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Civil partnerships for all? Maybe not yet..15th May 2018 Family Law
Since the introduction of same-sex marriage in March 2014, there has been no consensus on what should happen to civil partnerships. All couples in civil partnerships are now entitled to convert their civil partnership into a marriage with minimal administrative fuss, though this has not been without problems for a small number of couples who have gone on to experience difficulty in securing the recognition of such marriages abroad.
Despite the availability of marriage for all (except in Northern Ireland), a significant number of couples in existing civil partnerships have chosen not to convert their union into a marriage and a small but not insignificant number of same-sex couples continue to opt for civil partnerships. All the while, civil partnerships have remained closed to opposite-sex couples. The Isle of Man offers a choice of civil partnership or marriage to all couples but Manx civil partnerships between opposite-sex couples are not recognised on the mainland.
This week, Charles Keidan and Rebecca Steinfeld, an opposite-sex cohabiting couple opposed to marriage on ideological grounds, will be asking the Supreme Court to rule that keeping civil partnerships out of reach for couples in their situation is discriminatory and a breach of their human rights. Their previous requests in the High Court and Court of Appeal have been rejected. The Court of Appeal agreed that if civil partnerships continued to be unavailable for opposite-sex couples in the long-term, this would indeed be discriminatory. However, they found (by a 2:1 majority) that because the government was engaged in a sort of 'wait and see' process about the future of civil partnerships, they were acting lawfully.
The Supreme Court hearing starts this week and you can even watch live here. I think we can expect some deep analysis of the nature of marriage and the modern family as well as some (perhaps more technical) scrutiny of whether the government's 'wait and see' approach is good enough to satisfy its obligations to respect its citizens' right to a private and family life and to avoid discrimination.
Just as the Supreme Court justices were busy sharpening their pencils ready for the hearing at the end of last week, the government published a paper entitled 'The Future Operation of Civil Partnership: Gathering Further Information'. This sets out some actual dates for how the 'wait and see' process is likely to pan out. They say they should have enough data by the end of September 2019 to assess ongoing demand for same-sex civil partnerships. They plan to survey unmarried cohabiting couples on their attitudes to opposite-sex civil partnerships using existing periodical survey methods to assess demand there. A full public consultation on the topic will be launched 'at the earliest' in 2020. It feels very much as though the government has had some last minute legal advice on how they might keep the Supreme Court off their back and declaring that their approach is incompatible with their citizens' human rights.
Have they done enough? My prediction is that the government may have done just enough to prevent an embarrassing 'declaration of incompatibility" from the Supreme Court. However, if the future of civil partnerships is not legislated for in the next few years either by closing off civil partnerships completely or opening them up to all couples the government might find itself in the firing line in future.