Civil partnerships were introduced in 2004, allowing same sex couples to enjoy the same rights and responsibilities as married couples. This seemed to be an intermediate compromise, providing legal protection for same sex couples whilst avoiding confrontation with the more traditional legal and social sector. During the next 10 years, same sex couples could only enter into a civil partnership but not a marriage.
In 2014, same sex marriage was legalised, allowing couples who had entered into a civil partnership to convert this status to marriage. Consequently, the number of civil partnerships formed in England and Wales fell by 70%. In the following six months, 7,732 couples converted their civil partnership into a marriage.
However, despite the legalisation of same sex marriages, the Civil Partnership Act was not repealed. Therefore, same sex couples can choose between entering either a civil partnership or a marriage, whereas marriage is the only available option for opposite sex couples to formalise their relationship. The differences between these two legal statuses are minimal since there is an equal legal treatment in matters including inheritance, tax, pensions and financial claims upon divorce. One of the main differences is that adultery cannot be used as evidence to apply for the dissolution of the civil partnership, and only applies to different sex marriage.
The fact that civil partnership is not available to different sex couples, inevitably leads some couples to cohabit. Contrary to popular belief, living with your partner (no matter for how long) or having a child together without being married, does not give you rights (nor responsibilities) towards each other and, for some, that may be the attraction of choosing cohabitation over marriage. However, in reality, many couples fail to understand this difference. The consequences can certainly be stressful. Being unable to claim financial relief after the breakdown of the relationship, even though one of the parties has substantially sacrificed their career for the family, and issues such as inheritance and tax are specific difficulties that may be encountered. Married couples enjoy a range of rights and benefits that cohabiting couples do not.
However, choosing to marry simply to acquire rights and responsibilities is not the solution for everyone. Many people like Rebecca Steinfeld and Charles Keidan reject traditional marriage, believing it to be sexist and of unequal nature between the parties.
Ms. Steinfeld and Mr. Keidan were in a long-term relationship which they wished to formalise as a civil partnership, believing this to better reflect their values. In October 2014, they tried to do this at their local registry office, only to be told that this option was only available to same sex couples. In response, Ms. Steinfeld and Mr. Keidan launched a judicial review at the High Court in December 2014. Their case was that Section 1 of the Civil Partnership Act 2004, which establishes that “a civil partnership is a relationship between two people of the same sex…” is not compatible with the European Convention on Human Rights (ECHR), specifically Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life).
In summary, their case was that under the ECHR everyone should be treated equally by law and, by restricting the right to enter into a civil partnership only to same sex couples, different sex couples were being discriminated.
In February 2015, the High Court granted permission for the couple’s legal claim to proceed and the case was heard in January 2016. The Judge dismissed their claim but granted immediate permission to appeal.
In November 2016, the Court of Appeal agreed that the couple were being treated differently because of their sexual orientation and this had an impact on their private and family life. However, only one of the three judges accepted that the Secretary of State should immediately justify the discriminatory treatment of opposite sex couples. This allowed the government time to evaluate whether to extend civil partnerships to different sex couples.
The position of the government is that, when same sex marriage was made legal, Parliament consciously decided not to abolish the civil partnership status nor to extend it to different sex couples, even though the inequality that this would bring was acknowledged. Further government consultations into the societal impact and how the legal position relating to civil partnerships should change proved inconclusive.
On 27 June 2018, a further appeal to the Supreme Court was unanimously granted and it was declared that Sections 1 and 3 of the Civil Partnership Act 2004 were incompatible with Article 14 in conjunction with Article 8 ECHR, and that the inequality created by the Civil Partnership Act amounts to discrimination and a breach of the right to a family life.
What happens next?
The Supreme Court decision has not changed anything yet, meaning that only same sex couples can enter into a civil partnership. Furthermore, this decision does not oblige legislators to act. However, change is expected and the extension of civil partnerships to opposite sex couples appears the most straightforward solution. Regardless of whether people view civil partnership and a non-religious marriage differently, the discrimination inherent in the law should be corrected immediately.
With approximately 63,000 couples in civil partnerships in the UK and more than 3 million cohabiting couples, the extension of civil partnerships could have an impact on these numbers, as cohabiting couples may be more inclined to enter into a civil partnership as opposed to a marriage. This would, at least, remove the existing inequality of the system and guarantee the legal protection of their relationship, particularly since legislation on the rights and responsibilities of cohabiting couples appears remote. A potential increase in civil partnerships remains to be seen but, in any event, this should not allow the existing inequality between same sex and different sex couples before the law to continue.