Yesterday the High Court finished its two-day hearing for the judicial review of the availability of civil partnerships to heterosexual couples. The outcome of the proceedings will soon be published but it is worth taking a step back to clarify some potentially confusing technicalities and to examine both sides without the influence of an official decision.
What is happening?
The Civil Partnership Act 2004 allows civil partnerships – distinguishable from marriages, as discussed later on – only for same-sex couples. Charles Keidan and Rebecca Steinfeld, a heterosexual couple, argue that this restriction is incompatible with the European Convention on Human Rights (ECHR) with respect to their rights to private and family life as well as to equal treatment by law regardless of sexual orientation. They are seeking a declaration of incompatibility with the ECHR, in other words a UK court declaring that domestic law is not currently in line with the principles of the ECHR.
What would the immediate effect be?
As per the Human Rights Act 1998 – the incorporation of the ECHR into UK domestic law – a declaration of incompatibility will not actually affect the validity of national legislation, as it would ultimately still be up to Parliament to decide whether or not amendments to UK law are necessary or desirable. The process simply allows scrutiny of the legislative and executive branches. But successful claims do breed significant socio-political pressures.
Why are the parties seeking a civil partnership over marriage in the first place?
In the couple’s own words: “Civil partnerships are a modern social institution conferring almost identical legal rights and responsibilities as marriage, but without its historical baggage, gendered provisions and social expectations.” Failed civil partnerships also require a form of legal dissolution comparable to divorce. But there is a growing belief that marriage carries with it a characteristic weight. It is pertinent to note that same-sex couples have access to either type of union and can convert an existing civil partnership into a marriage if they so wish.
What are the real differences, then?
Some feel that marriage is historically patriarchal – for instance, marriage certificates have space for details of the fathers of the partners but not for their mothers. Grounds for termination also slightly vary (e.g. adultery is not recognised as a valid cause to end a civil partnership) along with slightly different financial rights. For an exhaustive comparison click here.
Why is this issue only coming up now?
This is not the first time the concern has been raised. Other heterosexual couples have expressed frustration toward the prohibition in the past. Cohabitation would not provide them with the legal and financial security they wanted, but they were not thrilled with the idea of marriage and its fixed husband and wife roles. Perhaps the judiciary is now more open to considering the matter in light of today’s increasingly progressive culture.
Hypothetically, if a declaration of incompatibility is made, what are the chances that Parliament would even enact reform to the Civil Partnership Act?
It’s not unlikely. Former examples of amendments to address perceived injustices include: a remedial order in 2001 to change certain sections of the Mental Health Act 1983, ordinary legislation via the Nationality, Immigration and Asylum Act 2002 to amend the Immigration and Asylum Act 1999, and the implementation of a new regime of control orders via the Prevention of Terrorism Act 2005 to repeal the ECHR-incompatible provisions of the Anti-terrorism, Crime and Security Act 2001.
Would there be any negative implications?
There would be inevitable objections from religious and pro-marriage groups. But this is natural as differences of opinion are are part and parcel of change. The Netherlands, for one – where heterosexual couples are entitled to all options – seems to be doing perfectly fine.
If you have any questions about the law around same-sex partnerships or marriage please get in touch. Call us on 020 7100 6100 to discuss any legal problems you have or leave a comment below to let us know what you think.
Isabel is a guest blogger for Grayfords. She obtained her Bachelor of Arts degree in Political Science with a minor in Economics from Barnard College of Columbia University in New York City. She is currently pursuing the Graduate Diploma in Law at The University of Law in London.
