Supreme Court Makes Ruling On Civil Partnership Case

The Supreme Court has made a landmark ruling on the issue of whether the current civil partnership laws discriminate against heterosexual couples.

Late last month, the UK’s highest court held that preventing different-sex couples from entering into civil partnerships was incompatible with article 8 of the European Convention on Human Rights (ECHR) when this article was read alongside article 14.

Article 8 states:

Article 8 – Right to respect for private and family life

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14 sets out that any rights and freedoms provided in the ECHR shall be available without discrimination on several specified grounds (including sex, race, or colour) and “other status”. Salgueiro Da Silva Mouta v Portugal (1999) 31 EHRR 47 established sexual orientation qualifies as a ground on which discrimination under article 14 is prohibited.

The Supreme Court ruling does not mean heterosexuals are now free to enter into civil partnerships.  Only Parliament can change the law to make this happen.  However, the ruling does make the possibility of a law change more probable, as it is very difficult for the government to retain a law the courts have ruled is discriminatory.

Why has the road to heterosexuals being allowed to enter into a civil partnership been so difficult?

One of the reasons civil partnerships have never been extended to heterosexual couples is that the government when it had the opportunity to extend civil partnerships five years ago, did not want anything to derail the passing of the Marriage (Same Sex Couples) Act 2013.

Many viewed the passing of the Civil Partnership Act 2004 as an avoidance tactic by the government at the time.  It granted same-sex couples essentially the same rights as marriage, but held less emotional and societal weight.  For example, one of the grounds for irreconcilable differences between a couple who wish to divorce is adultery.  This is not a ground for the dissolution of a civil partnership.

The government has even toyed with the idea of abolishing civil partnerships altogether, now that the right to marry is available to all.  However, this creates two major problems.  Firstly, it would result in destruction of the certainty and legal protection enjoyed by 63,000 same-sex couples who are currently in a civil partnership.  And secondly, not everyone wishes to enter into the institution of marriage.  And its alternative, cohabitation, provides almost zero legal protection, regardless of how long a couple have lived together for.

Will the Supreme Court’s decision have the knock-on effect of making the government provide cohabiting couples greater legal rights?

Theresa May’s government seems determined to drag its heels when it comes to bringing family laws in England and Wales into line with the realities of family life and social norms in 2018.  Rebecca Steinfeld and Charles Keidan, who fought for the right to enter into a civil partnership as a different-sex couple, never wanted to marry because of the religious and patriarchal history and associations that they believe are linked to the institution.  There are many others like them.  According to the Office of National Statistics (ONS), cohabitees were the fastest growing family type in 2017 and made up the second largest family type after married or civil partner couple families.  Yet, as the law stands at present, they have no legal rights to property (unless they are featured on the title or can claim under The Trusts of Land and Appointment of Trustees Act 1996).  In addition, if one partner dies intestate (i.e. without a Will), the surviving partner has no legal right to benefit from the Estate.

The recent case of Owens v Owens, which has also reached the Supreme Court, has created a call for no-fault divorce to be introduced in the UK.  Again, the government seems reluctant to push this forward, despite calls from almost every prominent family law professional to have the law changed.

From these cases and the commentary surrounding them, it is fair to conclude that much of the existing UK family law needs updating.  The Cohabitation Rights Bill 2017-19 has been introduced as a Private Member’s bill by Lord Marks of Henley-on-Thames, and had its first reading on 5 July 2017.  It is currently languishing in the bowels of Parliament, awaiting its second reading.

The tail-dragging behaviour surrounding the Cohabitation Rights Bill 2017-19 signals that we should not expect any major reform of family legislation anytime soon.  But that does not mean the fight should be extinguished – far from it.  The more pressure put on the government from the courts, and via professional organisations such as Resolution, the more chance a fair, up-to-date family law system will be achieved.

Bennett Griffin are award-winning Solicitors based in West Sussex. From our office in central Worthing our experienced and specialist Solicitors offer a comprehensive service and will work with you in an honest, considered, and practical manner. Our family law team can advise and represent you in matters regarding marriage and civil partnerships.  Please contact us on 01903 229 999 or by email at info@bennett-griffin.co.uk for more information.

The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.