This has recently been a hot topic in family law as two recent events have drawn headlines. As the law stands at the moment, there are different ways of regulating a family partnership depending on the gender of those seeking legal recognition of their relationship. Those that do not wish their relationship to have legal consequences continue to be able to live together without legal interference, which in its self raises some complex legal and human rights issues that will be considered in a later post.
At the moment heterosexual couples can marry, which carries considerable legal consequences should the relationship end, or cohabit which does not. Gay couples have a third choice, they can now marry since the Marriage (Same Sex Couples) Act 2014, but they also retain the option to enter a Civil Partnership as the result of the Civil Partnership Act 2004, and of course they can cohabit in the same way that heterosexual couples can, without legal consequences.
It is often difficult to distinguish between marriage and a civil partnership as in both cases most legal obligations are the same, and civil partnership has often been called marriage in all but name. Originally the introduction of civil partnerships was seen as an alternative to offering marriage to same sex couples, by providing legal and financial protections, and therefore alleviating the worst discrimination that existed prior to its introduction. It avoided the perceived conflict that same sex marriage could have sparked. The Case of Wilkinson v Kitzinger  EWHC2022(Fam) spells out that having a civil partnership was sufficient in the eyes of the law. This case concerned a female couple who had married in Canada (where same sex marriage was legal) and on their return to the UK they sought a declaration that their marriage was recognised in English law. Sir Mark Potter was clear in his judgment that this was not the case. Wilkinson and Kitzinger argued that a civil partnership was a lesser form of relationship and did not afford them the ‘intangibles of marriage’. Fast forward to 2013 and the debate had radically changed with the recognition that same sex couples should be able to marry and of course, this is now the preferred form of formal relationship, outside of cohabitation, for both same sex and heterosexual partnerships. (http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm130205/debtext/130205-0001.htm)
In the light of the Marriage (Same Sex Couples) Act the numbers of Civil Partnerships have now declined to just a few hundred a year since 2014 and in 2015 here have only been 861 is fewer than the numbers of Civil Partnership dissolutions for the same period 1,211. (www.ons.gov.uk/ons/rel/vsob2/civil–partnership–statistics) Since 2014 there have been 15,098 same sex marriages, whilst about half of these were new relationships, the remaining half were conversions from civil partnerships, which became available in December 2014. (www.ons.gov.uk/ons/…/marriages…same–sex–couples…/sty-for-same–sex…)
So things have moved relatively fast in legal terms for same sex couples, but the fact that the civil partnership option is not available to opposite sex couples is increasingly coming to public notice and raising concerns. One argument that was raised at the time of the debates on same sex marriage was that civil partnerships would simply wither on the vine so Parliament did not need to do anything about them, and certainly the decline in numbers suggests that it is not the preferred option for couples, however there are still significant numbers opting for a civil partnership and it is hard to argue against the discriminatory nature of the present law. There are heterosexual couples who would like the legal protections that come with marriage in English law but do not wish to marry with all the historical and patriarchal conations that come with marriage.
Over the last few weeks there have been two significant developments in this area, firstly and interestingly there has actually been the first a heterosexual civil partnership in the UK, on the Isle of Man last week. Adeline Cossen and Kieron Hodgson became civil partners on the 14th of October, commenting that they would marry one day but not yet, for now they wanted to ‘keep things simple’. The Equal Civil Partnership campaign (http://equalcivilpartnerships.org.uk/) were quick to congratulate the couple and comment that this option should be available to all because the present system perpetuates ‘inequality and segregation’.
The second development in this area is the imminent case that Rebecca Steinfeld and Charles Keidan are bringing to the Court of Appeal next month, they are arguing that their human rights are compromised by not having the civil partnership option, they comment that marriage has a ‘problematic history from the point of view of male – female relations’ so for them marriage is not an option and without a civil partnership they are not able to regulate their family life in the same way a gay couple would be able to. This case is about to be heard and the outcome is awaited with bated breath by family lawyers and many couples. As is so often the case in family law, the conclusion to this complex question may yet not lie in the Appeal Court but the decision when it comes will certainly be interesting!
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