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Civil Partnerships and the right to a private and family life

A heterosexual couple, Charles Keidan and Rebecca Steinfeld, who want to enter into a civil partnership rather than get married, recently lost a legal challenge at the High Court in London. Mr Keiden and Ms Steinfeld brought legal proceedings after being told by a Chelsea Register Office that they could not register a notice of intention to form a civil partnership because they are a man and a woman. The Civil Partnership Act 2004, which applies to the UK as a whole, defines a “civil partnership” as “a relationship between two people of the same sex” which is formed when either: (1) they register as civil partners of each other; or (2) they are treated as having formed a civil partnership by virtue of having registered an overseas relationship. What is crucial to this definition, and what was at the crux of Mr Keiden and Ms Steinfeld’s case, is that to be capable of being registered as a civil partnership the relationship must be between “two people of the same sex.” This therefore precludes two people of the opposite sex from entering into a civil partnership. The couple’s barrister, Karon Monoghan QC, had argued that this definition is incompatible with Mr Keiden and Ms Steinfeld’s right to a private and family life and discriminates against them.
By way of some background information, the Civil Partnership Act 2004 received Royal Assent on 18 November 2004 and came into force amidst a growing recognition that same sex couples should have a means by which to have their relationship recognised akin to the way couples of the opposite sex can through marriage. There was also a recognition that same sex couples should be afforded similar rights to those that heterosexual couples are afforded when they marry. The Act itself does not bestow exactly the same rights on civil partners as it does spouses, but it does confer very similar rights in relation to matters such as in property, social security and pension benefits, and also the ability to acquire parental rights and responsibilities for a partner’s child(ren). Similarly, the means by which a civil partnership can be brought to an end are similar to the ways in which a marriage can brought to an end, with a process called “dissolution” being very similar to “divorce” should the civil partnership not end in either death or annulment. There is also a difference as to the way civil partnerships can be entered into, with various political, religious and social considerations resulting in the Act stating that, whilst marriage ceremonies must be public and can be conducted by clergy, civil partnerships can be entered into in private.
Ever since the 2004 Act came into force, however, there have still been concerns over the fact a decision was made to choose the term “civil partnership” for a same sex union as opposed to simply extending the definition of marriage, which in Scotland was only ever defined in the Marriage (Scotland) Act 1977 as being “marriage between a man and a woman”. Commentators have suggested that most campaigners accepted the “civil partnership” title because they had secured the underlying rights, but there remained those who campaigned for same sex couples to be granted the right to marry.
That issue has now been remedied in Scotland by the Marriage and Civil Partnership (Scotland) Act 2014, which states that “References (however expressed) in any enactment to (a) marriage (including a marriage that has ended); (b) a person who is (or was) married to another person; and (c) two people who are (or were) married to each other, are references to marriage whether between persons of different sexes or persons of the same sex and to a party (or former party), or as the case may be the parties (or former parties), to such a marriage.”
In essence, this now means that same sex couples have the right to marry each other in the same way that heterosexual couples do. Similar provisions have also been introduced in England and Wales under the Marriage (Same Sex Couples) Act 2013. However, what this also means is that same sex couples now have a choice as to whether they enter into a civil partnership or whether they enter into a marriage, and the central argument in Mr Keiden and Ms Steinfeld’s case was that they, as a heterosexual couple, should be afforded the same choice, which they do not currently have under the existing legislative regime. Indeed, as above Mr Keiden and Ms Steinfeld’s case argued that the different treatment of same sex and opposite sex couples infringed upon their right to a private and family life enshrined in Article 8 of the European Convention of Human Rights.
This is a particularly interesting case and is one that raises further questions as to equality. The UK Government has said at this stage that, whilst it consulted on the issue, it found a lack of consensus and so does not plan to make any further changes to the law. Indeed, one the UK Government’s arguments in this case was that, because same sex couples are now able to marry, civil partnerships might be abolished or phased out in the future and that any further changes to the legislation before then would be “costly and complex”. The future of civil partnerships is something that the Scottish Government has also sought to review recently, with a consultation last year considering various options in that regard including making no changes to the law, abolishing future civil partnerships or extending the definition of civil partnerships so as to allow opposite sex couples to enter into them.
In this case, Mrs Justice Andrews said in her decision that the UK Government was “acting well within the ambit of discretion afforded to it with regard to the regulation of social matters” and that, in her opinion, “Opposite sex couples are not disadvantaged by the hiatus, because they can achieve exactly the same recognition of their relationship and the same rights, benefits and protections by getting married, as they always could”. In her concluding remarks Mrs Justice Andrews went on to say that: “The (UK) Government’s decision to wait and see serves the legitimate aim of avoiding the unnecessary disruption and the waste of time and money that plunging into a programme of legislative reform without waiting is likely to produce.”
What is clear is that the coming into force of the Marriage and Civil Partnership (Scotland) Act 2014 in Scotland and the Marriage (Same Sex Couples) Act 2013 in England and Wales has seen great strides made in the UK towards equality for couples of the opposite sex and couples of the same sex. However, it would also appear that the coming into force of these Acts has also raised further questions as to whether they do in fact create a certain level of inequality, and we will have to wait and see whether those questions will be answered during the course of Mr Keiden and Ms Steinfeld’s case should they choose to appeal as they have said they intend to do.
In the event you have any questions in relation to the foregoing or, indeed, about any family law matter whatsoever, please contact a member of our Family Law Team.