Elderly sisters lose human rights challenge to Civil Partnerships Act

Legal News | 29 April 2008

Two elderly sisters who have lived together in Wiltshire all their lives have lost their battle to be treated as civil partners after the European Court of Human Rights ruled against them.

Joyce and Sybil Burden, aged 90 and 82, are worried that if one of them dies, the other will have to sell their four-bedroom house to pay the inheritance tax.

The Grand Chamber of the ECHR held by 15 votes to two that the Civil Partnership Act did not violate the prohibition of discrimination under Article 14 in denying them, as sisters, exemption from Inheritance Tax.

In Burden v the United Kingdom ( application no.13378/05 ), the Grand Chamber ruled that one of the defining characteristics of a marriage or Civil Partnership Act union was that it was forbidden to close family members.

Rather than the length or supportive nature of the relationship, the judges said that what mattered was the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. The fact that different European countries had different inheritance tax exemptions was irrelevant.

Elizabeth Gedye, lawyer for the sisters and an associate at Thring Townsend Lee & Pembertons in Swindon, said she was not entirely surprised by the verdict, but was disappointed by the margin of defeat.

“We lost by four votes to three at the Chamber, which is why we appealed,” she said.

Gedye said that the sisters had applied directly to the ECHR three years ago, and only came to her as clients after the court told them they needed a lawyer.

She said the Grand Chamber had rejected the government’s argument that the sisters had failed to make use of a domestic remedy by not seeking a declaration of incompatibility under the UK’s Human Rights Act.

“The judges preserved the right to apply directly to the ECHR, because declarations of incompatibility are not binding on the British government,” she said.

“This is the first time the issue has been tested in the Grand Chamber.”

Gedye said that given everything else the government had to deal with, she did not think that changing legislation in favour of the sisters would be a priority.

“As matters stand, they might have to sell the house,” she said. “It’s a worry to them.”

The Burden sisters have written to the Chancellor of the Exchequer every year since 1976, pleading to be treated as a cohabiting couple.

In a statement they said they were bitterly disappointed by the ECHR decision.

Julian Washington, partner at private client specialists Forsters said there would be sighs of relief from the Treasury.

“The Grand Chamber decided that the UK government was quite entitled to give preferential tax treatment to spouses (and also to same sex civil partners),” he said.

“The hallmark of marriage and civil partnership was that both were legally recognised, public commitments that brought with them rights and obligations.

“The relationship of the two sisters was quite different. They had chosen to cohabit as siblings but they did not fall into the privileged categories which the UK was entitled to recognise.

“This is the end of an epic struggle over inheritance tax for the two sisters.”

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