The struggle for opposite-sex couples to be able to enter into civil partnerships is one that understandably is not at the top of many people’s list of concerns when it comes to the need for change in family law. Opposite sex couples can achieve a social status that recognizes the core values of love, trust, confidence mutual dependence etc from Article 8 by getting married. Just because you object to the institution of marriage does not mean the government should provide an alternative. But consider that there are approximately 3 million opposite-sex cohabiting couples in the UK (the fastest growing type of family in the UK) and a false belief by most of these that there is such a thing as ‘common law marriage’ and it starts to become clear that there may be both a demand and a need for an alternative way for opposite-sex couples to formalize their relationships. The government evidently recognizes this and the first reading of the Cohabitation Rights Bill took place on 4 June 2015. This would provide protection for people who live or have lived together as a couple, as well as those who survive a deceased cohabitant, but does not address the fact that opposite-sex couples cannot have a civil partnership – something former children’s minister Tim Loughton MP claimed leads to a ‘glaring inequality’.
England and Wales is now the only jurisdiction in which same-sex couples can choose between civil partnership and marriage, but opposite-sex couples wishing to formalize their relationship only have the option of getting married. And in France, for example, where civil solidarity pacts were brought in largely to offer some legal status to same-sex couples, 94% of these ‘PACS’ were between opposite-sex couples. This argument that the government cannot lawfully exclude opposite-sex couples from civil partnerships by reason of their sexual orientation is the angle that has been taken to remedy this situation. Charles Keidan and Rebecca Steinfeld are a couple from London who were told they could not enter into a civil partnership because they were not of the same sex and subsequently took their case to the High Court. They argued that the Civil Partnership Act is incompatible with Article 14 (read with Article 8) of the European Convention on Human Rights, which states that everyone should be treated equally by law, regardless of sexual orientation. In January 2016 Mrs Justice Andrews told them that their claim fell at the first hurdle – that the differentiation between same and opposite-sex couples does not fall within the ambit of the right to respect for private and family life. This decision surprised many people, both in its approach to how Articles 8 and 14 engage with each other, but also in that Mrs Justice Andrews acknowledged that many people will sympathize with Keidan and Steinfeld’s position. The next hearing is listed at the Court of Appeal on 2 and 3 November 2016.
N.B. A second reading of the Civil Partnership Act (Amendment) Bill designed to correct this inequality took place on 11 March 2016, but will make no further progress.
Jemma O’Neill (Senior Solicitor)
– Jemma O’Neill works in our matrimonial team specialising in finance and children cases on divorce and separation