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An unequal partnership?

by Neil Graham - Partner

On 21 February, Rebecca Steinfeld, a visiting research fellow at Goldsmiths, and Charles Keidan, editor of Alliance Magazine, asked the Court of Appeal to overturn an earlier High Court judgment refusing them judicial review of the decision of the Secretary of State for Education not to extend civil partnerships to opposite-sex couples.

It is worth taking a moment to put their appeal into historical context by considering the statutory landscape of the last thirteen years.

The Civil Partnership Act 2004 came into effect on 5 December 2005. The fundamental purpose of the act was to create the civil partnership, namely a civil union by which same sex partners could obtain formal legal recognition of their relationship.

The Marriage (Same Sex Couples) Act 2013 came into effect on 10 December 2014 extending civil marriage to same sex couples.

Since then same sex couples have had the option to choose whether they wish to marry their partner or to become civilly partnered to them, whereas opposite-sex couples have continued only to enjoy the option of marriage.

Steinfeld and Keidan originally gave notice to the Chelsea Register Office on 1 October 2014 that they wished to enter into a civil partnership. The Register Office responded by informing them that they were prevented from entering into a civil partnership as they did not fulfil the requirements of the Civil Partnership Act 2004.

As a result, Steinfeld and Keidan sought a judicial review of the Secretary of State’s decision not to extend civil partnership to opposite-sex couples. They maintained that the Secretary of State’s position was incompatible with the European Convention of Human Rights and that the bar on extending civil partnerships to opposite-sex couples violated their rights arising under articles 8 and 14 accordingly.

The Court held, at the first instance, that their relationship was capable of formal state recognition in the form of marriage, affording them all the rights, benefits and protections that flow from such recognition.  Furthermore, the Court held, at the first instance, that there was no indication from the case law generated by the European Court of Human Rights that there was interference with their fundamental right to a family life.  Furthermore, the Court also noted, at the first instance, that the Secretary of State was entitled to “wait and see” pending sufficient statistical data being available to evaluate the impact of the Marriage (Same Sex Couples) Act 2013 upon the Civil Partnership Act 2004.

Steinfeld and Keidan appealed that decision.

The Court of Appeal had to consider, specifically, whether failing to extend civil partnerships to opposite sex couples violated their rights and, if so, whether the Secretary of State’s policy of “wait and see” could be justified pending the availability of the statistical data evidencing the impact of same sex marriage upon civil partnerships.

The Court of Appeal upheld the original High Court judgment and considered it appropriate that Steinfeld and Keidan should be denied the opportunity of reviewing judicially the Secretary of State’s decision.

However, in doing so, the Court of Appeal did take the view that failing to extend civil partnerships to opposite sex couples was a violation of Steinfeld’s and Keidan’s rights under articles 8 and 14 of the European Convention of Human Rights. Two of their Lordships took the view that this was justifiable whilst the Secretary of State waited to evaluate the impact of same sex marriage upon civil partnerships whilst Lady Justice Arden, in a minority, took the view that the violation of their rights was not justified.

It is unclear whether Steinfeld and Keidan will appeal against the Court of Appeal’s judgment to the Supreme Court.

What is clear, however, is that a failure to extend civil partnerships to opposite-sex couples amounts to a violation of human rights under the European Convention of Human Rights which may only be justifiable until such time as the Secretary of State has been able to evaluate properly the impact of same sex marriage upon civil partnerships.

A private member’s bill is currently being brought by Tim Loughton MP which will shortly have its second reading in the House of Commons, although support for the bill may not be sufficiently forthcoming.

However, all is not lost for opposite-sex couples wishing to enter into civil partnerships whilst the Secretary of State waits to evaluate the impact referred to above.

The reason for this is that the Civil Partnership Act 2004 not only creates the civil partnership but it also provides for recognition under English law of 62 types of civil partnerships entered into abroad.  These include civil partnerships entered into on the Isle of Man which, since 2016, have been extended to opposite-sex couples on the island.

Any opposite-sex couples, therefore, wishing to enter into a civil partnership without having to wait either for the Secretary of State to complete her evaluation process or for the Supreme Court to consider the issue can simply hot foot it to Douglas to enter into a civil partnership which will automatically be recognised under English law.

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