The Supreme Court has today ruled in favour of allowing heterosexual couples the right to elect to have a civil partnership instead of a marriage, after a lengthy court battle in which a mixed-sex couple argued that their Human Rights were being breached by domestic law not permitting civil partnerships to heterosexual couples.
You may recall our recent blog post regarding Rebecca Steinfeld and Charles Keidan’s fight to be allowed to enter into a civil partnership instead of a marriage.
Today (27th June 2018), the Supreme Court gave its judgement on the matter, and have unanimously ruled that Rebecca and Charles’ appeal should be allowed, on the basis that the current law around civil partnerships is incompatible with the European Convention of Human Rights.
The application
Rebecca and Charles have been in a long-term relationship and have two children, however wanted to enter into a civil partnership over marriage, as they explained that they wanted to raise their children as equal partners “and feel that a civil partnership - a modern, symmetrical institution - sets the best example for them".
They further argued that, when the Marriage (Same Sex Couples) Act came into force in 2013, the Act made marriage of same-sex couples lawful, and that as a result of this, same-sex couples were given the choice as to whether they wanted a civil partnership or a marriage. The same choice was not afforded to heterosexual couples; there was no formal union alternative to marriage. Rebecca and Charles argued that they considered marriage to be ‘historically patriarchal’ and wanted a civil partnership which would “reflect their values and give due recognition to the equal nature of their relationship”.
The judgement by Lord Kerr states, by way of background, that:
“The appellants are a different sex couple who wish to enter into a legally recognised relationship. They have a conscientious objection to marriage. They want to have a civil partnership with one another. They have been in a long-term relationship and have had two children together. It is not disputed that their unwillingness to marry is based on genuine conviction. Nor is it disputed that their wish to have their relationship legally recognised is other than entirely authentic.”
The current law
The couple argued that the current law as set out in the Civil Partnership Act 2004 was incompatible with the European Convention of Human Rights (ECHR), in particular sections 1 and 3 of the Act. Section 1 specifies that “A civil partnership is a relationship between two people of the same sex (“civil partners”)”, and Section 3, which sets out who is eligible to apply for a civil partnership, says “(1)Two people are not eligible to register as civil partners of each other if (a) they are not of the same sex”
The decision
Lord Kerr considered the arguments put forward by both sides, and noted that the issue was whether, by not affording heterosexual couples the choice to enter into a civil partnership, this breached their rights under Article 14 (the prohibition on discrimination) and Article 8 (the right to respect for a private and family life) of the European Convention on Human Rights (ECHR). He concluded that Sections 1 and 3 of the Civil Partnership Act sections are incompatible with Article 14 of the ECHR.
The Supreme Court has the power under Section 4 of the Human Rights Act to make a declaration of incompatibility – this is where the court has the power to determine whether a provision of primary legislation is or is not compatible with a convention right, and make a declaration of incompatibility if it is not.
The Judge stated in his judgement “I would allow the appeal and make a declaration that sections 1 and 3 of CPA (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.”
What this means
This is a breakthrough decision by the Supreme Court, as this confirms that both heterosexual and same-sex couples should have the choice as to whether they enter into a civil partnership or a marriage, should they want to formalise their union.
It remains to be seen whether this decision will lead to a change in the law but there is certainly significant pressure upon the government now to allow heterosexual couples to decide whether they wish to enter into civil partnerships instead of marriage.
Sources: BBC News, Family Law Week, Stephensons family law blog
By Ceri Thomas and Megan Ryan-Loughran in the family law department
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