Should civil partnerships only be available to same sex couples?

13 May 2018 by Martin Downs

Following on from the UK Supreme Court’s special session in Belfast hearing the “Gay Cake” case, the Court now gathers in London to hear oral arguments in the Equal Love litigation whose factual origins are somewhat closer to Parliament Square in more ways than one.

Rebecca Steinfeld and Charles Keidan contend they were unlawfully refused an opportunity to register a Civil Partnership at Chelsea Town Hall on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. This exclusion started to appear somewhat anomalous when the government opened marriage up to same sex couples by way of the Marriage (Same Sex Couples) Act 2013. The effect of this is that same sex couples in England and Wales (and Scotland – but not Northern Ireland) had a choice of marriage and civil partnership but different sex couples only had the former option.

What then is to be the future of the status of Civil Partnership created in 2004 (and covering the whole of the UK)? Most countries, upon enacting, same sex marriage abolished civil partnership schemes or barred new entrants to their schemes (like the Republic of Ireland). A few countries like the Netherlands, where civil partnership regimes are open to different sex couples as well, left couples with a choice of arrangements. Uniquely England, Wales and Scotland have (at present) left in place a situation in which same sex couples can choose between Civil Partnership and marriage but different sex couples only have the latter available to them.

This Blog has covered the story of the Steinfeld from the very beginning. The original hearing was in front of Mrs Justice Andrews and the arguments were examined by Professor Rob Wintemute in these pages. Ultimately, as reported by Adam Wagner, Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.

A challenge to this ruling failed in the Court of Appeal who considered that the bar constitutes a potential violation of the appellants’ human rights under article 14 ECHR (prohibition of discrimination) when read with article 8 (right to respect for private and family life.) However, the majority held that the prohibition formed part of the Secretary of State’s policy of “wait and evaluate.” In the context of a pending Private Members Bill on the issue, the Court refrained from making a declaration of incompatibility with the appellants’ rights under the ECHR.

Tim Loughton MP has made a series of attempts to change the law. The latest iteration of this effort is the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill (HC Bill 11). After discussion with the government, this calls for the preparation of a report assessing how the law ought to be changed to bring about equality between same-sex couples and other couples in terms of their future ability or otherwise to form civil partnerships. With the government preoccupied by the problems of bringing about Brexit, it is unclear how quickly this will be undertaken.

The Courts have been busy in the meantime also. In Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916, as analysed in this blog, the Court of Appeal ruled that cohabiting couples should have a right to claim bereavement damages, putting them in a position analogous to spouses and civil partners. The European Court of Human Rights also handed down Judgment in Ratzenböck and Seydl v Austria in late 2017 – the implications of which for Steinfeld were analysed in a significant article on this site by Professor Helen Fenwick and Dr Andy Hayward. The arguments were also considered in depth by scholars from all over the world in a book edited by Dr Andy Hayward and Jens M. Scherpe, The Future of Registered Partnerships, family recognition beyond marriage? which contains a particularly powerful article by Professor Norrie from Strathclyde University setting out the potential problems of opening up civil partnership to different sex couples.

In the week before oral arguments are to begin in the Supreme Court, the Equalities Minster released a paper, The Future Operation of Civil Partnership: Gathering Further Information which argued that the Government needs to undertake research on four matters before arriving at a decision as to the future of civil partnerships:

• Trends in civil partnership and marriage amongst same-sex couples (it was able cite the fact that only 890 civil partnerships were registered in 2016 in England and Wales albeit this was an increase of 3.4% in civil partnership formation in 2016 compared to 2015;
• Survey to assess demand for civil partnership and marriage amongst opposite-sex couples in the UK;
• Research into the motivations of same-sex couples who choose civil partnership; and
• Review of what has happened in other countries.

This generated lurid headlines in The Sunday Times, Tories may scrap civil partnerships . This seems somewhat hyperbolic. In reality, the government is most likely to study whether there is any real demand for the opening up of civil partnerships to opposite sex couples or whether, in the alternative, civil partnerships should be closed to new entrants as was done in the Republic of Ireland after they enacted same sex marriage after their historic referendum.