Civil Partnership – Equal Rights for Same-Sex and Heterosexual Couples

Posted by Rosie Eastwood

Solicitor

The introduction of civil partnerships was the first step taken by the government to try and achieve equality between heterosexual and same-sex couples, however, it is this same step which now causes inequality between them.

Since same-sex couples have been legally allowed to marry under the Marriage (Same Sex Couples) Act 2013 (MSSCA), those couples have had the option of either marrying, or entering into a civil partnership, in order to formalise their relationship. The same options have not been available to that of opposite-sex couples to date.

In October 2014, determined couple Rebecca Steinfeld and Charles Keidan attempted to formalise their relationship by entering into a Civil Partnership, but were told they could not enter into a civil partnership as they are different sexes, marriage being the only option open to them to solemnise their relationship.

What is the difference between marriage and civil partnerships I hear you ask?

In practical terms… not a lot.

There are a number of financial remedies and rights bestowed by both marriage and civil partnerships on breakdown, and the dissolution or divorce process is largely the same. However, for those couples who wish to be free from the religious connotations linked to marriage and, what some believe, its patriarchal tones, whilst at the same time formalising their relationship and providing them with the financial security afforded by marriage, there is a significant difference.

As has been widely reported in the news, Rebecca and Charles felt that a civil partnership would capture the essence of their relationship and values in that they are a partnership of equals. Since 2014, Rebecca and Charles have been campaigning for their right to enter into a civil partnership, and to end the inequality that the Civil Partnership Act 2004 (CPA) imposes upon heterosexual couples.

After previously having their claim dismissed by the High Court and Court of Appeal, on 27 June 2018 the Supreme Court allowed the couple’s appeal.  By unanimous agreement, the Justices of the Supreme Court ruled that Section 1 and Section 3 CPA, to the extent that they exclude heterosexual couples from entering into civil partnership, are incompatible with Article 14 (the prohibition on discrimination) together with Article 8 (the right to respect for private family life) of the European Convention on Human Rights.

In handing down Judgment, Lord Kerr detailed how the government was aware that by not extending civil partnerships to heterosexual couples, once the MSSCA came into force, there was an inequality based on sexual orientation and that further review of the legislation in this area was necessary. In determining whether interference with human rights was justified, the Court had to consider whether the legislative objective was sufficiently important to justify limiting a fundamental right, therefore whether there was a ‘legitimate aim’. Lord Kerr states in this instance that ‘Tolerance of discrimination while the respondent determines how best to remedy it cannot be characterised as a legitimate aim’.

Essentially therefore,  the Supreme Court have ruled that preventing heterosexual couples from entering into a civil partnership breaches their human rights, and amounts to discrimination, there being no justification for this breach.
Following this Judgment being handed down by the Supreme Court last week, the pressure is now on the government to review UK legislation in this area, and either to allow heterosexual couples to enter into civil partnerships, or perhaps controversially, stop same-sex civil partnerships so that no matter your sexual orientation there is only the one option of marriage, when taking that decision to formalise your relationship.

According to the Office of National Statistics, in 2017 there were 3.3 million cohabitating couples in the UK. These are couples who are living together without the security that either a marriage or a civil union provides.

Extending civil partnerships to heterosexual couples may encourage some of those who do not wish to marry to formalise their relationships, however we are forgetting those couples who would still choose not to formalise their relationship despite this change coming into force.

One hopes that whilst the government addresses the UK legislation relating to civil partnerships, that finally financial remedies and protection for dependant and vulnerable cohabitants will also be established in law.

Watch this space…


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