Civil Partnership Act incompatible UK human rights law

London Family Solicitors have recently welcomed the decision that civil partnership is incompatible with UK Human Rights law because it excludes heterosexual couples. The Supreme Court recently delivered its judgment in the claim of Rebecca Steinfeld and Charles Keidan. In doing so, it declared that legislation designed to improve the status of unmarried, same sex couples by allowing them to enter into a civil partnership discriminates against opposite sex couples. The case reached the Supreme Court after the Court of Appeal rejected Steinfeld and Keidan’s appeal in February 2017 and has been watched closely by the best family solicitors in London.

The benefits of civil partnership

The benefits of civil partnership have long been recognised by good Family Solicitors. When first introduced, the Civil Partnership Act was a big step forward in protecting the rights of those in same sex relationships. Since 2005, provided a same sex couple registered their civil partnership, they have almost identical rights to a married, opposite sex couple. Opposite sex couples have never been able to register a civil partnership. They only have the option of marriage to obtain legal recognition of their relationship. However, since 2014, same sex couples have been able to marry as well as enter into a civil partnership. This discrepancy led to the litigation which has resulted in the declaration by the Supreme Court that the situation amounts to ‘blatant inequality’.

Discrimination against opposite sex couples breaches UK Human Rights law

The key to the argument rests in the fact that once marriage became available to same sex couples in 2014, when the Marriage (Same Sex Couples) Act 2013 came into force, the Civil Partnership Act 2004 remained unchanged. That introduction of the new piece of legislation meant that same sex couples essentially had 2 different options for formalising their relationship – marriage or civil partnership, whilst opposite sex couples only have the option of marriage. And while any London family lawyer would recognise that the intentions behind the Civil Partnership Act were laudable, giving same sex couples a degree of protection almost akin to marriage, the situation since the Marriage (Same Sex Couples) Act 2013 meant that opposite sex couples were worse off than same sex couples.

With only the option of marriage available to same sex couples, Steinfeld and Keidan argued that they were discriminated against, contrary to article 14 (the prohibition on discrimination) together with article 8 (the right to respect for private life) of the European Convention on Human Rights (ECHR).

The arguments against marriage

Steinfeld and Keidan share the view of many in the UK who believe that marriage is a patriarchal system, rooted in the outdated view that a woman becomes the property of her husband. Many couples want to give their relationship legal status but consider that marriage ‘is not for them’. The knock on effect of this is that many couples, both same sex and opposite sex, leave themselves exposed to significant hardship. There continues to be a belief in the UK that ‘common law marriage’ has some legal status and protects unmarried couples. The reality is that there is no such thing. Unless unmarried (or un-civil partnered) couples take great care to protect themselves through a cohabitation agreement, up to date wills and other documentation often requiring a pro-active ‘nomination’ – such as pension forms – they can find themselves in a mess if the relationship breaks down or one of the couple die.

Civil partnership over cohabitation agreement

As mentioned already, the only option currently open to opposite sex couples who do not wish to marry but wish to protect their rights to some extent is to enter into a cohabitation agreement. This is a document which covers practical aspects of the relationship and can set out what might happen - not just if the couple splits up (for example in terms of division of property and finance and residence/contact with any children) but other aspects of the relationship not covered by legislation. Unmarried/un-civil partnered couples must take particular care to make sure that they have up to date wills – under the intestacy rules, an unmarried partner is not recognised. Although case law is gradually filling the vacuum for unmarried/un-civil partnered couples, it is by no means ideal. The benefits of a civil partnership mean that a couple can have their relationship formally recognised, without having to ‘get married’ if they do not wish to do so.

The law may not change

Despite the ruling of the Supreme Court and the declaration that the Civil Partnerships Act (in particular sections 1 and 3) are incompatible with the European Convention on Human Rights, the UK Government is not bound to change the law. However, the Supreme Court has sent a very strong signal that the situation needs to be remedied.

If you are looking for a London family solicitor to discuss any aspect of your marriage or civil partnership, to draw up a cohabitation agreement or talk about divorce, OTS Solicitors can help. Book an appointment with one of our top London Family Solicitors by calling 0203 959 9123