An equal footing

A new private members bill introduced in Parliament on 21 October 2015 is seeking to amend the Civil Partnership Act 2004 (CPA).The aim is to allow heterosexual couples to form a civil partnership (CP). It is expected to have its second reading debate in the House of Commons on
29 January 2016.

There was debate at the time of the CPA as to whether or not heterosexual couples should also be able to enter into a CP. It was decided that they should not be able to do so because they could marry.

Why has the bill been put forward?

The rationale behind the new bill is threefold.

• To correct the unintended inequality resulting from the Marriage (Same Sex Couples) Act 2013, whereby same-sex couples can form civil partnerships or get married, whereas opposite sex couples can only marry.

• It is seen as a bill promoting family stability, given that there are now just under three million cohabiting couples in the UK, double the number from 15 years ago, and the fact that some 33 per cent of all births are registered to unmarried parents who are living together - cohabitation is the fastest growing form of family in the UK.

• To assist in correcting the frequent injustice that results from relationship breakdown where the parties are not married. The myth of the common-law wife is still prevalent in England, despite the fact that there is no such thing.

Legislation in relation to claims that cohabitants can make against each other is hot-potch, confused, complex, and uncertain. These consist of certain property claims under the Trust of Land and Appointment of Trustees Act 1996 (TOLATA claims) and claims under schedule 1 of the Children Act 1989, on behalf of children where the parties are not married.

Legislation to protect cohabiting couples, at least to some limited extent, has been mooted several times and was introduced in Scotland several years ago, and there is in fact the Cohabitation Rights Bill currently in Parliament. It had its second reading on 12 December 2014, however most people think it is unlikely to reach the statute book so this is perhaps seen as an alternative.

Pros and cons

A CP would give couples full protection of the law as if they were married. They'd be able to make claims against one another on dissolution of the CP, and receive the same tax advantages as are currently enjoyed between spouses in relation to IHT and CGT.

Those who oppose the bill will argue that allowing opposite sex CP will see to the further erosion of the concept of marriage, and all that goes with that in terms of its perceived cohesive force within society. There's also the argument that CP will in some way be viewed as lesser than a marriage, and perhaps, the parties entering into them would not do so with the same serious contemplation and foresight that underlies a marriage.

Perhaps it is also an attempt to bolster the concept of family at a time when marriage rates are declining, and divorce rates are still high; a sign of the times and possibly a reflection of the continued separation between Church and State.

The bill

The bill itself is incredibly short and deceptively simple. It proposes that section 1 (1) of the CPA be amended to leave out the words 'of the same sex'. That is it.

But what would the effect of the deletion of those four words mean in terms of the future perception of marriage, marriage rates, the numbers of cohabiting couples formalising matters by having a CP, and the avoidance of the often-perceived injustice where parties who have merely cohabited, decide to separate?

Those are the far-reaching questions.

As society becomes more secular, perhaps this is an opportunity for couples to formally recognise the rights and obligations they owe to one another, based on cohabitation and long-term commitment, with or without children.
It can also act to encourage and enable more couples to maintain long-lasting and stable relationships short of marrying. And this in a society where many younger people feel the concept of marriage to be 'outdated' or not for them.

Conrad Adam is a partner at Wedlake Bell

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