There’s been a great deal of misunderstanding and misreporting around Wednesday’s Supreme Court judgment about civil partnerships*.

Civil partnership was introduced by the Civil Partnership Act 2004 and is presently open to same-sex couples only. It was therefore a precursor to same-sex marriage, and carries virtually all the same legal consequences as marriage.

There are therefore two regimes available to same-sex couples – marriage and civil partnership – and one regime available to opposite-sex couples. When same-sex marriage was introduced, the government consulted on what should happen about civil partnerships. Options included abolishing them but letting existing civil partners remain civil partners; abolishing them and forcibly converting all existing civil partnerships into marriages; and opening up civil partnerships to opposite-sex couples. The consultation revealed no consensus about what should happen, so the government left the situation although it appears that when Justine Greening was Minister for Women and Equalities she did draw up proposals for parliament to open up civil partnership to opposite-sex couples. However, this never progressed.

Yesterday’s Supreme Court case was brought by Rebecca Steinfeld and Charles Keidan, an opposite-sex couple who want a civil partnership, not a marriage. They view marriage as incompatible with their values because it has ‘patriarchal baggage’. This includes, for example, the fact that for centuries a married woman could not own her own property and had no right to look after her own children. We can see the remains of this idea that women and their children belonged to their husbands when the bride’s father ‘gives her away’ to her new husband during a wedding ceremony.

Their website says:

“Personally, we wish to form a civil partnership because that captures the essence of our relationship and values. For us, a civil partnership best reflects who we are, how we see our relationship and our role as parents – a partnership of equals. We want a civil partnership to cement our commitment and strengthen the security of our family unit.”

They therefore brought an application for judicial review of the government’s refusal to allow them a civil partnership, arguing that this breached their right to private and family life (Article 8 of the European Convention on Human Rights, which is part of our law by virtue of the Human Rights Act 1998) and was discrimination on the grounds of their sexuality. The government did in fact accept that there was inequality but said it wanted more time to consider what to do.

Yesterday, Steinfeld and Keidan won their case, with the Supreme Court making a declaration that the Civil Partnership Act’s limitation to same-sex couples only was incompatible with the applicants’ human rights. The Supreme Court said that wanting to wait and consider what to do, was not acceptable when the discrimination would last for that period.

A number of media sources referred to this as giving Steinfeld and Keidan a right to a civil partnership.

For example, Sky’s headline was ‘Heterosexual couple win right to civil partnership after Supreme Court ruling’ and their twitter headline was ‘Rebecca Steinfeld and Charles Keidan have won a ruling that means heterosexual couples can have civil partnerships

BBC News’ twitter headline was ‘Rebecca Steinfeld and Charles Keidan win legal bid for right to have civil partnership instead of a marriage’.

Even law firm Stowe Family Law wrote that ‘The supreme court ruling today that civil partnerships should be opened up to opposite-sex’.

In all cases, the articles do a more accurate job than the headlines. You see, the Supreme Court did not say that civil partnerships should be available to straight couples and they certainly did not say that Steinfeld and Keidan have a right to a civil partnership.

A declaration of incompatibility with human rights does not mean that Parliament has to change the law although that is usually the outcome. The obligation, though, is to remove the discrimination that gives same-sex couples a choice of marriage or civil partnership and opposite-sex couples just marriage. The government could decide to  do that by opening civil partnership up to straight couples. However, it could alternatively decide to abolish civil partnerships, because that would also remove the discrimination by treating all couples the same – they would all only be able to get married. This will only be a victory for those who want civil partnerships if the government does the former. If the government instead abolishes civil partnerships then not only will Steinfeld and Keidan not be able to have one, but neither will any same-sex couple. That would be a pyrrhic victory indeed.

POSTSCRIPT – 27 October 2018

Earlier this month the government announced that it would now change the law to extend civil partnerships as an option to partners of the opposite sex. This, it said, “will not only address [the current] imbalance, it will also provide greater security for couples who want to gain legal recognition for their relationship.”

Although the government said it would consult on the detail, there is already a bill in Parliament that would achieve the desired result. Yesterday, the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill,  a private members bill introduced by Tim Loughton MP in July 2017, had its third reading in the House of Commons. It includes a number of other amendments to family law legislation, but if enacted it would have the effect of removing the incompatibility identified by the Supreme Court.

Incidentally, Loughton’s is not the only private members bill in the offing. Baroness Burt of Solihull has introduced a Civil Partnership Act 2004 (Amendment) (Mixed Sex Couples) Bill to achieve this limited result; and, perhaps more controversially, Lord Lexden has introduced a Civil Partnership Act 2004 (Amendment) (Sibling Couples) Bill to extend the 2004 Act to siblings of equal or opposite sex, with a view to enabling them to take advantage of the legal rights (eg to property and inheritance) enjoyed by civil partners. Neither of these bills has made any recent progress in either House, however, so it seems likely that Loughton’s bill, with government support, is the most likely contender.

Paul M

 * Now reported as R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32; [2018] 3 WLR 415;  [2018] WLR (D) 403. 

Image courtesy of SMU Constitutional and Administrative Law Wikipedia Project