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Why The Supreme Court Backed Heterosexual Civil Partnerships

View profile for Wendy Beacom
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The Supreme Court this week said a ban on heterosexual couples entering civil partnerships instead of marriage was "incompatible" with human rights laws. Wendy Beacom, a Legal Executive at our North East firm, explains how it helps fight Parliament's controversial “wait and see” policy....

The Supreme Court has given judgment to the appeal of Rebecca Steinfeld and Charles Keidan highlighting that different sex couples cannot enter into a civil partnership.

The parties issued court proceedings against the Secretary of State on the basis of discrimination that, whilst a same sex couple can either enter into a civil partnership or marry, different sex couples can only marry.

The Civil Partnership Act came into force in 2004 with the Marriage (Same Sex Couples) Act coming into force in 2013.  The earlier legislation was not abolished, thus allowing same sex couples to have a choice not available to different sex couples.

Parliament stated that it should be given a reasonable period of time to reflect on evolving social attributes to same sex marriage before considering whether to abolish the Civil Partnership Act or not.  This is Parliament’s “wait and see” policy.

Yesterday’s decision concerned whether the current bar on different sex couples entering into civil partnerships breached rights under the European Convention of Human Rights. The outcome of the Supreme Court’s decision declares that civil partnerships are incompatible with human rights and thus discriminates against different sex couples. It also once again highlights that some different sex couples may not wish to marry (for religious or other reasons) but still want to ensure they have financial security. The purpose of the Civil Partnership Act was to enable same sex parties on separation having legal rights to seek redress in respect of their financial positions or in the event of one party’s death.

The current law for cohabitation couples outside of marriage is very limited, for example against a partner who is not working or has limited income or may not own property with the other party.  Upon separation, the weaker party is not able to seek maintenance for themselves personally, a lump sum or a transfer of property.   The only claims would be for the benefit of children under the Children Act 1989 and often settlements for the benefit of the child revert back to the financially stronger party upon the child reaching adulthood.  This is clearly discriminatory.  Further upon one party’s death and in the absence of a will, then assets do not pass as they would if the parties were in a civil partnership or married.

The judgement, given by Lord Kerr, criticised the Government, saying that it had created a "situation of inequality" and then asked "for the indulgence of time".

There has been some move towards rights for cohabitees to off-set the unfairness but yet to be properly legislated by Parliament. Thus redress for such parties would, in theory, be available to them should they be able to enter into a civil partnership with their different sex partner if this was opened up to them.   

The point of the case is that Parliament cannot continue with its “wait and see” policy and must address this discrimination against different sex couples sooner rather than later.

It does, however, continue to highlight the imbalance of the law for different sex couples who do not wish to marry but wish to have financial security in the event of the relationship breaking down.