A change to our current system is forthcoming, with Theresa May’s statement that heterosexual couples will soon be able to enter into civil partnerships.
This is an issue that has been debated for many years now. It came to a head earlier this year, when Rebecca Steinfeld and Charles Keidan won their Supreme Court case. The Court ruled that ‘sections 1 and 3 of Civil Partnership Act (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of the European Convention on Human Rights taken in conjunction with article 8 of the Convention’.
The Legislation in Question
‘CPA Section 1 – Civil partnership
(1) A civil partnership is a relationship between two people of the same sex (“civil partners”)—
(a) which is formed when they register as civil partners of each other.’
‘CPA Section 3 – Eligibility
(1) Two people are not eligible to register as civil partners of each other if—
(a) they are not of the same sex.’
‘ECHR Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
‘ECHR Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
The Differences between Civil Partnerships and Marriage
• Parties entering into a civil partnership do not make vows.
• Those entering into a civil partnership sign a register to contract into the marriage; there is no religious ceremony.
• Adultery cannot be used as a ground for the dissolution of a civil partnership.
• Failure to consummate cannot be used as a ground to nullify a civil partnership.
The legal consequences of each institution are exactly the same. So, why has there been such debate on the issue? Some felt that, as heterosexual couples were already able to marry (which many same-sex couples campaigned for, prior to the introduction of civil partnerships and same-sex marriage), there was no need to allow heterosexual couples to enter civil partnerships.
Robert Wintemute, a professor of human rights law at King’s College London, provided a counter argument by stating: ‘some people think marriage is historically tainted by patriarchy […] and they just don’t want to be involved in it […] Some prefer marriage, some […] will stay in the cohabiting situation if they do not have this option. It’s a matter of taste.’
One popular opinion is that this supporting this ‘matter of taste’ by the legal framework, thus addressing the existing legal asymmetry. This asymmetry being that same-sex couples could choose between civil partnership and marriage whilst heterosexual couples could not.
Tackling the Asymmetry between the Two Options
There have, however, been several suggestions about how to deal with this asymmetry. Nicola Barker, on the basis that it would allow heterosexual couples the “alternative” they seek, suggests the abolition of marriage. In addition, it would mean that same-sex couples no longer felt civil partnership was an inferior institution to marriage (as same-sex couples were denied the right to marry, but could enter a civil partnership, for some years).
Helen Fenwick and Andy Hayward have said that ‘if a state has introduced registered partnerships it should open them to both different and same-sex couples’; an opinion which the government seems to have adopted. With today’s announcement from Theresa May, this debate may finally have come to a conclusion.