Civil Partnerships: Does the current law discriminate against heterosexual couples?

Civil partnerships were introduced by the Civil Partnership Act 2004 to enable same-sex couples to have their relationships legally recognised. The idea was to enable gay couples to register their partnerships, just as heterosexual couples can by getting married.  Even though civil partnerships have the same legal status as marriage and parties to a civil partnership have the same rights and claims as married couples, some felt that this change in the law did not go far enough. It was argued that the law was discriminatory and that gay people should be allowed marry (not just enter into civil partnerships).  This prompted a change in the law in 2014, when the Marriage (Same Sex Couples) Act 2013 came into force.

This means that now, if a gay couple want their relationship to be legally recognised, they have a choice: they can either enter into a civil partnership or get married.  This is not a choice available to straight couples – the only option open to them is to get married.  This has given rise to an argument that the current law discriminates against heterosexual couples.

Last week, a London-based couple, Rebecca Steinfeld and Charles Keidan, lost their appeal to enter into a civil partnership. Their application was based on a desire to enter into a legally recognised partnership that gives rise to rights and responsibilities, without having to enter into what they described as the “sexist and patriarchal” institution of marriage.

Some people see this as a fuss about nothing.  If a straight couple don’t want to get married, can’t they just live together? The counter argument to this is that at the moment, cohabiting couples have very few legal rights. Contrary to popular belief, there is no such thing as a “common law marriage”.  This means that cohabitees have no automatic claim against the property or assets of their partner in the event of death or separation.  Arguably, straight couples who do not believe in the institution of marriage should still have the right to sign up to the rights and responsibilities it affords, just as a gay couple can by entering into a civil partnership.

All three Court of Appeal judges agreed that the current law violates the rights of heterosexual couples under Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights. Notwithstanding this, only one of the judges said that the government needs to change the law immediately. The other two said that for the court to interfere at this stage would be to “micro-manage” government thinking, but that ministers should nonetheless take steps to review the current law.

If nothing else, Keidan and Steinfeld’s legal battle has generated publicity for their cause. Since they first appeared in court, more than 72,000 people have signed a petition calling for civil partnerships to be open to all. The couple have made it clear that they are not ready to give up: they have confirmed that they will appeal to the Supreme Court if Parliament does not act, so watch this space!

How can we help?

If you are in a cohabiting couple and you do not wish to get married (or enter into a civil partnership if you are in a same-sex couple) you can still take steps to define your respective rights and responsibilities by entering into a legally binding Cohabitation Agreement. Please get in touch with us if this is something you would like to discuss.

If you have any queries about this article please contact jonesnickolds on 0203 405 2300 or