What are the key provisions of Tim Loughton's Private Members' Bill?
Tim Loughton's Civil Partnerships, Marriages and Deaths (Registration etc) Bill, which received its second reading in the House of Commons on 2 February 2018, has four main provisions:
- for a report to be prepared for the government on how the law should be changed to bring about equality between same-sex and opposite-sex couples in relation to civil partnerships;
- to enable both parents', not just fathers', names to be included on marriage certificates and civil partnership certificates in England and Wales;
- to include stillborn babies born before 24 weeks' gestation in the legal definition of stillbirths, rather than their deaths being treated as miscarriages, and
- to give coroners the power to investigate late stage stillbirths, for example if medical negligence is suspected.
The Bill was passed unanimously and now moves to its committee stage. However, in order to secure government support for his Bill, which (in common with his previous Bills) had originally provided for the extension of civil partnerships to opposite-sex couples, Mr Loughton agreed to water down the wording of the draft Bill. This has resulted in a firm government commitment to review, but not necessarily to change the law.
In the second reading debate, Victoria Atkins for the government stated that this will involve gathering data to assess the demand for civil partnerships among same-sex couples and opposite-sex couples by September 2019, and comparing the experiences of other countries. Many campaigners for the extension of civil partnerships are greatly disappointed at this watering down of the Bill.
What legal protections, if any, do opposite-sex cohabiting couples currently have? How would this change if civil partnerships were extended to all couples, regardless of sex or sexual orientation?
Unlike married couples or couples in a civil partnership, cohabitants have no automatic right to share the family assets (however long the couple have lived together and whether or not they have children), and no right to receive maintenance/financial support from the economically stronger partner. Instead they have to rely on the complexities of trust law to try and make out a beneficial claim against any property, and/or if there are children, to make a financial claim under Schedule 1 to the Children Act 1989.
Similarly, if a cohabitant dies without making a will, the surviving cohabitant has no automatic right to receive a share of the dead partner's estate but must make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The lack of legal rights for cohabitants (about which there exists widespread public ignorance, with the myth of 'the common law wife') often results in serious financial hardship for vulnerable partners, who are nearly always women, as well as the children of the relationship.
Put simply, if civil partnerships were extended to opposite-sex couples they would have the same legal rights, in the event of the breakdown of their civil partnership, to apply for financial provision, and the court would have the same wide discretionary powers to redistribute assets (including pensions) between the couple and to make maintenance orders in favour of the economically weaker partner, to meet their financial needs, so as to achieve fairness. They would also enjoy the same inheritance rights as married couples on the death of their civil partner.
To what extent is the Bill and its progress through Parliament likely to impact the ongoing litigation in Steinfeld v Secretary of State for Education, due to be heard in the Supreme Court in May 2018?
Given that it is for Parliament rather than the courts to make legislation, I think it is more likely to be the other way round. By that I mean that, if the Supreme Court upholds the couple's appeal against the majority decision of the Court of Appeal (Steinfeld v Secretary of State for Education  EWCA Civ 81,  All ER (D) 158 (Feb)), the government will be forced to change the law to allow opposite-sex civil partnerships.
All three members of the Court of Appeal held that the current ban on opposite-sex civil partnerships is discriminatory against opposite-sex couples and therefore incompatible with the couple's human rights, under Articles 14 and 8 of the European Convention on Human Rights. However, the majority agreed with the trial judge in holding that it was proportionate, and therefore lawful, for the government to be allowed more time to assess whether to make legislative changes.
What impression do you get about the government's current attitude towards the Bill? For instance, has the government done a U-turn since the departure of Justine Greening, who publicly supported it?
The government has already carried out two consultations in the last five years, seeking the public's views on whether civil partnerships should be extended to opposite-sex couples, but remain undecided on whether civil partnerships should be extended to opposite-sex couples, or stay as they are now (available only to same-sex couples), or be phased out altogether. They have consistently stated that they need more time to evaluate the situation before coming to a decision, referred to in the civil partnership court case as the government's 'wait-and-see' policy.
It was reported in the press, shortly before the second reading of his Bill, that Mr Loughton had believed he had the support of the then Education Secretary, Justine Greening, and had taken this to mean that the government intended to support his Bill. However, following the January 2018 Cabinet reshuffle, when Ms Greening left the Cabinet, there was a government U-turn and they reverted to their previous position of wanting to review the situation without any definite commitment to extend the law.
In the meantime, public support for extending civil partnerships to opposite-sex couples has gathered momentum, both inside and outside Parliament, including a second Private Members' Bill in the House of Lords, sponsored by Liberal Democrat peer Baroness Lorely Burt, an active supporter of Tim Loughton's Bill.
In addition to cross-party support from politicians, public figures and organisations, about 110,000 people have signed a petition organised by the Equal Civil Partnerships Campaign in support of the extension of civil partnerships, 30,000 of whom signed up after the second reading of Mr Loughton's Bill. There is definitely now a move for a change in the law sooner rather than later.
Maeve O'Higgins is an experienced family lawyer, mediator and collaborative lawyer and has been a partner and head of the family department at five different London law firms. Maeve deals with all aspects of family law and is used to dealing with matters involving complex assets and sensitive issues for high net worth individuals and their partners. She has particular expertise in relation to prenuptial, postnuptial and living together agreements as well as international relocation of children/leave to remove.
Interviewed by Kate Beaumont.
This article was first published on Lexis®PSL Family on 8 March 2018.
*Mapping advantages and disadvantages: Diversity in the legal profession in England and Wales Final Report for the Solicitors Regulation Authority October 2017