The end of civil partnerships?

Posted: 27/06/2018

Civil partnerships discriminate against different sex couples and lack of government resources is no reason for delay - the law must be changed immediately - says the Supreme Court. 

In brief 

• The Government now has three choices regarding civil partnership (CP):
• abolish them, now that same sex marriage is allowed;
• stop any new ones being registered;
• open them up to different sex couples.

• Whatever it does, it needs to act quickly. 

• The judgment is significant, as it is based on the legal, cultural and social issues surrounding marriage, CP, discrimination and inequality around sexual orientation. 

• In England and Wales same sex partners have more rights than different sex partners – unlike any other jurisdiction in the world.

The judgment 

The Supreme Court has handed down judgment in Steinfeld and Keidan v Secretary of State for International Development today, Wednesday 27 June 2018. 

The court has found that the provisions of the Civil Partnership Act 2004 which prevent different sex couples entering into CPs are incompatible with the Human Rights Act 1998. 

The key issues in this case were: 

• whether a different sex couple should be able to enter into a CP as well as a marriage; same sex couples have been able to choose since 2014. 

• whether the state should allow this inequality to continue on an open ended basis. The Government’s position in court was that it was justified in adopting a ‘wait and see’ policy to better understand how same sex marriage impacts on CPs before deciding what to do: abolish CPs for all or extend them to different sex couples. 

Background

Rebecca Steinfeld and Charles Keidan are in a committed, long term relationship and have two children together. They wanted to formalise that relationship by entering into a CP.

They have ‘genuine, ideological objections to marriage’, because of its ‘historically patriarchal nature’. Under the current law, they would either need to remain as cohabitees and forgo formal recognition of their relationship and legal status or marry. But, as cohabitees, they cannot take advantage of, for example, the inheritance tax advantages available to those in a marriage or CP.

In July 2014, the Government identified three potential changes to be made to the law on CP in England and Wales:

• CPs could be abolished entirely, now that same sex couples have the option to get married;
• it could stop new CPs being registered; and
• CPs could be opened up to different sex couples. 

It concluded that no change should be made to legislation at that time because there was no ‘united view’ about what changes (if any) should be made. 

Steinfeld and Keidan rejected the Government’s ‘wait and see’ position and applied to court to challenge that decision. 

The Government said it needed to see more data before taking any steps – it was not made clear exactly what data was needed, how long it would take to compile that data or how that data would assist on the central issue.

The legal process so far

The Court of Appeal’s view was that the current ‘bar’ against different sex couples did constitute a breach of Steinfeld and Keidan’s human rights but recognised that this breach could be justifiable on the basis put forward by the Government.

The Government did not want to take any action without more information, in part because of the potential cost and disruption.

The Supreme Court disagreed with both the High Court and the Court of Appeal. It found that the bar does constitute a breach of human rights and the fact that the Government has delayed in rectifying this is not justifiable.

It says that the Government was obliged to eliminate the inequality of treatment between different sex couples and same sex couples immediately upon the law permitting same sex marriage coming into force.

This could have been done, it says, ‘by either abolishing civil partnerships or instantaneously extending them to different sex couples’.

It has made it clear that ‘taking time to evaluate whether to abolish or extend [CPs to different sex couples] could never … amount to a legitimate aim for the continuance of the discrimination.’

What next? 

In a timely move, the Government published a command paper on the issue of how to proceed in respect of CPs in May 2018. It is now up to Parliament to decide how to remedy the discriminatory position that it has designed.

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