On 27 June 2018, Rebecca Steinfeld and Charles Keidan celebrated a landmark victory, after the Supreme Court held that the Government’s refusal to allow opposite-sex couples the right to civil partnerships was “incompatible” with Human Rights law. This judgment overturned the majority Court of Appeal decision to dismiss the couple’s appeal against the High Court’s ruling against the right to civil partnerships for opposite-sex couples.
West London couple Rebecca and Charles have been living together since 2010 in a committed relationship and they have two young children together. The couple have ideological objections to the institution of marriage, which they regard as patriarchal and outdated. Rather than getting married, they wish instead to be able to enter into a civil partnership which, as the trial judge put it, “reflects their values and gives due recognition to the equality of their relationship”. This is impossible under the current law whereby, in England, Wales and Scotland, only same-sex couples have the choice between having 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 opposite-sex couples in October 2016, but opposite-sex Isle of Man civil partnerships are not recognised in the UK.
Civil Partnerships were introduced by the Civil Partnerships Act 2004, to enable same-sex couples to formalise their relationships and enjoy similar legal rights to married couples, at a time when marriage was only available to opposite-sex couples. When the law changed in March 2014 and marriage was extended to same-sex, as well as opposite-sex couples, in England and Wales, with the introduction of the Marriage (Same-Sex Couples) Act 2013, civil partnerships were not abolished. Since December 2014, civil partners (who wish to do so) have also been able to convert their civil partnership into marriage. This has created the anomalous situation where only same-sex couples now have a choice between entering into a civil partnership, or getting married, in order to acquire legal recognition of their relationships.
Rebecca and Charles brought a case in the High Court seeking a judicial review. They argued that the law is incompatible with article 14 of the European Convention on Human Rights, which prohibits discrimination (including on the grounds of sexual orientation), in connection with the right to family life and private life, protected under article 8 of the Convention. The trial judge dismissed the couple’s claim to have suffered discrimination, as an opposite-sex couple, in January 2016. On appeal, by a majority, in February 2017 the Court of Appeal upheld the High Court judge’s ruling, holding that the Government’s stated intention to take more time to evaluate whether to extend civil partnerships to opposite sex couples was proportionate and therefore lawful. In a powerful dissenting judgement, Lady Justice Arden stated that the potential violation of Rebecca’s and Charles’ human rights was not justified by the Government’s “wait-and-see” policy, although it was open to the Government to reformulate that policy.
As Lady Justice Arden pointed out in the Court of Appeal and was commented on by several of the Supreme Court Justices, cohabitees are now the fastest growing family type in the UK. Their numbers have more than doubled over the past 20 years. Unlike married couples, or couples in a civil partnership, a cohabitee has no automatic right to receive any share of the family assets and no right to receive maintenance/financial support from the economically stronger partner, in the event of the breakdown of the relationship. This is the case however long the couple have lived together and whether or not they have children together. Similarly, if a cohabitee dies without making a will, the surviving cohabitee has no automatic right to receive a share of the dead partner’s estate and must make a claim against the estate under the Inheritance Act. The lack of legal rights for cohabitees often results in serious financial hardship for vulnerable partners, who are nearly always women, as well as the children of the relationship.
Tim Loughton’s private member’s bill, which had originally provided for the extension of civil partnerships to opposite-sex couples, was watered down earlier this year, in order to secure a firm commitment from the Government to review (but not necessarily to change), the law relating to civil partnerships. This resulted in the bill being passed unanimously in February 2018, following its second reading in the House of Commons. The bill passed its committee stage on 16 July 2018. In February 2018, the office of the Equalities Minister had explained that the Government proposed to gather and evaluate data in order to assess the demand for civil partnerships among same-sex couples, as well as opposite-sex couples, examine same-sex couples’ reasons for choosing civil partnerships and then to compare the experiences of other countries. The proposed timescale for completion of this information-gathering exercise was the end of 2019 so that, by early 2020, the Government anticipated being able to formulate a set of proposals on the future of civil partnerships, on which they would then seek public consultation.
This proposed timescale was regarded as far too long to have to wait by the many people who support Rebecca’s and Charles’ call for the extension of civil partnerships to opposite-sex couples. The five Supreme Court justices unanimously agreed with them. The Supreme Court then proceeded to exercise its discretion to make a declaration that (to the extent that they preclude an opposite- sex couple from entering into a civil partnership) sections 1 and 3 of the Civil Partnerships Act 2004 are incompatible with article 14, taken in conjunction with article 8 of the ECHR. A declaration of incompatibility does not oblige the Government or Parliament to change the law, although it obviously puts pressure on the Government to do so. Following the Supreme Court judgment, the Government is now considering extending the legislation to permit opposite-sex couples to enter into civil partnerships. Immediately following the handing down of the Supreme Court judgement, Charles and Rebecca delivered a letter to the Equalities Minister, Penny Mordaunt MP, calling on the Government to act as a matter of urgency. It now remains to see whether they will do so.