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‘Crunch time’ for civil partnerships?

Posted: 22/05/2018

A heterosexual couple who wish to enter into a civil partnership, rather than a marriage, have now had their case heard by the Supreme Court. If the judgment of the Court of Appeal in the case of Steinfeld and Keidan v Secretary of State for Education is overturned, heterosexual couples as well as same-sex couples may be allowed to enter into civil partnerships.

In October 2014, Rebecca Steinfeld, 37, and Charles Keidan, 41, academics from west London, attempted to give notice of their intention to form a civil partnership but were refused on the basis that the Civil Partnership Act 2004 (which came into force in 2005 – nearly ten years before same-sex marriage became possible in England and Wales in 2014) only applies to same-sex couples. The couple initiated legal proceedings, arguing that the Government’s stance is not compatible with equality legislation.

The couple’s case was first rejected by the High Court in January 2016. The Court of Appeal also rejected the couple’s claim in February 2017 but they were granted the right to take their case to the Supreme Court on the basis that the court agreed that they had established a potential violation of Article 14 of the European Convention on Human Rights (protection from discrimination).

The couple, who have two children together, claim that marriage has ‘patriarchal baggage’. For example, marriage certificates set out details of the father of the bride and groom but not the mother. While the couple have ‘deep-rooted and genuine ideological objections’ to the concept of marriage, they wish to enter into a regime which has the legal recognition and benefits that marriage provides. They maintain that many cohabitees would prefer to be legally recognised as ‘partners’ rather than as ‘husband and wife’, and that if heterosexual couples were able to enter into civil partnerships this would be an appropriate alternative to marriage for many. It is claimed that not affording the couple this option amounts to discrimination and is a ‘disproportionate restriction on their right to a family life’.

At the Supreme Court, the couple’s arguments were rejected by the Government, whose lawyer highlighted that modern-day marriage did not require women to be ‘given away’ by their father, wear a white wedding dress, or have a ‘gender-segregated hen party’. Civil partnerships, it was submitted, are ‘essentially identical’ to marriage and were brought into force at a time ‘when society was not felt ready’ to recognise same-sex marriage.

The Government is also considering whether there remains enough demand for civil partnerships amongst same-sex couples following the introduction of same-sex marriage before making a decision on whether they should be extended to heterosexual couples. More time to consider this issue has been requested.

With the Supreme Court’s judgment reserved to a later date, this could be a pivotal moment for the future of civil partnerships. However, when one considers that the Government has publicly stated that this matter is under review, coupled with the President of the Supreme Court, Lady Hale’s recent comments that ‘it is not the job of the courts to legislate’, the Supreme Court may be reluctant to intervene in this issue at this particular moment in time.

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