As most people will be aware it is now legally possible for a same sex couple to get married; to enter into a civil partnership; or to convert their previously registered civil partnership into a marriage in the United Kingdom.

In other words same sex couples now have the choice of whether they want to have their relationship legally defined as a marriage or as a civil partnership. Yet this choice is currently not available for opposite sex couples. The only legal regime available to heterosexual couples, at present, is marriage.

Prior to the enactment of the legislation, concerns were raised about the continuing role of civil partnerships after marriage was extended to same sex couples. However a decision was made, after two public consultations and a debate in Parliament, that the Government would wait and see how, with reference to the official statistics, the change would impact on the demand for civil partnerships before deciding what to do about them. Whilst there is express provision for such a review within the legislation, there is no specified period of time dictating when such a review will take place. As such the long term future of civil partnerships in the United Kingdom remains uncertain.

What is a Civil Partnership?

A civil partnership is presently defined in the Civil Partnership Act 2004 as “a relationship between two people of the same sex which is formed when they register as civil partners of each other” and the 2004 Act goes on to state that a couple are not eligible to register their relationship as a civil partnership if they are not the same sex.

It is against this background that a young heterosexual couple in a committed relationship with a young child have raised an action in England seeking judicial review of the legislation. They wish to enter into a civil partnership instead of a marriage on the basis that they object to the “patriarchal baggage” which they consider is still inextricably linked to the institution of marriage.

Whilst Rebecca Steinfeld and Charles Keidan acknowledge that there are no substantial differences between a civil marriage and a civil partnership in terms of the legal rights and responsibilities they afford, and they do not dispute the fact that they could choose to celebrate (or not celebrate) a civil marriage, they wish to enter into a civil partnership as they consider that it would better reflect their values and give due recognition to the equality of their relationship. They argue that the State’s denial of their right to choose how to legally define their relationship on the basis of their sexual orientation, particularly given that that choice exists for same sex couples, is unlawful and is a breach of their fundamental human rights.

A Breach of Human Rights?

It was argued on their behalf that it is unfair that the couple have to wait to have their relationship recognised in the way that they want for an unspecified period of time when same sex couples can have their relationship recognised as they wish now. No doubt there will be many people who sympathise and agree with the couples’ argument and indeed over 72,000 people have signed their petition on calling for the Government to open civil partnership to all. However the question for the court is whether this unfairness constitutes an incompatibility with the couples’ human rights in terms of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In January 2016, High Court Judge Mrs Justice Andrew dismissed their action commenting that she did not think the current legislation represented a breach of the couples’ human rights and to take steps to amend the Civil Partnership Act now, without first ingathering sufficient data to review the impact of the change, would “…be taking a leap in the dark which could turn out to be an extremely extensive mistake”. She goes on to say that “whilst it would obviously have been preferable if the Government had given some indication of timescale, in my judgement its failure to do so does not remove the justification for its failure to take steps to address the situation immediately”.

In November 2016, the couple challenged the High Court Judge’s decision and have received confirmation last week that their appeal has been refused. It remains to be seen whether the couple will take this matter any further but surely the existence of one legal regime for heterosexual sex couples and two for same-sex couples cannot be sustainable long term.

Cohabitation Rights in Scotland

In addition to civil partnerships and marriage, Scotland also legally recognises couples who choose to cohabit with each other regardless of their sexual orientation. Cohabitants can make financial claims against each other within one year of their relationship breaking down if the applicant is able to demonstrate that he/she has suffered an economic disadvantage from the contributions he/she has made in the interests of the other party or any relevant child, and that the other party has derived a corresponding economic advantage from his/her contributions. “Contributions” includes indirect and non-financial (and, in particular, any such contributions made by looking after any relevant child or any house in which they cohabited), and “economic advantage” includes a gain in capital, income, and earning capacity. In considering whether to grant an award in favour of the applicant the Court will have regard to whether (and, if so, to what extent) any such contributions are offset.

There is also the possibility for a claim to be made if a cohabitant dies during cohabitation if the deceased did not have a Will, or a valid Will. In such circumstances the survivor can make a claim on the deceased’s’ Estate within six months of the deceased’s death.

If you would like more information or advice in relation to cohabitation, civil partnerships or marriage, we would be happy to discuss this further with you.