A heterosexual couple who wanted to have a civil partnership rather than get married lost their legal challenge in the High Court last week.
In 2014 a Local Authority told Londoners Rebecca Steinfeld and Charles Keidan that they could not have a civil partnership because they did not meet the legal requirement of being of the same sex. After being refused permission to enter in a civil partnership, the couple then took their case to the High Court for judicial review, claiming they faced discrimination under Human Rights legislation as the ruling breached their right to a family life.
Ms Steinfeld and Mr Keidan argued that they wanted to commit to each other in a civil partnership as it ‘focused on equality’ and did not carry the patriarchal history and associations of marriage. However, the Civil Partnership Act 2004 – which applies throughout the UK – requires that partners be “two people of the same sex”. It grants gay couples legal rights similar to those given to married couples. The introduction of same-sex marriage – which became legal in England, Wales and Scotland in 2014 – has since given gay couples a choice between that and civil partnership.
Ms Steinfeld and Mr Keidan argued that, as a heterosexual couple, they did not have the same choice as gay couples and were therefore discriminated against. They further argued that the current legislation was “incompatible” with their right to a private and family life. The government argued that civil marriage was an institution that protected the core values of family life and was entirely egalitarian, and that where the objection was ideological there was no infringement of rights.
However, Mrs Justice Andrews dismissed their claim for judicial review, ruling that the different treatment of gay and opposite-sex couples didn’t infringe the right to a private and family life enshrined in Article 8 of the European Convention of Human Rights. Moreover, even if it had, maintaining the different treatment was justified; essentially because opposite-sex couples can enter civil marriages, which are egalitarian and encompass the core principles of family life:
“Opposite-sex couples are not disadvantaged by the hiatus, because they can achieve exactly the same recognition of their relationship and the same rights, benefits and protections by getting married, as they always could,” she stated.
A government spokesperson welcomed the ruling, saying the “current regime of marriage and civil partnership does not disadvantage opposite sex couples”. The couple have said they intend to appeal.
The ruling, however, has been greeted with surprise and some dismay. An important part of the foundation of modern human rights and equality law is the protection against discrimination on grounds including sexual orientation. Unfortunately, the Civil Partnership Act 2004 appears to fly directly in the face of that, in that it requires civil partners to be “two people of the same sex.” Gay couples can now choose marriage or a civil partnership; whilst heterosexual couples, unfortunately, can only choose to marry.
Ava Lee, campaign manager of the Equal Civil Partnership campaign, said it was time the government reconsidered its position on civil partnerships. Former children’s minister, Tim Loughton, also expressed disappointment at the decision. He had previously put down a 10 minute rule bill in support of the campaign. It received cross-party backing from other MPs including Caroline Lucas, Andy Slaughter and Stephen Twigg. Commenting on the current legal situation, Mr
Loughton said:
“Opposite-sex couples who do not want to go down the formal marriage route are completely unrecognised in the eyes of the state. With 3 million cohabiting opposite-sex couples in the UK, and 40 per cent of them having children, this is a large body of people and they have few protections if things go wrong, let alone tax advantages rightly now available to same-sex couples who can choose between marriage and civil partnership.”
“Many cohabiting couples are living under the complete misconception that they are protected by common law marriage, which does not formally exist. At a time when we want to do everything to encourage family stability, particularly to help foster strong childhoods, it is absurd that the state has no way of recognising and celebrating these relationships. It is high time we recognised equal civil partnerships to give greater security to millions of our citizens.”
