This week the Court of Appeal, by a majority, upheld the High Court’s ruling in January 2016 against the right to civil partnerships for opposite-sex couples in the case of Rebecca Steinfeld and Charles Keidan. The couple have vowed to appeal to the Supreme Court.
The Court of Appeal agreed that the bar on opposite-sex civil partnerships constitutes a potential violation of the couple’s human rights under articles 14 and 8 of the European Convention on Human Rights, but did not make any declaration on the human rights issue, noting that there is already a private member’s Bill on civil partnerships before parliament. The majority (two out of three) agreed with the trial judge in holding that it was proportionate and therefore lawful for the government to have more time to assess whether to make legislative changes.
The Civil Partnership Act 2004 (Amendment) Bill to extend civil partnerships to opposite-sex couples was presented by Tim Loughton, Conservative MP for East Worthing and Shoreham, in July 2016 and had its second reading in January. Unusually for such a Bill, it enjoys cross-party support. It is scheduled to return to parliament on 24 March 2017 but is unlikely to progress further. Mr Loughton has given two main reasons for his Bill: to address the inequality whereby only same-sex couples can choose between marriage or civil partnerships and to promote family stability.
Steinfeld and Keidan have been living together since 2010 in a committed relationship and have a young daughter. They regard marriage as outdated and want to be able to enter a civil partnership which, as the trial judge in the High Court put it, ‘they consider reflects their values and gives due recognition to the equality of their relationship’. This is impossible under current law, whereby in England, Wales, and Scotland only same-sex couples have the choice of entering into a civil partnership or getting married. In Northern Ireland same-sex couples may register a civil partnership, but may not marry. The Isle of Man introduced civil partnerships for both same-sex and opposite-sex couples in July 2016, but opposite-sex Isle of Man civil partnerships are not recognised in the UK.
Civil partnerships were introduced to enable same-sex couples to enjoy similar legal rights to married couples, at a time when marriage was not available to them. Following a campaign to extend marriage to same-sex couples, the law changed in 2014 with the introduction of the Marriage (Same-Sex Couples) Act 2013. However, civil partnerships for same-sex couples were not abolished and up to now the government has not been willing to extend civil partnerships to opposite-sex couples, pointing out that when the public were consulted in 2014 the majority of the 11,500 people who responded were opposed to extending civil partnerships. However, the government now appears to accept that the ban on opposite-sex civil partnerships cannot continue indefinitely.
Steinfeld and Keidan argued that the law is incompatible with article 14 of the ECHR (which prohibits discrimination, including on the grounds of sexual orientation), in conjunction with the right to family life and private life protected under article 8.
The trial judge dismissed the couple’s claim, saying the difference in treatment of same-sex and opposite-sex couples ‘does not infringe a personal interest close to the core of the right to family life… still less the right to private life’. She also said that if she was wrong about that, the legal difference was justified in the short term because the government was evaluating the impact of the 2013 Act on civil partnerships before deciding whether to introduce new legislation. Opposite-sex couples did not suffer any discrimination by the hiatus caused by the delay, she said, because they could achieve identical rights to same-sex couples simply by getting married.
While the Court of Appeal’s ruling will be viewed as unfair by the thousands who have been campaigning for the right to opposite-sex civil partnerships, I feel that there are other areas of family law crying out for reform, notably the lack of legal rights for cohabiting couples. Cohabitees are the fastest-growing family type in the UK. Their numbers have more than doubled over the past 20 years. Unlike married couples, or those in a civil partnership, in the event of relationship breakdown a cohabitee has no automatic right to any share of the family assets (however long the couple have lived together and whether or not they have children) and no right to maintenance or financial support from the economically stronger partner.
Similarly, if a cohabitee dies without leaving a will, the surviving cohabitee has no automatic right to a share of the dead partner’s estate. The lack of legal rights for cohabitees can lead to serious financial hardship for vulnerable partners (nearly always women), as well as the children of the relationship.
Maeve O’Higgins is a family law partner at Moon Beever