By Caragh Deery - Law Student @ St Hilda's College, Oxford
In R (on the application of Steinfeld and Keidan, UKSC 32), the UK Supreme Court declared the provisions of the Civil Partnership Act 2004, which precluded different-sex couples from entering into a Civil Partnership, to be incompatible with Article 14 of the European Convention on Human Rights (ECHR). Article 14 provides protection against discrimination. The litigants, who were ideologically opposed to marriage, argued that it was unfair that, while same-sex couples could either marry or enter into a civil partnership, the same choice was not available to opposite-sex couples. Instead, they could only formalise their relationship through marriage. In 2019, the government sought to remedy this inequality by publishing the Civil Partnership (Opposite Sex Couples) Regulations, with the result that opposite-sex couples are now able to register Civil Partnerships under the law of England and Wales.
The Marriage Foundation welcomed equal Civil Partnerships as an opportunity to ‘provide a
new, formal basis for those who want to make a solid and legally backed commitment’. There
had long been concerns that the law did not provide adequate protection to couples who did not
wish to formalise their relationship through marriage, and these reforms were seen to be the
solution. Devising a legal solution to informal relationships is a complex issue due to the range
of relationships falling under this category. However, it is obvious that no uniform approach will successfully capture all cohabiting relationships and for this reason, it is argued that the perceived advantages of equal Civil Partnerships are overstated, and that the reforms were a missed opportunity.
The discussion dominating the debates which led to the introduction of equal Civil Partnerships
focused on cohabitants who are ideologically opposed to marriage. This homogenisation overlooks the interests of a large majority of cohabitants. Barlow and Smithson’s research (2010)
suggests that only 10% of cohabitants are ideologues. Furthermore, many cohabitants will not
wish to enter Civil Partnerships; in fact, 24% of respondents in a Government Equalities
Research Brief (2019) stated they were not at all interested in legally recognising their
relationship whether through marriage or an alternative. Given that 41% of opposite-sex couples
had dependent children living in the household in 2015, their legal protection is of great
importance. Taken cumulatively, the factors discussed so far paint a striking picture of the failure of ‘opt-in’ approaches such as equal Civil Partnerships to provide a solution for all (deserving) cohabitants. Despite these criticisms, it is acknowledged that it is now too late for the law to take a step backwards by closing Civil Partnerships to new entrants. Instead, it is necessary to devise a solution which enables equal Civil Partnerships to co-exist alongside alternative protections.
The preferable route will be to reject the inaccurate conceptualisation of equal Civil Partnerships
as an effective cohabitation measure and to instead favour opt-out regimes based on pre-
determined eligibility criteria. To this end, the proposals suggested in the Cohabitation Rights
Bill provide an appropriate solution. If adopted, the Bill would apply certain rights and
protections currently received by married couples and civil partners to cohabiting couples who
have either had a child or lived together for a minimum duration between 2-5 years. This
provides a good middle ground; it avoids the risk of providing legal protection to couples who
have only been cohabiting for short periods, whilst providing more extensive protection than
exists under the current law.
The UKSC’s judgment in Steinfeld is available at: https://www.supremecourt.uk/cases/docs/uksc-2017-0060-judgment.pdf
An article from the Guardian discussing the decision: https://www.theguardian.com/lifeandstyle/2018/jun/27/uk-ban-on-heterosexual-civil-partnerships-ruled-discriminatory
A Citizen’s Advice webpage outlining the key legal differences between married couples and cohabitants: https://www.citizensadvice.org.uk/family/living-together-marriage-and-civil-partnership/living-together-and-marriage-legal-differences/
Cohabitants Rights Bill 2020; in particular, look at the section on ‘Opt-out agreements’ in Part 2; available at: https://publications.parliament.uk/pa/bills/lbill/58-01/097/5801097.pdf