Extending Civil Partnerships to Heterosexual Couples: Where are we now?
3rd October 2018
The concept of civil partnerships extending to heterosexual couples has been prevalent in the news lately – firstly, as a result of the Steinfield and Keidan case, and secondly, due to the recent announcement from Theresa May of the Government’s intention to make the change.
The Civil Partnership Act 2004 was enacted in order to allow same-sex couples to enter into a Civil Partnership, giving the couple equivalent rights as heterosexual couples who get married. However, in 2013 the Marriage (Same Sex Couples) Act was passed, giving same-sex couples the option to get married. It was envisaged that when the 2013 Act was passed, the need (and want) for civil partnerships would diminish. However, this proved not to be the case with the number of civil partnerships still rising year on year since the 2013 Act was enacted.
As a result of the Marriage (Same Sex Couples) Act 2013, there arose inequality. Whilst heterosexual couples can only formalise their relationship through marriage, same-sex couples could choose either marriage or civil partnership.
There was a review undertaken in 2014 by the Government that acknowledged this inequality; however, as a result of the investigations, the Government decided to adopt a ‘wait and see’ approach, hoping that once the new Act settled in, it would become apparent whether civil partnerships were still required.
In 2018, there was further Government action on this issue – there was a Command Paper to look at the data to decide which proposed option was preferable. The choices, as laid out in the review, were to: abolish civil partnerships, close civil partnership to new entrants, or open civil partnerships up to heterosexual couples. At the time that the Command Paper was issued, it was thought that no decision could be made until 2020 in order to allow time for sufficient data to become available.
Steinfield and Keidan are a heterosexual couple who have a conscientious objection to marriage and the religious connotations it entails yet want to formalise their long-standing relationship. They sought a judicial review of the Government’s decision to open up the availability of marriage to same-sex couples without giving the corresponding right of allowing civil partnerships to be accessed by heterosexual couples. The claim was that the failure to allow heterosexual couples to enter into a civil partnership was contrary to their human rights, namely Article 8 – the right to a private and family life.
In the first instance, the High Court was of the opinion that Article 8 was not engaged, and even if it was, there was an objective justification to its breach in giving Government time to consider the effect of the 2013 Act before deciding how to respond. On appeal, the Court of Appeal held that Article 8 was engaged, but that the inequality was justified. The Court was of the opinion that the matter was one of social policy for government to decide, and time was needed to assess the impact of the 2013 Act.
By the time the case was heard on appeal again by the Supreme Court in June, the Government acknowledged that both Article 8 and Article 14 (a corresponding right to freedom from discrimination) were engaged. The decision for the Supreme Court, therefore, was whether the inequality (and therefore breach of the applicants’ human rights) could be justified. The Court said the justification put forward by the Government that they needed time to undertake research into the effect of the 2013 Act was ‘at best, of dubious relevance to the question of whether the continuing discrimination against different sex couples can be defended’. The Court focused on how Parliament created the situation of inequality and how, in such circumstances, there should be less discretion on allowing time to reflect on how to deal with that inequality. When the 2013 Act was passed, it could have been enacted without creating inequality: either by correspondingly allowing heterosexual couples to access civil partnerships or by abolishing civil partnerships for same-sex couples.
A declaration of incompatibility was therefore made. Whilst a declaration of incompatibility indicates a breach of the applicants’ human rights, it does not compel Government or Parliament to do anything to rectify the incompatibility.
During the Conservative Party Conference this week, Theresa May announced that the Government will now carry out a consultation with the aim of extending civil partnerships to heterosexual couples.
Whilst this announcement has been welcomed, and long awaited since the Supreme Court judgment, there is still some scepticism as to the time it will take before the change in the law is seen.
Some of the recent commentary on the Government announcement can be seen here: https://www.theguardian.com/uk-news/2018/oct/02/civil-partnerships-to-be-opened-to-heterosexual-couples
Why does this matter?
For many couples in long-term relationships, they believe co-habiting is sufficient. So why might a marriage or civil partnership be preferable to a long-standing co-habiting relationship?
There is often reference to a ‘common law partner’, but this is can be misleading. There is no legally acknowledged common law partner status and, as such, no different rules apply. Decisions will be made, and rules will apply, on whether or not you are married or in a civil partnership, or merely co-habiting.
This difference is important for a number of reasons, including inheritance, property rights, tax and debt obligations. The citizens’ advice bureau has compiled some of the main points to note, which you can access here: https://www.citizensadvice.org.uk/family/living-together-marriage-and-civil-partnership/living-together-and-marriage-legal-differences/
For those heterosexual couples who may have decided to not get married due to a conscientious objection to the historic and religious connotations of marriage, the ability to instead enter into a civil partnership could create certainty and some preferable legal rights.