Fixing the civil partnership anomaly is only the first step in a bigger cohabitation reform project, writes Jean-Yves Gilg
24 February 2017
The law on civil partnership was passed in the twilight years of Tony Blair’s second New Labour government. Things had got better in some respects and Britain had become a more inclusive society. Around Europe, more and more countries were introducing similar laws allowing gay couples to formalise their relationships. Five years earlier, on the other side of the channel, France had enacted its ‘civil solidarity pact’ law, which allowed all couples – gay or straight – to get hitched. By contrast, Britain’s civil partnership has only ever been available to same-sex couples.
More than 20 years on, this inexplicable anomaly is still unresolved, and Britain remains the only European country where civil union is not open to opposite-sex couples. The case brought by cohabitees Rebecca Steinfeld and Charles Keidan, however, is the nudge the government needs to finally make a simple change to the law.
In 2014, the couple gave notice to their local registry office that they wanted to enter into a civil partnership. The office declined, drawing their attention to the gender requirements. They responded by applying for judicial review of the government’s failure to consider the possibility of amendments to the Civil Partnership Act, contrary to section 15 of the Marriage (Same-Sex Couples) Act 2013. A consultation took place later that year, and various agencies have, separately, collected data, but no further steps have been taken since. The government’s approach, they argued, amounted to discrimination under article 14 of the European Convention on Human Rights and breached their right to family life under article 8.
Last week the Court of Appeal found that the case fell within the ambit of article 8 but that it was legitimate for the government to undertake additional research into the popularity or otherwise of civil partnerships following the introduction of same-sex marriage in 2013, before deciding whether to extend it or abolish it altogether.
Steinfeld and Keidan may have lost their case but the appeal judges have also sent the government clear instructions that it cannot forever postpone a decision and need to act ‘within a reasonable timescale’. ‘As time passes,’ Lord Justice Beatson added, ‘it will become increasingly difficult to persuade the court that there is still a need to “wait and see” or that an approach to civil partnership primarily based on the demand for that status by same-sex couples alone is justifiable.’
There were over three million opposite-sex cohabiting couples in the UK last year. They are the fastest growing household type. Each have their own reasons why they do not wish to get married. In France, about 95 per cent of couples entering into a pacte civil de solidarité are opposite sex. These are couples who have considered their options and settled on civil union rather than marriage. All that’s needed for English law to come into line with modern family trends is a small amendment to the Civil Partnership Act, as proposed in Tim Loughton MP’s private member’s bill. The bill, due to receive its second reading on 24 March, has cross-party support and the government should simply give it its backing. There is no need to expand further resources into additional research.
The government should then pluck up the courage to tackle once and for all the question of long-term cohabitees. Even if civil partnership is extended, some couples will continue to live together outside any formal framework. They are the most at risk if one of them dies or leaves, and so are any children they may have together.
At present, the only protection available by law is a dependency claim. This is simply not adequate. Some will argue that these couples have had the option to marry and should simply live with the consequences of their choice. But, sometimes, life takes over, and sorting out the bigger issues ends up being forever postponed. People shouldn’t be unfairly criticised or penalised for this. If there is one area of family law the government ought to spend a bit of time on, this is the one. The Law Commission’s 2007 proposal on the subject has done most of the groundwork; all the government needs to do now is show commitment.
This blog was first published on Solicitors Journal on 24 February 2017 and is reproduced by kind permission