A matter of equal choice

As I write, the Court of Appeal is hearing the appeal of London couple Rebecca Steinfeld and Charles Keidan against a High Court judgment from January 2016 dismissing their application for judicial review of civil partnerships being available to only same-sex couples.

Following the introduction of same-sex marriage in 2014, same-sex couples now have the choice between a civil partnership and a marriage, but opposite-sex couples have only marriage available to them. Steinfeld and Keidan brought their case on the grounds of inequality and are appealing the High Court’s judgment after an online petition attracted 70,000 signatures in support of civil partnerships being available to all.

As the High Court’s judgment highlights, the government has not been inactive in considering the impact on civil partnerships of the extension of marriage to same-sex couples. It consulted on the matter in 2014 (SJ158/30). However, the government decided to wait and see how the availability of same-sex marriage impacted civil partnerships before making any decisions.

The number of civil partnerships a year fell by 85 per cent in the two years following the introduction of same-sex marriage, but in 2015 there were still 861 same-sex couples who chose civil partnership over marriage. And in October 2016 the first opposite-sex civil partnership in the British Isles was entered into by Adeline Cosson and Kieran Hodgson on the Isle of Man, where new laws were passed in July 2016 enabling both same-sex and opposite-sex couples to enter into civil partnerships.

So, there is clearly demand for civil partnerships even when marriage is available. But what is the difference? Ideological objections

Steinfield and Keidan have ideological objections to the institution of marriage based upon what they consider to be its historically patriarchal nature. This is the most commonly cited objection. Cosson and Hodgson are reported as wanting to ‘get married one day’ but in the meantime seek the legal rights and benefits that their civil partnership provides.

The rights and benefits provided by civil partnership and marriage are broadly the same. They receive the same legal treatment for matters including inheritance, tax, and pensions. The inheritance tax ‘spouse exemption’ is available to both, importantly enabling any tax to be delayed until after the second death, preventing, for example, the forced sale of the family home while it is still occupied by the survivor.

Assets can be transferred between the couple on a ‘no gain, no loss’ basis, which avoids a taxable capital gain being triggered and can enable both parties’ annual allowances to be used on the sale of assets. Pension payments may continue for the survivor after the first death in the form of a ‘widow/er’s pension’. And you can even save money on your car insurance. Dissolution rules

The rules for the dissolution of a civil partnership are the same as those for marriage except that adultery cannot be used as evidence for the dissolution of a civil partnership, and a partnership cannot be annulled on the grounds that it was not consummated. As for the ceremony itself, there is no requirement to exchange vows in a civil partnership ceremony.

Since there is no such thing as a ‘common law marriage’ (SJ160/04), for unmarried couples seeking legal protection and formal recognition of their relationships but who do not wish to marry, a civil partnership is the only alternative. But, for now at least, that alternative is only available to same-sex couples who not so long ago were the ones fighting for, first, the ability to enter into civil partnerships and, more recently, marriage. It will be interesting to see what the Court of Appeal decides.

Kate Johnson is an associate at Wedlake Bell

@WedlakeBell www.wedlakebell.com