In June 2018, the Supreme Court handed down a historic decision which may pave the way for heterosexual couples to enter into civil partnerships.
Britain’s highest court ruled that not allowing heterosexual couples to enter into civil partnerships was discriminatory. Although the decision cannot force the government to amend the Civil Partnerships Act (CPA) 2004 to permit heterosexual couples to enter the union, it does make the possibility of legislative reform more likely.
The history of the case
The decision of R (on the application of Steinfeld and another) v Secretary of State for International Development  UKSC 32,  All ER (D) 145 (Jun) involved a heterosexual couple, Rebecca Steinfeld and Charles Keidan, who believe the institution of marriage is patriarchal and sexist[PM1] . They sought a Judicial Review of the government’s apparent refusal to offer an option of civil partnership to heterosexual couples.
Under CPA 2004, only same-sex couples can enter into a civil partnership. In 2013, the government legalised the marriage of same-sex couples with the Marriage (Same Sex Couples) Act 2013 (MSSCA 2013). This meant that same-sex couples had the choice of a civil partnership or marriage, whereas different-sex couples lacked that choice as the CPA 2004 was not extended to them.
The idea of extending civil partnerships to different-sex couples was proposed at the time the MSSCA 2013 was passing through the House of Commons. However, fearful that the passing of MSSCA 2013 would be derailed if another issue was thrown into the mix, the then Prime Minister, David Cameron opposed the idea.
The High Court refused the couples claim for Judicial Review and the Court of Appeal rejected their appeal. The Court of Appeal considered the Secretary of State’s policy on the issue of “wait and evaluate” when it came to deciding on an important matter of social policy, proportionate, and therefore lawful.
The Supreme Court’s decision on civil partnerships
In coming to its decision, the Supreme Court looked at whether not allowing different-sex couples to enter into a civil partnership was compatible with Article 8 of the European Convention on Human Rights (ECHR) when the article was read in conjunction with Article 14 of the same convention.
Article 8 reads:
1. Everyone has the right to respect for his private and family life, his home, and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14 states
The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Salgueiro Da Silva Mouta v Portugal (1999) 31 EHRR 47 held sexual orientation qualified as a ground on which discrimination under article 14 is forbidden. In addition, it had also been accepted that civil partnerships were covered by the rights laid out in article 8.
The Supreme Court rejected the idea that considerable time was needed to evaluate legislative changes. There was clearly discrimination when reading article 8 in conjunction with article 14, and several years had passed since the MSSCA 2013 came into force. The court concluded that this had given the government ample time to consider how it might deal with the matter.
The court went on to consider the four-stage test used to determine whether interference with an ECHR right can be justified by asking itself:
- whether there was a legitimate aim
- whether the actions were rationally connected to the aim
- whether the actions were no more than were necessary to accomplish the aim
- whether the actions struck a fair balance between individual rights and the interests of society as a wholeIt was ruled that tolerating legislation which was clearly discriminatory while it was deciding what to do about the situation was not a legitimate aim. Also, the government was not held to have struck a fair balance between the rights of Miss Steinfeld and Mr Keidan.
What happens now regarding civil partnerships?
Unfortunately, the battle to allow different-sex couples who do not wish to marry to enter into a civil partnership is not over. Although the Supreme Court ruled the CPA 2004 as it stands is discriminatory, only Parliament can change the law. This means that heterosexual couples who do not wish to marry are left with no choice but to cohabitate, a situation which provides almost no legal protection[PM2] .
Rosie Bracher are specialist family law solicitors based in Barnstaple. Please contact our office on 01271 314 904 and arrange to speak to one of our team on any of the points raised in this article.
[PM2]link to https://www.rosiebracher.co.uk/blog/who-gets-the-family-home-when-cohabitees-break-up/