For some reason, this post originally appeared in the name of Colin Yeo. It is not by Colin Yeo, but by Martin Downs. Apologies for that.
The future of civil partnerships is again in the news. In October, Rebecca Steinfeld and Charles Keidan tried to register a Civil Partnership at Chelsea Town Hall but were rebuffed on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. Their lawyer, Louise Whitfield of Deighton Pierce Glynn Solicitors has announced their intention to seek a judicial review and the couple have also started a petition.
Steinfeld and Keidan have rightly identified that CPs provide virtually the same rights and responsibilities as marriage that it is within the gift of government to provide. One of the few differences concerns pension rights and even this will be considered by the Court of Appeal in February 2015.
However, the couple are attracted by civil partnership as a social construct that comes without the historical baggage of patriarchal dominance/subjection of women. They also take aim at the sexist customs that surround it such as “giving the bride away,” virginal white dresses and hen and stag do’s.
Coincidentally, December also sees the second reading of a Private Member’s Bill by Tim Loughton MP aimed at amending the Civil Partnership Act to remove the stipulation in the Act that couples be of the same sex. Tim Loughton was perceived as an opponent of Same Sex Marriage but his Bill has support across the parties including Caroline Lucas (Greens) and Greg Mullholland (Lib Dem), Frank Field (Labour) and Mark Durkan (SDLP).
The government had already offered and undertaken a review of the future of Civil Partnerships with the aim of easing the passage of the Same Sex Marriage Act through Parliament. It reported in June and considered but rejected the option of opening up civil partnerships to different sex couples along with converting existing CPs to marriage and stopping the registration of new CPs so that it would become a legacy status only. The Consultation received over 10,000 responses but only 22% supported the extension of CP beyond same sex couples (in fairness the bigger consultation exercise in 2012 recorded a different result). The chief expressed concern was the possibility that to do so might undermine marriage.
The matter has already been the subject of litigation brought by Equal Love (Ferguson v UK 8254/11) to the ECtHR by couples challenging the then exclusion of same sex couples from marriage as well as different sex couples from civil partnership. The claim was dismissed as inadmissible a year ago citing the introduction of SSM in England &Wales.
The implication of this was that since 29 March 2014, same-sex couples have been offered 2 options (marriage or civil partnership) at Register offices in England and Wales. Different-sex couples are told that it’s marriage or nothing.
This looked somewhat tenuous after the Judgment of the Grand Chamber of the ECtHR in Vallianatos v Greece which found there been a violation of Article 14 taken in conjunction with Article 8 of the Convention in circumstances in which Greece had created civil unions but excluded same sex couples.
At the time of the government consultation on the future of civil partnerships, the doyen of Convention Rights in this field, Professor Robert Wintemute expressed the view that lesbian and gay equality means EQUAL rights, not SUPERIOR rights and added that, with luck, we will see the Civil Partnership (Opposite Sex Couples) Act 2015. Time has already run out on this deadline and it remains to be seen whether the next government would want the potential trauma that such legislation might entail
One way of looking at the problem is to consider that it is the continuation of civil partnerships at all which is the oddity. They have been abolished upon the introduction of same sex marriage in Norway, Denmark and Sweden and in New Hampshire, Vermont Connecticut, Rhode Island and Delaware in the US. However, in England and Wales many people who have entered civil partnerships treasure their bespoke character and will not choose to convert them to marriage when that becomes possible from 10 December 2014 and some couples might seek to register new civil partnerships.
However, it is only when we have about two years or so worth of statistics that we will discover how large a group that is. The government’s approach is one of wait and see. They face the problem that at the moment Same Sex Marriage is not available in Northern Ireland and so retention provides a mechanism for recognizing CPs from Northern Ireland. If the numbers of civil partnerships are relatively small they may decide that the cost and complexity of retaining a dual system is not worth it.
International developments may prove more important. If other countries abolish civil partnership in favour of same sex marriage or go straight for same sex marriage following the Portuguese example then it maybe that civil partnerships will become a historical artifact. Similarly it will be interesting to see how many other countries adopt civil partnerships or PACS for different sex couples. One of the main arguments for same sex marriage was that it meant that couples relationships would have obtained an international marque of approval that was clearly understood. Unless a critical number of countries adopt civil partnerships, there are going to be continual problems of international recognition and the question will be asked whether the upheaval that would be occasioned by their creation is worth it
Martin Downs is a barrister at 1 Crown Office Row and the author of Same Sex Marriage and Civil Partnerships: The New Law (Jordan, 2014)