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This week, the High Court refused permission to an opposite-sex couple to enter a civil partnership. Charles Keidan and Rebecca Steinfeld had brought the case against the government on the basis that it breaches equalities legislation. This is because the only form of legally-recognised partnership in our country for opposite-sex couples is marriage, whereas gay and lesbian couples can choose whether they wish to marry or to form a civil partnership.

This couple both feel that marriage is a patriarchal institution and want no part of it. However they do wish to have recognition and regulation of their relationship. They feel that a civil partnership would be a better fit for them as a family.

Some background: the Civil Partnership Act 2004 was introduced to give same-sex couples the right to have their relationships recognised formally in law. The concept of civil partnership was arguably invented so that the government could ‘preserve the sanctity of marriage’ and was perceived as falling short of marriage, while still creating legal rights and a legal framework for gay and lesbian relationships. The rights it created were akin to those granted in marriage.

Following further pressure, and perhaps changes in the prevailing social mood and public attitudes, the government introduced same-sex marriage in 2013. However, it did not introduce opposite-sex civil partnerships, and has no plans to do so.

The legal differences between marriage and civil partnerships in legal terms are only really two. First, terminology: couples who have entered into a civil partnership together cannot call themselves ‘married’; they don’t get divorced either, as the civil partnership is dissolved instead. Secondly, adultery cannot be used as to found the basis of a civil partnership dissolution as it can a divorce, because of a legal technicality. That said, just as there are those who feel passionately that it is right that gay and lesbian people should be able to be married, there are those who feel passionately that opposite-sex couples should be able to access civil partnerships as an evolved and equal basis for a family that does not have the traditional religious connotations and social expectations of marriage. It isn’t all about the law.

Mr Keidan and Ms Steinfeld were refused permission to enter a civil partnership rather than a marriage in 2014. They have since had a child together. In this court case they were seeking a review of the law on the basis that the failure to allow opposite-sex couples to form civil partnerships breaches Article 8 and Article 14 of the European Convention on Human Rights. These provisions, incorporated into the law in this country by the Human Rights Act 1998, state that everyone should be treated equally under the law without discrimination, and everyone has the right to a family life.

They are not the only ones to feel so strongly: they were backed in their fight by another couple requesting the same law change, and by a petition signed by over 30,000 people. It is obvious that there are plenty of people who feel marriage is not for them, yet still want access to a legal structure that protects them in the same way as marriage, as civil partnerships do. A civil partnership makes the partners each other’s next of kin and gives them financial protection in the event of the end of the relationship by dissolution or death. Without that, if these people are shunning marriage, they are generally leaving themselves as cohabitants without any legal protection if the relationship breaks down.

Still, the High Court turned down Ms Steinfeld and Mr Keidan’s request, saying that the different treatment of lesbian/gay and opposite sex couples did not infringe upon their right to a private and family life recognised in Article 8 of the European Convention of Human Rights. In terms of breach of Article 14’s non-discrimination principle, the court said that that the difference in treatment of opposite-sex couples could be justified by wider policy concerns.

Even if it did breach the convention, Mrs Justice Andrews said, the different treatment of opposite and same-sex couples regarding legal relationship structures could be justified. Opposite sex couples can enter civil (as opposed to religious) marriages, which are egalitarian and encompass the important principles of family life. ‘Opposite couples …can achieve exactly the same recognition of their relationship and the same rights and benefits and protections by getting married’. The state, she said, had fulfilled its obligations under the European Convention to the couple by having made a means of formal recognition of their relationship available.

The couple are considering whether they intend to appeal. The government has declined to say whether they will be continuing civil partnerships now gay and lesbian people are able to marry, and are apparently waiting to collect evidence of the popularity of marriage to same-sex couples before making a decision. We sympathise with this couple: marriage is not for everyone, and we believe that all legal structures should operate equally for all people regardless of their sexual orientation or gender identification. We wait with interest to see what happens next.

If there is a family law matter you would like to discuss, please call 01223 443333 to make an appointment with Tricia, Adam, Simon, Sue or Gail.


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