Marriage, civil partnership and the future

Since the turn of the millennium, there has been rapid movement towards marriage equality between same-sex and opposite-sex couples around the world. Same-sex marriage is now legal in Argentina, Belgium, Brazil, Canada, Denmark proper, France, Iceland, Ireland, Luxembourg, the Netherlands proper, New Zealand proper, Norway, Portugal, South Africa, Spain, Sweden, the United States, and Uruguay, and in parts of Mexico.

In this country, things appeared to have come full circle, when, in January 2016, Hannah Steinfeld and Robin Keidan, a couple from London, attempted to force the government to open up civil partnership to opposite-sex couples by means of a judicial review. Although their case was not successful in the first instance, an appeal is planned and it feels like this imbalance in the law is unlikely to endure in the long-term.

A history of same-sex relationships in the UK

Under the common law of England and Wales, a marriage was defined as a voluntary, life-long, and exclusive union between one man and one woman. It should be remembered that a man could be executed for having sex with another man until 1861 and “homosexual acts” between men remained unlawful until 1967. Even then, the age of consent stood at 21, and later 18, until it was equalised to 16 from 2001. Such moves towards equality notwithstanding, same-sex couples were still unable to achieve legal recognition for their relationships.

This all changed in December 2005 when the Civil Partnership Act 2004 came into force. Same-sex couples could enter into a civil partnership, which provided equivalent rights and responsibilities to those enjoyed by married couples. Although there are still a handful of lingering differences between married couples and civil partners, for example in relation to some pension rights accrued before the coming into force of the Civil Partnership Act 2004, the legal position of those in a civil partnership is all but identical to those in a marriage. Civil partnerships are recognised and can be formed in all three jurisdictions of the United Kingdom (England and Wales, Scotland and Northern Ireland).

The Marriage (Same Sex Couples) Act 2013 came into force in March 2014. From this point on, same-sex couples in England and Wales could choose to either marry or enter into a civil partnership. Equivalent legislation came into force in Scotland in December 2014. However, same-sex marriage is neither allowed nor recognised in Northern Ireland. In that jurisdiction, a married, same-sex couple would be treated as if they were in a civil partnership.

Civil partnerships for opposite-sex couples?

The case of R (Steinfeld and Keidan) v Secretary of State for Education [2016] EWHC 128 (Admin) was heard in January 2016. Miss Steinfeld and Mr Keidan argued that the UK government could not lawfully exclude them from the institution of civil partnership on the grounds of their sexual orientation alone. By continuing to do so, the government was acting incompatibly with Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights.

They failed to convince the court that giving one option to opposite-sex couples and two options to same-sex couples was unlawful. However, the judge who heard the judicial review granted them permission to appeal to the Court of Appeal as the case raised issues of “wider importance”.

It should be stressed that the couple at the centre of the dispute were long-standing supporters of gay rights and marriage equality. They stated that they sought the opening up of civil partnerships to all so that any couple living together could achieve formal legal recognition of their relationship without the trappings of marriage, which they personally viewed as a patriarchal institution. It will be fascinating to see whether their appeal is successful. If it is, the current legislation would be declared “incompatible” with the European Convention on Human Rights and the government would almost certainly have to change the law.

Are civil partnerships declining?

I myself was surprised when the scheme for the introduction of same-sex marriage was announced. I was sure that either civil partnership would be phased out over time or both marriage and civil partnership would be opened up to all couples. However, the latest figures show that in England and Wales during the period March to December 2014, there were 4,853 marriages between same-sex couples and 1,224 civil partnerships. This represents a substantial drop in the number of civil partnerships formed compared with the same period the year before, but there is still a significant minority of same-sex couples choosing civil partnership over marriage. In addition, only a minority of couples have so far chosen to convert their existing civil partnership into a marriage. In many cases, this may have more to do with inertia than positive choice.

As figures for subsequent years are made available, the trends should become clearer but it feels as though civil partnership has gained traction in our culture and is seen, by many, as more than a staging post on the way to marriage equality. If the government is forced to open up civil partnerships to opposite-sex couples, then the institution seems even more likely to endure. Could we end up with a fully equal, two-track approach to the formalisation of relationships? Let’s wait and see.

 

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