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Supreme Court decision for different-sex civil partnership

family law advice

Supreme Court decision is in. Comment below from our Director and family solicitor, Henry Venables:

“It is with some surprise that I note today the decision of the Supreme Court in this case, as many suspected the Judges in the Supreme Court would refuse the appeal – as both the High Court and Court of Appeal have done in previous hearings.

“However, the five Judges have unanimously agreed that the prohibition on different-sex couples from choosing between marriage and a civil-partnership breaches their human rights, and is accordingly discriminatory.

“This decision will now put pressure on Parliament to change the law. If the law does change it will mean that same-sex and different-sex couples will be able to formalise their relationships using either marriage or a civil partnership.  Such a freedom of choice has to be considered a good thing. Whilst for many, marriage remains a positive tradition, but for others it can represent hallmarks of an old-fashioned and patriarchal society. The ruling in this case should be welcomed across the board.

“Interestingly, the judges criticised the Government for failing to deal with the discrepancy between same-sex couples’ ability to choose between civil partnerships and marriage, and different-sex couples who only have marriage when the Marriage (Same Sex Couples) Act came into force in 2013.


The Case


The case has been brought by Rebecca Steinfeld and Charles Keidan. They argue that they (a different-sex couple) should be allowed to enter into a civil partnership. At the moment, civil partnerships are only available to same-sex couples


The other party to the case is, in effect, the government  (more specifically the Secretary of State for the Home Department) as it is responsible for the legislation which is challenged.


The Supreme Court has been asked to determine whether preventing different-sex couples from entering into civil partnerships is a breach of Human Rights, specifically Article 14 together with Article 8 of the European Convention on Human Rights.


Civil Partnerships


Civil partnerships were introduced under the Civil Partnership Act 2004. The first civil partnership ceremonies took place in December 2005.


Before civil partnerships were introduced, there were no legal routes for same-sex couples to formalise their relationships. This meant that no matter how committed a same-sex relationship was, a same-sex couple could never have the same rights as different-sex couples who were married.


The Civil Partnership Act introduced civil partnerships as a way of giving same-sex couples a way to acquire the same or comparable status as a married different-sex couple.


Between December 2005 and December 2016 (the latest available figures), a total of 64,372 couples in England and Wales have entered into a civil partnership. The year when most people entered into civil partnerships was 2006 


The Marriages (Same Sex Couples) Act 2013 introduced the right for same-sex couples in England and Wales to marry. The first marriages of same-sex couples took place on 29 March 2014. Provision was also made for same-sex couples to be able to convert their civil partnership into a marriage. This took place from 10 December 2014.


Since the introduction of same-sex marriage, the number of civil partnerships has declined. For example, 229 couples entered into civil partnerships in January 2014 but only 54 in January 2015.


As a result of these recent changes, it is now possible for same-sex couples to enter into a civil partnership or a marriage. Different-sex couples can only enter into a marriage.


Why has this case been brought?


Ms Steinfeld and Mr Keidan wish to formalise their relationship, but do not want to enter into a marriage. They argue that different-sex couples should be allowed to enter into civil partnerships.


Their reasons are summarised in the judgment from the Court of Appeal :  “The appellants, Rebecca Steinfeld and Charles Keidan, are a young couple in a committed long-term relationship. They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They consider that the status of civil partnership would reflect their values and give due recognition to the equal nature of their relationship. Ms Steinfeld and Mr Keidan in good faith consider that marriage does not reflect the way in which they understand their commitment to each other or wish their relationship to be seen.”


Ms Steinfeld and Mr Keidan also focus on the impact of their legal status on their child: “Ms Steinfeld states in her witness statement that it is very important to them to have a civil partnership as the legal framework within which to raise their child as a CP would give their child a stable environment in which to grow up. They want their child to see the relationship as one of total equality reflecting the equal independent contribution which both parties make. They also desire the financial benefits of marriage and civil partnership, for example the rights of inheritance and relief from inheritance tax on death.  This would protect their child in the case of their premature death.


The Government has been reluctant to review or change the legislation and this is why they have opposed Ms Steinfeld and Mr Keidan’s case.  The Government’s view is “A decision has been taken by the Government, following two public consultations and debate in Parliament, not at this stage to seek to persuade Parliament to extend civil partnerships to opposite-sex couples, abolish them or phase them out. Instead it has decided to wait to see how extending marriage to same-sex couples (made possible by the [2013 Act]) impacts on civil partnerships before making a final decision as to their future.


The case so far


The case is based on a legal application known as judicial review, where the courts are asked to consider whether a decision made by a public body is lawful. You can read more about judicial review here.


Two lower courts (the High Court and the Court of Appeal) have so far decided that the legal position did not have to be changed, at least for the moment. One of the judges in the Court of Appeal summarised their decision: “the discrimination between the position of same-sex couples who now have the choice of two legal regimes recognising their relationship and different-sex couples who have only one legal regime is at present justified. It is, in my judgment, justified by the Government’s legitimate aim of undertaking a proper assessment of the optimum way forward in the light of the demand by couples (whether same-sex or different-sex) for civil partnerships as well as marriage, and inter alia avoiding unnecessary expenditure of taxpayers’ money as well as wasted time and effort in making a change that might have to be reversed.”


Ms Steinfeld and Mr Keidan have made a further appeal to the Supreme Court. A hearing took place before the Supreme Court in May 2018 and judgment will be handed down on 27 June 2018.


The Supreme Court case is being decided by Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lady Black. Two of the judges are known for their experience in Family Law:


  • Lady Hale is the President of the Supreme Court and as a barrister specialised in Family and Social Welfare Law and was involved with the Law Commission’s work on the Children Act 1989 and Family Law Act 1996.


  • During his career as a barrister, Lord Wilson practised almost exclusively in Family Law; and he was a judge of the Family Division of the High Court for 12 years.


Separately to the process through the courts, there have been attempts in parliament to amend the Civil Partnership Act to enable different-sex couples to enter a civil partnership. Further information can be found in the House of Commons Library briefing paper.


What does this mean


The Supreme Court is considering whether there is a breach of Ms Steinfeld and Mr Keidan’s Human Rights.


If the Court find that there is a breach, then it can make a declaration that the legislation is compatible with human rights. This does not affect the validity of the legislation. It will then be for Parliament to decide whether to amend the relevant legislation.


The Supreme Court is likely to adopt a cautious approach in how it deals with the appeal and explains its decision. This is particularly the case if it were to agree with Ms Steinfeld and Mr Keidan: the Supreme Court would want to avoid any accusation that it is trying to change the law.


The Supreme Court will need to distinguish between any sympathies that they may have with Ms Steinfeld’s and Mr Keidan’s positions and the actual legal test that they are being asked to apply, which centres on the alleged breach of Human Rights.


The fact that the question has already been raised in Parliament through the Civil Partnership Act 2004 (Amendment) Bill suggests that there is potentially scope for change notwithstanding the Supreme Court’s decision. It may therefore be the case that the real value in any decision to uphold the appeal will be in how quickly the Government will act and how far things will change.


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