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The Decision That Disappointed Many Cohabiting Couples

View profile for Helen Dexter
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The Court of Appeal this week disappointed many cohabiting couples. The court did not grant Rebecca Steinfield and Charles Keidan permission to obtain judicial review of the decision by the Secretary of State for Education’s decision, at this stage, not to propose any change to the law which prevents opposite-sex couples from entering into a civil partnership.

A civil partnership can be entered into only by same sex couples.  A civil partnership is different from marriage in numerous ways (in addition to the fact that the parties have to be of the same sex) the most striking being that a civil partnership is registered by the signing of a document, no words are spoken and the formation is entirely a civil event, no ceremony is required. Civil partnerships are recorded in an electronic register  (a paper certificate can be obtained) rather than just a paper certificate and hard copy register as with marriage. Additionally both parents of both parties are included in the record whereas with marriage, the certificate purely records the name of the father of each party.

The rules relating to annulment and divorce/dissolution also differ between marriage and a civil partnership.

 Many same sex couples feel that marriage does not suit their circumstances and wish to enter into a civil partnership.  However, this is not currently possible and Ms Steinfield and Mr. Keidan wanted permission to challenge that. 

The Court of Appeal decided that the inability of a same sex couple to enter into a civil partnership was a potential breach of human rights.  The Judges felt that they should not, however, make any declaration of incompatibility with the human rights of Ms. Steinfield and Mr. Keidan.  The Judges however had different reasons as to why such a declaration should not be made. Two of the three Judges felt that the difference that exists between same sex and opposite sex couples could be justified by the Secretary of States’s policy of “wait and see”.  This enables the Secretary of State more time to properly assess the situation following the introduction of same sex marriage and to decide on the best way forward as a matter of social policy.  The third Judge, Lady Arden felt that the potential breach of the human rights of Ms. Steinfield and Mr. Keidan was not justified by the “wait and see” policy and although the Secretary of State was able to reformulate the policy the current policy was “open-ended in time”.  In essence Lady Arden stated that her overall conclusion was that Ms. Steinfield and Mr. Keidan were right.

One important issue is that a cohabiting same sex couple have no additional rights as result of the judgment. An even more important point to note is that a cohabiting couple, whether of the same or opposite sex, must consider what would happen to their estates if one or both of them were to die.

The judges referred to the rise in numbers of cohabiting couples. The intestacy rules, which apply when someone dies without a Will do not include partners and, instead, provide that if you are not married, your estate be distributed between your blood relatives in a particular order.  There is no such thing as a common law spouse.

I strongly advise that any person who lives with their partner, either in a same or opposite sex relationship, makes a Will and plans for any inheritance tax liability that may arise upon their death.  Pensions and life policies also need to be considered.  If this is not done,  massive problems could be caused for the surviving partner who has no right to inherit from the deceased at a time when they could really do without them.

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