Sue Ellingham
Posted on 4 Sep 2018

Different sex couple should be permitted to enter a civil partnership rather than marriage

Rebecca Steinfeld and Charles Keidan are a different sex couple who have been in a long-term relationship and have had two children together.  They wish to enter into a legally recognised relationship. They have a genuine, conscientious objection to marriage which they regard as “patriarchal”. They would prefer instead to formalise their relationship by entering a civil partnership, a legal arrangement which they feel better reflects their desire for true “equality”.

The legal problem

Rebecca and Charles found that their preference for a civil partnership over marriage presented a legal problem. When Parliament enacted the law enabling same sex couples to enter into a civil partnership (the Civil Partnership Act 2004) (CPA), it allowed only two people of the same sex may to enter into a civil partnership.

10 years later, mainly in response to demand, the law was amended to allow same sex couples to have the choice either to enter into a civil partnership or to marry (The Marriage (Same Sex Couples) Act 2013) (MSSCA). The introduction of marriage for same sex couples did not, however, result in a change of the CPA.

The result was that, while same sex couples have the choice of marriage or a civil partnership, opposite sex couples may only marry: they are not permitted to enter a civil partnership.

An application to the court

Rebecca and Charles felt (and still feel) that the law amounted to direct discrimination of different sex couples, preventing them from having the choice of a civil partnership or a marriage which, since 2014, has been available to same sex couples. Accordingly, they issued an application to the court for a formal “declaration of incompatibility”.

Such an application, if successful, permits the court to state formally that the rights of an individual or a group have been breached and that a part of the law as passed by Parliament is inconsistent with rights under the European Convention on Human Rights as brought into UK law by the Human Rights Act.

The application by Rebecca and Charles was unsuccessful in the High Court and the Court of Appeal. They were able to persuade the Supreme Court to give them permission to appeal those decisions: the Supreme Court recently decided their case.

The result of the case in the Supreme Court

The issue before the Supreme Court was whether the bar on different sex couples entering into civil partnerships was incompatible with the rights of Rebecca and Charles under 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).

It was accepted by the government in court that the difference between the options available to same sex and opposite sex couples amounted to discrimination. However, it was said that that difference was “legitimate” as it gave the government time to “consult” on the issue and then make a decision, as a matter of public policy, on how to deal with the accepted discrimination between the two groups.

The judges in the Supreme Court decided that for the Government to “tolerate” the discrimination whilst it made its decision was not “legitimate”. The court went on to declare that “the government had to eliminate the discrimination immediately” This could be done by abolishing civil partnerships or by instantaneously extending them to different sex couples.

The court pointed out that for the government to delay dealing with the discrimination could be “far reaching” and that “a couple may suffer serious fiscal disadvantage if one of them dies before their relationship is formalised”. The court was particularly concerned that the government has not even attempted to disclose any “end point” for their deliberations on the research on the present inequality of treatment.

The consequences of the decision

Whilst the law gives to the courts the right to make such a declaration of incompatibility, what the court does not have is the ability to direct or compel Parliament to act on its decision. It is usual, when such a declaration is made for the government of the day to act upon it but there is no absolute time limit for doing so.

Rebecca and Charles can hope that the government will feel compelled by the strong decision of the highest court in the land that the continuing changes in the way in which people wish to organise their private lives should lead to a relatively simple extension of the rights of opposite sex couples. It remains to be seen how the government will respond.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by e-mail or telephone. Exeter +44 (0)1392 688688 or Sidmouth +44 (0)1395 512515.