Equal civil partnerships

After the government enacted the Marriage (Same Sex Couples) Act 2013 it considered abolishing or phasing out civil partnerships altogether. Instead, it looks as though it will now extend this quasi-marital status to heterosexual couples, although perhaps not siblings.

Civil Partnerships were introduced in England and Wales under the Civil Partnership Act 2004. They were seen as correcting the longstanding injustice under which lesbian and gay couples were precluded from formalising their relationships in a way which not only celebrated and solemnised them as a public union, but also allowed them to access a number of legal rights hitherto only available to heterosexual married couples.

As enacted, therefore, civil partnerships were confined to same-sex couples. By section 3(1) of the 2004 Act, “Two people are not eligible to register as civil partners of each other if— (a) they are not of the same sex …”

A decade later the government took the view that the time was right to go all the way. Same-sex marriage had by then already been legalised in many other countries around the world. The Marriage (Same Sex Couples) Act 2013 came into force in England and Wales in March 2014. It provided, by section 9, for the conversion of civil partnership into marriage. Thereafter, the number of couples opting for civil partnership fell, the vast majority preferring the option of a full marriage. Nevertheless, a steady number continued to opt for civil partnerships.

The following year the government ran a consultation, Civil Partnership Review (England and Wales) – Report on Conclusions, which found little public support for the idea of extending civil partnerships to heterosexual couples. However, one such couple refused to take no for an answer. Objecting to the “historically patriarchal” nature of traditional marriage, they felt a civil partnership would better capture the essence of their relationship and values.

Rebecca Steinfeld and Charles Keidan brought judicial review proceedings against the government, seeking a declaration under section 4 of the Human Rights Act 1998 that, in consequence of the enactment of the Marriage (Same Sex Couples) Act 2013, sections 1 and 3(1)(a) of the Civil Partnership Act 2004 had become incompatible with article 14 read with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. That was because the 2013 Act had created a status quo in which only same-sex couples were able to choose between civil marriage or a civil partnership as the formal recognition of their relationship, thereby discriminating against opposite-sex couples.

Their claim was dismissed in the High Court: see R (Steinfeld) v Secretary of State for Education [2016] EWHC 128 (Admin); [2016] 4 WLR 41 in a decision affirmed by the Court of Appeal [2017] EWCA Civ 81; [2018] QB 519. However, they appealed to the Supreme Court [2018] UKSC 32; [2018] 3 WLR 415, who allowed the appeal and gave a declaration of incompatibility.

The decision of the Supreme Court did not, as some newspapers reported, immediately give them the right to a civil partnership, as Polly Morgan explains in a post on the Transparency Project blog (About that civil partnership case). It merely obliged the government to remove the discrimination – which they could have equally done by abolishing civil partnerships altogether. In response to the decision, the government announced in October 2018 that it would be changing the law to extend civil partnerships as an option to partners of the opposite sex. This, it said, “will not only address [the current] imbalance, it will also provide greater security for couples who want to gain legal recognition for their relationship.” That suggests the intention is at least in part to offer a solution to those who choose cohabitation as a conscious rejection of traditional marriage but wish to adopt a formal legal recognition of their status. (Since it’s being achieved by statute, such a union cannot by definition be a common law marriage.)

Although the government said it would consult on the detail, there is already a bill in Parliament that would achieve the desired result. The Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill is a private members bill introduced by Tim Loughton. It includes a number of other amendments to family law legislation, but if enacted it would have the effect of removing the incompatibility identified by the Supreme Court.

However, it is not the only private members bill in the offing. Baroness Burt of Solihull has introduced a Civil Partnership Act 2004 (Amendment) (Mixed Sex Couples) Bill to achieve this limited result; and, perhaps more controversially, Lord Lexden has introduced a Civil Partnership Act 2004 (Amendment) (Sibling Couples) Bill to extend the 2004 Act to siblings of equal or opposite sex, with a view to enabling them to take advantage of the legal rights (eg to property and inheritance) enjoyed by civil partners (without, obviously, the quasi-conjugal ones).

It remains to be seen what support any of these bills will receive from the government in terms of parliamentary time, though it has at least indicated its commitment to change. And the really interesting point about all of this is how legislation has been prompted, to a greater or lesser extent, by difficult and awkward cases. This demonstrates how, even when the courts are not making law by setting precedents, they are making law by prompting legislators. If only the legislators didn’t already have so much on their agenda.

Featured image: Street art shows Superman proposing to Batman, on June 12, 2013 in Tours, France, by solkanar, via Shutterstock.