rights and Section 9 of the Bill of
Rights of the Cayman Islands Constitution. Compliance with these
provisions is not a matter of choice for this House or for this
Government. Rectifying these issues is a matter of complying with the
law as articulated by the Court of Appeal.

A
People Initiated Referendum does not apply to Constitutional matters
and a general referendum, as allowed by section 69 of the
Constitution, is also not suitable to decide this matter. It has
been decided by the Courts that this Legislative Assembly as everyone
in this house is aware.

Some
have argued that we can, indeed should, continue to prevaricate. Why,
some ask, are we rushing ahead with legislation when the matter is on
appeal to the Privy Council?

To
answer that Madam Speaker I can do no more than repeat the words from
the court of appeal.

“This
court is an arm of government. Any constitutional settlement requires
the executive and the legislature to obey the law and to respect
decisions of the court. It would be wholly unacceptable for this
declaration to be ignored. Whether
or not there is an appeal to the Privy Council in respect of same-sex
marriage, there can be no justification for further delay or
prevarication.” That
is why the Government must proceed as we’re doing today.

Honourable
Members should recall that the Court of Appeal was almost incredulous
that despite having conceded the legal principle the Government –
my government, the government which I lead - had no plan or timetable
for legislation to enact domestic partnerships. We do not have to
wonder then what view would the Privy Council take if months later we
go before them in February next year and still have no plans to
resolve this impasse?

Moreover,
I ask that Honourable Members also recall that the appeal to be heard
by the Privy Council is not about domestic partnerships or civil
unions. It is about same-sex marriage; what is being appealed by the
appellants there is the decision of the Court of Appeal, which found
in favour of the Government and the Legislative Assembly position
that our Constitution does not require same-sex marriages. Members
must also recall that it has already been established and affirmed by
the Court that some form of domestic partnership, rather than same
sex marriage, is necessary to safeguard the rights of individuals,
such as Ms. Day and Ms. Bodden Bush. That fact will not change. It
will not.

And
so if we fail to act then the Privy Council will, I am certain, act
in our stead and implement same-sex marriage because they have no
means of assuring that persons in same-sex relationships are
protected as are required by both Article 8 of the European
Convention on Human Rights and Section 9 of our Bill of Rights. The
issue before them is solely that; whether or not same-sex marriage is
required under our Constitution. And if we do not have a domestic
partnership law in place then same-sex marriage will not be a
difficult decision for them to make.

And
we in this House would have only ourselves to blame Madam Speaker.
And many of those public voices now against this Bill, despite
whatever they say now, will hold us to account if same sex-marriage
is introduced because we - this Legislative Assembly - failed to act.

This
is our moment of truth - we can act and have a hand in making our own
destiny or we fail to act and dither and allow others to do as they
see best.

Madam
Speaker, the circumstances over recent months with our response to
the COVID-19 Pandemic have caused a delay in bringing this forward,
but as the Court made its expectations clear, we should delay no
further. We must act and we must act now.

There
is also, in my view, added risk in delay. Notwithstanding any appeal
to the Privy Council, the Court made itself very clear that the
protections sought by Ms. Day and Ms. Bodden Bush must be put in
place. Again, I quote:

“Moreover,
in the absence of expeditious action by the Legislative Assembly, we
would expect the United Kingdom’s Government, to recognize its
legal responsibility and take action to bring this unsatisfactory
state of affairs to an end.”

I
can tell you that stated expectation certainly caught the attention
of the UK Government.

Some
have argued that we should hold out against this change and let the
United Kingdom impose it upon us. They seem to believe that in
taking what they regard as a principled stand and it is better for us
to refuse to accept the change and have it forced upon us.

I
contend that approach is not one of moral principle that would lead
us into further delay. Rather it would in my view equate to moral
neglect to not seize the moment and act when we should. If we do not
act then this House is abdicating its responsibilities.

But
just suppose we do take such a course and delay. There must be an
added risk that if the United Kingdom Government were the ones to
push a change they would decide to impose same-sex marriage on these
Islands rather than domestic partnerships. It would not take very
much to simply reinstate the ruling of the Grand Court judge. And
many of those public voices now against this Bill, despite whatever
they say now, will hold us to account if same-sex marriage is
introduced because we failed to act.

There
is, I think, a view that to accept domestic partnerships would be the
thin edge of the wedge and that same-sex marriage would be bound to
follow. The experience in the UK and elsewhere in the world may
indicate that there is some substance to that argument.

However,
same-sex marriage has come about in those jurisdictions because
legislators in the UK and elsewhere have voted for it. It was not
imposed on them by the courts. I strongly believe that if we put in
place these arrangements for domestic partnerships now that gives us
the greatest chance of keeping future decisions about same-sex
marriage in the hands of future Caymanian legislators.

The
issue about whether same-sex marriage should be part of our
legislation should properly be left for the future and the future
legislators who follow us. Let us not pre-empt their ability to make
that decision by our failure to introduce the Domestic Partnership
Law.

Rather,
as I have said, the issue for us is whether this Hon. House will
uphold the law. Whether we will put in place the legislation
necessary to safeguard the rights of a section of our population who
do not have those rights protected now. The Courts could not have
been clearer about their expectations of the steps that this House
needs to take.

There
is one further risk I would like to highlight and that is a political
risk of inaction. This Government, with the support of the
Opposition, has invested considerable effort in negotiating a range
of Constitutional amendments with the UK Government. I have said
before in this House that I believe these changes represent a step
forward in our relationship based on the UK’s view that democratic
institutions and governance arrangements are maturing in Cayman and
that as such it is appropriate to give us more control over our own
affairs.

If
we now refuse to act when obligated to do so by the Courts, we would
be demonstrating not political maturity but adolescent
irresponsibility. It would be hard in such circumstances to make the
case to the UK that they should press ahead with the Constitutional
changes we have fought for and which were supported on all sides of
this House.

To
be clear, Madam Speaker, no one on the UK side has yet threatened us
with withdrawal of the proposed changes. There is no quid
pro quo at
play here. I am just realistic enough to recognize the risk and the
consequent damage both to our much-improved relationship with the UK
and to our wider international credibility.

It
follows, Madam Speaker that in the circumstances the Government has
an obligation to give effect to the pronouncement of the court. The
rule of law requires the government to do so. Indeed, both leading
Counsel from London who argued the case for us are quite firm in
their advice that we should do so before the matter is dealt with at
the Privy Council.

It
is for that reason that I am asking all Members of this Assembly to
support this Bill.

However,
in so doing I have assured those in my Cabinet and on the Government
benches that they can vote their conscience with regard to this Bill,
or not vote as they see fit. And I understand that the leader of the
Opposition has also told those on his team to do the same.

I
have a good sense as to who on my side supports the bill. And based
on what they have said to me, or said publicly, I believe that I have
a good sense as to who on the benches opposite will also support the
Bill. Of course, they may have changed their mind since last we spoke
and I will certainly see once I take my seat.

But
Madam Speaker, I must commend one-member opposite especially for his
understanding that what is before us comes down to us doing our duty
according to the law; but also it will provide protection to the
Marriage Law as well as providing legal protections to individuals
like Ms. Day and Ms. Bodden Bush. I speak of The Member for North
Side. In his public statements he showed a clear understanding of
what is at stake. In an interview to the Compass in November 2019, he
said (Quote), “My fear has always been if we don’t do what we
want to do, the United Kingdom will do what we don’t want to do,
and that is tamper with our Marriage Law”.

This
summarises the position very well. I commend Mr. Miller for it. I
commend him also for the strength of his conviction when he said in
the same interview that if he would lose the election because of his
support for civil unions, such as offered by the Domestic Partnership
Bill, then so be it. He went on to say “That’s my position and
it is a considered position that is not a flippant position.”

Again,
whilst I wait to see how the Member for North Side debates and votes
on the Bill I certainly commend him for his publicly stated position.

Madam
Speaker, the Member for George Town Central is a renowned fence
sitter. I say this somewhat tongue in cheek Madam Speaker but on this
matter the Member has certainly had his feet on one side of the fence
or the other from time to time. But his statements to me personally
and in the media does give the impression that he supports it.

Madam
Speaker, Cayman News Service in an article on 21 July, 2020, noted
that the Domestic Partnership Bill will Likely get the support from
the two independent Members, Ezzard Miller and Kenneth Bryan, who
have both said publicly that … “it is better for Cayman to draft
its own legislation to deal with this controversial issue than have
it imposed” on us by the UK. Again, I completely agree with this
sentiment and I congratulate the member from George Town Central for
taking that position. I will see during the debate which side of the
fence my colleague from George Town Central will be on when he rises
to debate.

I
am hoping that my debate here has successfully outlined the reasons
why the majority of members present should vote in favour of and to
pass this Bill into Law. I hope too that

I
have sufficiently outlined the risks if we do not.

Having
asked Members for that support, I will just quickly outline the main
provisions within the Bill, Madam Speaker, which reflects
substantially, the arrangements which obtain in Bermuda following
their Domestic Partnership Act 2018.

Madam
Speaker, as usual, clause 1 deals with the short title and
commencement.

Clause
2 contains a number of relevant interpretations; including Madam
Speaker, that of domestic partnership, which means a domestic
partnership formalised and registered in accordance with this law.

Clause
3 Madam Speaker is of particular significance in that it contains an
overview of the eligibility to enter into a domestic partnership. In
particular it stipulates that two persons over the age of 18 years
may enter into such partnerships. However, Madam Speaker, it also
provides that persons sixteen years or older but not yet eighteen may
also enter into such a partnership provided there is parental consent
or consent from a legal guardian or the court.

The
clause also stipulates that if persons are already married or
involved in a domestic partnership or an overseas formal relationship
they would not be able to enter into a domestic partnership.
Similarly, Madam Speaker, neither person should be in the prohibited
degrees of domestic partnership, that is, must not be related as
siblings, child, parents, etc.; the same prohibitions that obtain for
marriage.

Madam
Speaker, clauses 7, 8 and 9 together deal with the issue of notice
and issuance of licenses for domestic partnerships.

In
essence Madam Speaker, if there are no legal barriers or caveats then
the Registrar is required to issue the requisite licence once the
required notice period has been met. There is also provision for a
special licence to be issued by the Deputy Governor.

Part
4, Madam Speaker, which covers clauses 14 and 15 speak to the
formalisation of a domestic partnership. It provides that once
either the Registrar, or a domestic partnership officer is satisfied
that all the necessary legal pre-conditions have been fulfilled they
may formalise the relationship. The formalisation will take place in
the presence of two or more witnesses.

It
should be noted that it also contains provision for what is called
partnership in “extremis”, that is a type of “death bed”
partnership where, in the opinion of a medical practitioner, at least
one of the parties is in a dying state but is still able to
comprehend the effect of entering into a domestic partnership.

Madam
Speaker, a feature of the Bill is the ability for a person who has
any lawful grounds to object by way of a caveat to the issuing of the
licence for the domestic partnership. Once an objection is lodged it
has to be recorded by the Registrar and eventually transmitted to a
Judge of the Grand Court for an administrative decision as to its
merits. If the caveat is upheld the partnership cannot go ahead.

Madam
Speaker, part 6 of the Bill covers issues such as when a domestic
partnership may be said to be void or voidable, including instances
where there is lack of legal capacity by one of the parties to the
relationship.

Madam
Speaker, also of significance is part 7 of the Bill dealing with the
formal registration of a domestic partnership. Clause 21 in
particular contemplates that the Registrar General shall maintain a
Register of all Civil Partnerships, including all notices given, and
all the domestic partnership entered into under the law.

Clauses
25-27, Madam Speaker cover matters dealing with the appointment by
the Deputy Governor of domestic partnership officers and for the list
of those officers to be published by the Registrar General.

Madam
Speaker, it is worth emphasising that according to clause 29, a
person who is a marriage officer is not permitted to formalise
domestic partnerships unless that person is also expressly appointed
as a domestic partnership officer. Of equal significance Madam
Speaker is the fact that a marriage officer cannot be forced to use
any place of worship under his or her control to formalise a domestic
partnership, hence Madam Speaker the reason for the caption
protection of marriage officers at part 10 of the Bill.

Madam
Speaker, like the issue of the ability to permit gambling on Cayman
Registered Vessels in international waters, the issue of the ability
to formalise domestic partnership has also been mooted for some time.

You
may recall Madam Speaker that the gambling issue has been resolved,
with an amendment to the Gambling Law (1996 Revision) in 2016.

Madam
Speaker, part 11 of this Bill seeks to address the granting of
licence by the Hon. Deputy Governor to the master of a Cayman
registered ship to be a domestic partnership officer and thereby
facilitating formalising of Domestic Partnerships aboard such ships
on the high seas.

Madam
Speaker, in part 12 of the Bill are provisions that will, among other
things, allow for the recognition, in the Cayman Islands, of certain
overseas relationships to be treated as domestic partnerships. These
Madam Speaker are relationships that are either specified in the Bill
or having met certain other general conditions and that are
registered in the relevant overseas countries. For these Madam
Speaker, I would ask members to refer to schedule 2 of the Bill where
both the countries and the description of the relationships are
listed.

Another
feature of the Bill Madam Speaker is found in part 13, which
stipulates that in instances of breakdown and dissolution of a
domestic partnership, the provisions in the Matrimonial Causes Law
and the Maintenance Law would apply to their court proceedings.

Then
Madam Speaker there is part 14 of the Bill, which creates certain
offences to do with domestic partnership, e.g. a person who, not
being a Registrar or a domestic partnership officer, purports to
formalise a domestic partnership.

There
is provision in clause 45 for the publishing of annual reports of
summary of domestic partnerships registered during each year.

Then
Madam Speaker there is part 16 of the Bill, which allows for
references from other Laws to be also applied to domestic
partnership, (see column in clause 46 for the list).

Part
17, Madam Speaker, seeks to, among other things, clarify the position
as it relates to marriage, but also goes on to provide that certain
overseas same-sex marriages, may be recognized if entered into before
this Bill becomes law.

Also
Madam Speaker, there will be a slight committee stage amendment to,
among other things, provide that thereafter, such marriages can only
be recognised and treated in Cayman as a domestic partnerships in
certain circumstances.

So
Madam Speaker that is a general outline of some of the main
provisions of the Bill. It is not an exhaustive summary, given the
length of the Bill. Additionally, Madam Speaker, I shall advise Hon.
Members that if this Bill becomes Law, there will be a number of
other Bills to effect certain consequential changes to other Laws in
order to give full effect to the declaration of the Court of Appeal
as it relates to “functional equivalency to marriage.”

These
Madam Speaker include Laws such as the Penal Code Law, Mental Health
Law, Immigration Law, National Pensions Law, Adoption Law, Succession
Law, Wills Law and some others.

In
closing, Madam Speaker, I would like to take this opportunity to
thank the Attorney General and his staff for the work they have done
to produce this Bill. It is a necessarily complex piece of
legislation given the requirements laid down by the Court and the
need to ensure we can demonstrate that the resulting legislation
reflects the needs to safeguard the Constitutional rights of those
who were not previously offered such protections.

In asking Members to vote to
pass this Bill, I am asking them to uphold the rule of law and the
principle of respect for the decisions of our Courts. I know this is
a difficult decision for some, including some of my colleagues on the
Government benches. However, there is no place for us as lawmakers to
hide. Either we accept the rule of law and make the changes we are
bound by our Oaths of Allegiance to make or we do not. There is no
middle ground. The idea that we might simply sit on our hands while
either the Privy Council or the United Kingdom Government solve this
for us is at best to abdicate responsibility and at worst to fail in
the most fundamental tasks of government – to uphold the law and to
safeguard the rights of our people.

This
is now a question of political leadership. Are we, as lawmakers,
going to face up to our responsibilities or abdicate them and leave
it up to the Privy Council or United Kingdom Government to discharge
the sacred function that we swore an oath to do?

Are we prepared to bear the burden of leadership as we were elected to do or shall we leave it to the United Kingdom either by their judges in the Privy Council or as a result of the extension of an Order in Council for these Islands to make the decision, which each of us in here campaigned that we were able and competent to do; that is the question which each of us must ask ourselves.

There is a reason why it is called the burden of leadership; it is often heavy to bear. We shall see whether we are capable of bearing that burden or whether it shall cause us to bow and pass that responsibility to another country and another people to discharge.