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The Civil Partnership Act is Discriminatory and Something Must be Done! The Supreme Court Decision.

Zoe Rose

Following on from Family Law Solicitor, Zoe Rose's blog last month Family Law professionals up and down the country have been waiting with bated breath for the 2 seminal decisions of the Supreme Court in Owens v Owens and Steinfeld and Keidan v The Secretary of State for Education.

Whilst the Owen’s decision on divorce is still awaited, we now have a very clear decision from the Supreme Court in Steinfield that, as it currently stands, the Civil Partnership Act is incompatible with the European Convention on Human Rights and therefore, discriminatory.

During the course of the hearing the Government accepted that the current legislation leads to the unequal treatment of heterosexual couples. The Government sought to argue, however, that this position was justifiable for a period during which time they could investigate how best to rectify the position. They wanted to “wait and see” the results of statistical analysis being put together on the popularity of Civil Partnerships following the introduction of same-sex marriage. The ultimate decision for the Supreme Court was, therefore, whether the current inequitable position was justifiable on the basis that the Government recognised its existence and was taking steps to rectify the position. 

Giving the lead judgement Lord Kerr noted that the Government’s argument that it had a measure of discretion to enact legislative change was wrong. The Court noted that whilst Parliament should be provided time to put any new legislation through the proper parliamentary processes. It was not appropriate for additional time to be afforded to “observe evolving social attitudes”. Lord Kerr continued that it is not a legitimate position to allow tolerance of discrimination whilst options are considered, particularly when several years have already passed since same-sex marriage was introduced.

Whilst the decision of the Supreme Court is clear – the current legislation is discriminatory and something must be done – it is important to note that this declaration does not oblige the Government or Parliament to do anything. That being said, the political pressure following this decision is likely to mean this is something that cannot be ignored. In reality the Government must act quickly and has 3 options:

1. Stop any new Civil Partnerships being created.

Arguably this would be a sticking plaster, as this will still result in a period of discrimination. Thus, even if this is the decision taken in the short term it is unlikely to be the eventual decision.

2. Abolish Civil Partnerships altogether.

This would remove the inequality between couples based on their sexuality, as regardless of sexual orientation couples will either have the choice to marry or to live in an enduring, cohabiting relationship. This does not, however, resolve the long running issues discussed in my previous blog for those couples who object to the institution of marriage and are, therefore, left with no option to formalise their relationship status and obtain the legal protection this affords. Consequently, this option does not deal with the related issues which are just as damaging, leaving financially weaker partners unprotected and vulnerable in the event of a relationship breakdown.

3. Extend Civil Partnerships to all

This may well be the best option as it allows all couples options when it comes to formalising their relationships. That being said, this is not a perfect solution either as for those couples still labouring under the misapprehension that by living together with someone for a significant period of time you acquire rights and protections as a “common law spouse”, this change to the legislation will not assist.It is hoped that this enduring problem will again be bought to the forefront by the political debate that will follow the Supreme Court’s ruling but this is a much wider issue that needs to be grappled with.

Time will tell which approach is taken to resolve the current discriminatory legislation so that it is fit for the modern age, so watch this space. 

For further information or legal advice, please contact Zoe Rose or a member of our team.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.