I have previously discussed the myth of ‘common law marriage’: the popular misconception that living with your partner for a lengthy period of time gives rise to some sort of legal protection in the event the relationship breaks down, akin to that afforded by marriage and civil partnerships. I am still strongly of the opinion that with couples in the UK increasingly opting to cohabit without getting married, this is an area of the law which needs to maintain pace with societal realities.
It was with interest, therefore, that I recently reviewed the judgment handed down by the Court of Appeal in the matter of Steinfeld and another v Secretary of State for Education  EWCA Civ 81.
Charles Keidan and Rebecca Steinfeld are a heterosexual couple who both hold ‘deep-rooted and genuine ideological objections to the institution of marriage, based on what they consider to be its historically patriarchal nature’. As UK law currently limits the ability to enter into a civil partnership to those who are in a same-sex relationship, the couple claimed that this equated to an infringement of their human rights, being discriminatory on the basis of their sexual orientation.
‘Wait and see’
Following previous consultation, the government took the decision to ‘wait and see’ what effect extending marriage to same-sex couples has on civil partnerships before permitting opposite-sex couples to enter into civil partnerships, or indeed abolishing or phasing out civil partnerships altogether. Accordingly, Keidan and Steinfeld also sought to challenge this previous refusal to extend civil partnerships to heterosexual couples.
The upshot was that although the couple’s appeal was ultimately dismissed, it was accepted that the ‘future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully’. Essentially, although it was accepted that the current position did create a difference in the way same-sex and opposite-sex couples are treated by the law, the Court of Appeal felt this was justified in light of the ‘wait and evaluate’ approach the government was taking.
I would be very interested to see whether opening up civil partnerships to heterosexual couples would actually result in a large number of cohabiting couples taking advantage of the option to enter into a civil partnership.
Undoubtedly, there are many people who share the feeling that the concept of marriage does not accord with their values and, as such, does not provide them with the outcome they desire in ‘formalising’ their relationship. Many others, though, may well still not wish to ‘formalise’ their relationship at all and still chose to live with one another without any label attached. My feeling is that it is for the law to keep up with relationship formats and social attitudes, so as to not only reflect reality, but also to protect people’s positions as far as possible when a relationship breaks down – whatever family format they chose to adopt as autonomous adults.
Pippa Allsop is an associate at Michelmores