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  • Writer's pictureDurham Pro Bono Blog

In the Name of Inclusivity

Updated: Jul 7, 2022

By Samya Amir
Mixed-Sex civil partnerships serve no purpose. Rather than allowing mixed-sex couples access to civil partnerships, the entire regime should have been phased out?”

Image source: https://images.app.goo.gl/Z6NTaXoAmEtK5SmL7

This article seeks to explore the birth of civil partnerships, the protection it provides to same-sex couples, the law before the same-sex marriage act, and its impact. It considers the extent to which the introduction of civil partnerships, and then same-sex marriage in England and Wales created a level of equality to formal relationship titles. It further considers whether civil partnerships should be extended to mixed-sex couples or should the regime entirely be phased out. Lastly, it discusses the reasoning and possible consequences of doing the same and if phasing it out would go against the principle of ‘[e]quality being at the heart of the democratic process?’[1]


The law of registered civil partnership[2] for same-sex couples was introduced when marriage was not a provision for them. As a result, the institution of the registered partnership was created to counteract discrimination against same-sex couples for them to have a legal formal status.

The introduction of the Same-Sex Marriage Act 2013 [3] changed the dynamics of the situation. This is because the latest legislation left same-sex couples with marriages as well as civil partnerships, whereas mixed-sex couples were only left with one option, which was marriage.


This leaves us questioning the existence of CPA (Civil Partnership Act) even after marriage as an institution was extended to same-sex couples under the Marriage (Same Sex Couples) Act 2013?

It seems amusing since civil partnership was birthed to fight discrimination against same-sex couples but has ended up being discriminatory towards mixed-sex couples.


The same claim was reasserted in Steinfeld[4] when the Supreme Court held that not extending civil partnerships to mixed-sex couples went against their Article 8 and Article 14 rights of the ECHR (European Convention of Human Rights).


Despite being a lengthy statute, the Civil Partnership Act gives very little guidance on the inherent nature of the relationship. This stands in contrast to religious and civil marriages where some of the content and expectations imposed on the parties can be identified from the vows and ceremony itself. Furthermore, it is the act of registration that is central to civil partnerships. This means, that unlike civil marriages in their insistence on declaratory and contracting words, civil partnerships can theoretically be entered into in complete silence.

This fact is perhaps indicative of the desire by those that drafted the Act to ensure that civil partnership was viewed as completely distinct from marriage.


Moreover, divorce in the case of marriage whether speaking of same-sex couples or mixed-sex couples is an overly complex process. Divorce was, historically, only made available to a spouse that was the victim of the other spouse’s matrimonial offence. This might further induce people to take recourse to civil partnerships where the process of separation in the form of dissolution is easier.


This helps us infer that civil partnerships and civil marriages are not the same. Therefore, to say that civil partnerships should not be extended to mixed-sex couples because of the provision of civil marriages is a logically flawed argument, since the rights guaranteed under both relationships are different too. This brings me to the essence of the article that civil partnerships should not be done away with because there is no alternative to it which gives one much of a freedom of choice.


H. Fenwick and A. Hayward [5] argue that states should not maintain an asymmetry of access to formal relationship statuses based on sexual orientation: if a state has introduced registered (civil) partnerships it should open them to both different and same-sex couples, an argument that also applies to marriage. They use the term ‘asymmetry of access,’ offering access to either of two formalised relationship statuses to one group of couples, based on gender and sexual orientation and access to only one such form to the other group.


Civil partnership being extended to only same-sex couples has undoubtedly been considered discriminatory. To add to this, Tim Loughton, a Member of Parliament introduced a Bill in the House of Commons.[6] In an earlier version of the Bill, he spoke about unintended but ‘glaring inequality’ produced by failing to open civil partnerships to opposite-sex couples when same-sex marriage was introduced. [7]

Furthermore, he believed that the ability for opposite-sex couples to register civil partnerships would assist cohabitants through providing greater stability to them and their children alongside offering important legal protections following relationship breakdown.


A different school of thought to notice is that the government in the United Kingdom could extend the coverage of civil partnerships to opposite-sex[8] couples, the government may also choose to remove the discrimination by phasing out civil partnerships altogether.


The latter approach would mean that marriage would be the only option for both opposite-sex and same-sex couples. This approach certainly offers simplicity, but it also underloads the value that many same-sex couples attach to civil partnerships and fails to meaningfully engage with the objections to the institution of marriage held by the litigants in Steinfeld. [9]


It might be difficult to bring forth a claim in the Strasbourg court for the same given the lack of comparators since all couples would have available to them one formalised relationship status- marriage, thus demonstrating the limitation of relying on the equality argument alone.


Ultimately, the prospect of abolishing civil partnerships for same-sex couples is likely to be met with considerable resistance; activist Peter Tatchell has stated that it would ‘provoke an almighty backlash’ and ‘do catastrophic damage to relations between the Conservative party and LGBT people’ [10]

Phasing out civil partnerships entirely would mean that existing civil partners would experience detriment linked to sexual orientation since, if they had already determined that marriage was a non-effective option for them, they would be forced to relinquish a previously recognised relationship form available only to same-sex couples;[11] no effective formalisation of their relationships would be available.

The course to do away with civil partnership entirely would create a far greater disturbance to family life, showing a greater disrespect for the family life of existing civil partners than would opening civil partnerships instead to different-sex couples

Under Article 8(2) the interference could be found to be unjustified on the basis of fair balance since no strong countervailing public interest can be identified. [12]

To say that cohabitation and marriage laws could use reform is a valid argument.[13] However, it adds very little to the plate since it doesn’t help the archaic narrative of the status of civil partnership being extended to only one sex.

An equal love article[14] stated that not having same-sex marriage was discrimination (prior to the 2013 Act). It asserted that it felt like a ‘black and white segregation’ where different-sex couples were the whites since they were construed as typically superior to the same-sex couples who were considered as the black, thence inferior.

Applying the same analogy, can we now say that mixed-sex couples are ‘inferior’ since marriage is the only formal status accessible to them whereas same-sex couples have both civil partnerships and marriage?


To conclude, this article has discussed how the existence of civil partnerships only for same-sex couples could be seen as discriminatory in nature. As a counter, it should be extended to mixed-sex couples since it gives them the equal status that they have been denied over the years. Further, it gives them a freedom of choice to label their formal relationship the way they wish to. The added benefits such as divorce law is a desirable feature too. Lastly, it helps mixed-sex couples break free from the patriarchal shackles of the institution of marriage.


If the regime were to be phased out entirely – then cohabitation and marriage laws would need serious improvements, such as improving intestacy rights for cohabitants, since they act as alternatives to civil partnership. Also, recourse would be needed for the couples already existing as civil partners, since they cannot be left without a formal legal status.


 

[1] HL Deb 25 January 2002, vol 630, 1719


[2] Civil Partnership Act 2004


[3] Marriage (Same Sex Couples Act) 2013 , s 1


[4] R (on the Application of Steinfeld and Keidan) v. Secretary of State for International Development [2018] UKSC 32


[5] 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 04 December 2021


[6] Civil Partnerships, Marriages and Deaths (Registration Etc) HC Bill (2017-2019), [353]


[7] HC Deb 21 October 2015, col 960


[8] See the Isle of Man’s Marriage and Civil Partnerships (Amendment) Act 2016


[9] See Haskey, J. ‘Civil Partnerships and Same-Sex Marriages in England and Wales: A Social and Demographic Perspective’ [2016] Family Law 44


[10] Equal Civil Partnerships Campaign, ‘Campaign responds to reports of Government U-turn on civil partnerships for opposite-sex couples’, (Equal Civil Partnerships, 1 February 2018), <http://equalcivilpartnerships.org.uk/2018/02/campaign-responds-reports-government-u-turn-civil-partnerships-opposite-sex-couples/> accessed 07 December 2021


[11] On the problems generated by this approach see Department for Culture, Media and Sport, Civil Partnership Review (England and Wales): Report on Conclusions (London, 2014) para 2.8, para 2.29


[12] See Oliari and others v Italy (2015) 65 EHRR 957 at [160].


[13] For cohabitation specifically reform could be made on succession rights. [See Burden UK (2008)]


[14] Professor Robert Wintemute <http://equallove.org.uk/the-legal-case/> accessed 05 December, 2021.



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