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  • Writer's pictureDurham Pro Bono Blog

Equal Civil Partnerships - Are they necessary?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Natasha Sieradzki

Section Editor for Family Law


Civil partnerships were introduced under the Civil Partnership Act and defined as ‘a relationship between two people of the same sex’[1], allowing them formalised status. Further progress was made with the Marriage (Same Sex Couples) Act 2013 which allows same-sex couples to marry in civil and religious ceremonies, making England and Wales one of two jurisdictions to grant more opportunities for the formalisation of relationships to same-sex couples than heterosexual couples. This changed following the Government response to the declaration of incompatibility in Steinfeld[2] as parliament became statutorily obliged to extend civil partnerships to heterosexual couples by virtue of section 2 of the Civil Partnerships, Marriages and Deaths (Registrations Etc.) Act 2019. There has since been debate as to whether this change is necessary with some believing civil partnerships should have been abolished after same-sex marriage was introduced. This essay will seek to argue for the expansion of civil partnerships to opposite-sex couples by exploring the approaches taken in other countries and applying them to England and Wales to determine which would be most effective. The extent of this effectiveness will then be examined by looking towards areas of reform.



The ‘Dutch’ and ‘Nordic’ Model

There are two broad trends in government responses to the introduction of same-sex marriage; described as the ‘Dutch’ and ‘Nordic’ model. The ‘Dutch’ model is operational within jurisdictions which introduced partnerships for both opposite and same-sex couples before introducing same-sex marriage and maintaining the partnership option, premised on the idea that partnerships are an alternative to marriage and that such purpose remains once the marriage is accessible to all[3]. In contrast, the ‘Nordic’ model operates in jurisdictions which introduced partnership programmes exclusively for same-sex couples before allowing them access to marriage and phasing out partnerships, grounded in the idea that civil partnerships a precursor to same-sex marriage and that they are now ‘redundant’[4]. Consequently, it may have seemed like England and Wales would follow the ‘Nordic’ model as civil partnerships were introduced for same-sex couples only, suggesting they were viewed as a precursor to marriage equality. Nevertheless, the government opened up civil partnerships to opposite and same-sex couples under the justification that this provides an alternative to marriage, a decision following the fundamental principles of the ‘Dutch’ model. In order to determine the appropriateness of this decision the implications of both models must be applied to our own jurisdiction.


Application to England and Wales

Following Steinfeld, the ‘Nordic’ model was considered an option because the court’s judgment merely meant the discrimination stemming from unequal access should be altered. Although the government did not adopt this model, there are those who believe that civil partnerships should be abolished to uphold the importance of marriage as an institution. This argument, however, is considered disadvantageous to those who do not wish to get married, commonly due to ideological beliefs, and would prefer a civil partnership[5].


There is research that suggests 20% of heterosexual cohabitants would rather get a Civil Partnership than marry[6] and so it is possible to argue that extending civil partnerships is the appropriate course of action as it provides couples the formal recognition they desire. Although others would contend that we should encourage such couples to marry to change negative connotations, the demand for civil partnerships in England and Wales is unlikely to exceed demand in the Netherlands and so will not threaten marriage as the prime institution[7]. Furthermore, a key argument against adopting this model is that it would be a ‘cruel irony’[8] and ‘highly controversial interference with [civil partners’] family life’[9] to simply abolish civil partnerships. This is because, for same-sex couples, civil partnerships have great meaning and we cannot simply disregard their value by denying access to them[10]. This symbolisation remains despite equal access to marriage as illustrated by the large number of same-sex couples who continue to register for civil partnerships and the small number of those in civil partnerships who have chosen to convert to marriage[11]. This, therefore, suggests that it would have been an unjustifiable decision were the government to have adopted this model.


Some believe that the ‘Dutch’ model should have also been rejected by the government, maintaining same-sex only access to civil partnerships. One key argument against civil partnership expansion stems from calls for it only appearing once equal access to marriage was granted. This has caused members of the LGBTQ+ community to speak about their dissatisfaction towards the government’s decision stating that ‘It has taken mixed-sex couples only four [years] to achieve the equality we craved, fought for and eventually won’[12]. Although this is a position with which we can sympathise, it would be ‘unjustifiable and unsustainable’[13] to continue with the current system of asymmetrical access and this should be addressed on human rights grounds[14]. Many of those desiring opposite-sex civil partnerships do so because they reject the patriarchal connotations of marriage[15] and want legal protections for their relationship. Although such couples may undergo a civil marriage ceremony to access this, it is evident that, on a human rights basis, we must allow them access to civil partnerships if those of the same sex also have this option. It is unclear how popular civil partnerships will be amongst heterosexual couples in England and Wales but this should not determine whether expansion occurs as ‘equality of treatment should be an overriding objective in a democracy based on respect for fundamental rights’[16], such as our own. It is, however, this argument that causes us to question whether it provides protections to enough cohabiting couples.


Further Reforms

Laws regarding cohabitation are ‘complex, confusing and often illogical’[17] meaning many couples are unaware of the legal position cohabitation places them in. Surveys of more than 1,000 cohabiting couples show that more than one third were unaware of their rights[18] so will not see the benefits in marriage or civil partnerships. As a result, the benefits of this fundamental legal development to expand access to civil partnerships may not be as far-reaching as desired as those who wish to remain mere cohabitants are left at risk. Although this is not the fundamental principle behind this debate remains an important issue that needs to be addressed by the government to fully protect those choosing to remain in a cohabiting couple.


On the basis of these arguments, the government was right to respond to the declaration in the way that it did as we live within a jurisdiction that prides itself upon equal access and correcting this by abolishing a meaningful and valued institution of relationship formalisation would show ignorance to the hardships faced by those who fought for its creation. The effects of this expansion, however, are unlikely to have a positive effect upon all those to which it seeks to protect and so further considerations must be made to expand the protections available to cohabiting couples.


 

[1] Civil Partnership Act 2004, s 1(1) [2] R (on the application of Steinfeld and Keidan) v Secretary of State for the International Development [2018] UKSC 32 [3] A. Hayward, ‘Equal Civil Partnerships, Discrimination and the Indulgence of Time: R (on the application of Steinfeld and Keidan) v Secretary of State for International Development’ (2019) 82(5) MLR 922, 932 [4] Ibid, 932 [5] R. Gaffney-Rhys, ‘Same-sex marriage but not mixed-sex partnerships: should the Civil Partnership Act 2004 be extended to opposite-sex couples’ (2014) CFLQ 173, 175 [6] J.M. Scherpe, ‘Quo Vadis, Civil Partnership?’ (2015) 46(3) Victoria University of Wellington Law Review 755, 766 [7] R. Wintemute, ‘Civil partnership and discrimination in R (Steinfeld) v Secretary of State for Education: should the Civil Partnership Act 2004 be extended to different-sex couples or repealed?’ [2016] CFLQ 365, 380 [8] A. Hayward, ‘Justifiable Discrimination: The Case of Opposite-Sex Civil Partnerships’ (2017) 76 Cambridge Law Journal 243, 246 [9] C. Draghici, ‘Equal Marriage, Unequal Civil Partnership: A Bizarre Case of Discrimination in Europe’ (2017) 29(4) CFLQ 313, 325 [10] H. Fenwick and A. Hayward, ‘From same-sex marriage to equal civil partnerships: on a path towards 'perfecting' equality?’ (2018) 30(2) CFLQ 97, 120 [11] A. Hayward (n 3) 933 [12] S. Silas, ‘Why I won’t be raising a glass to mixed-sex civil partnerships’ The Guardian (London, 3 October 2018) <https://www.theguardian.com/commentisfree/2018/oct/03/mixed-sex-civil-partnerships-gay-community-marriage-equality> accessed 3 December 2019 [13] H. Fenwick and A. Hayward, ‘Equal Civil Partnerships: Implications of Strasbourg’s latest ruling for Steinfeld and Keidan’ (UK Human Rights Blog, 21 November 2017) <https://ukhumanrightsblog.com/2017/11/21/equal-civil-partnerships-implications-of-strasbourgs-latest-ruling-for-steinfeld-and-keidan-helen-fenwick-andy-hayward/> accessed 3 December 2019 [14] H. Fenwick and A. Hayward, ‘Rejecting asymmetry of access to formal relationship statuses for same and different-sex couples at Strasbourg and domestically’ (2017) 6 European Human Rights Law Review 544 [15] H. Yusuf, ‘Civil partnerships: Couples tell us why they want one’ BBC News (London, 2 February 2018) <https://www.bbc.co.uk/news/uk-42887173> accessed 3 December 2019 [16] C. Draghici (n 9) 325 [17] A. Barlow, ‘Regulation of Cohabitation, Changing Family Policies and Social Attitudes: A Discussion of Britain within Europe’ (2004) 26(1) Law & Policy 57, 60 [18] S. Brookes and A. Pearse, ‘New Year, new civil partnerships: the first heterosexual civil partnerships will be registered on 31 December 2019’ (Mills & Reeve) <https://www.cohabitation-law.co.uk/insights/2019/11/18/new-year-new-civil-partnerships-the-first-heterosexual-civil-partnerships-will-be-registered-on-31-december-2019> accessed 3 December 2019

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