Family Law

Stala Charalambous is a family law expert

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On 21 February, the Judges in the Court of Appeal dismissed the Appeal of Rebecca Steinfeld and Charles Keidan for the right of a couple of the same sex to be able to enter into a civil partnership. This has caused a stir in the media and the decision has been referred to as ‘discriminatory’ and a ‘Breach of Human Rights’. (Steinfeld and Another v Secretary of State for Education [2017] EWCA Civ 81).

The case of Rebecca Steinfeld and Charles Keidan

In 2014, Rebecca Steinfeld and Charles Keidan notified the Chelsea Registry office that they wanted a civil partnership. They were informed that, as the law stands in England and Wales, they could not have one. They therefore made an application to court arguing that couples of a different sex should also be able to enter into a civil partnership instead of a marriage if they wished to do so. They were unsuccessful and their case went to the Court of Appeal.

Rebecca Steinfeld and Charles Keidan explained to the Court of Appeal their reasons why they did not want to marry (which included that they felt marriage did not reflect their values and did not reflect their equality within their relationship) and that they preferred to enter into a civil partnership. They argued that they, as a different-sex couple, should be able to enter into a civil partnership just like same-sex couples do so that they can have the legal rights that a couple in a civil partnership have at present.

Present position in England and Wales

At present, couples of the same sex have three options: they can simply live together without any legal rights (cohabit), enter into a civil partnership or marry. Couples that are not of the same sex have only two options: they can either just cohabit or marry. The law in relation to civil partnerships is set out in The Civil Partnership Act 2004. Section 3(1)(a) of the Civil Partnership Act 2004 prohibits couples who are not of the same sex from entering into a civil partnership.

A couple living together who have neither married nor entered into a civil partnership are referred to as cohabitees. A cohabitee does not have the same legal rights as either a married person or a person in a civil partnership. There is no legal recognition of a ‘common law wife’. To have any legal rights, a different-sex couple would have to marry (which is not what Rebecca Steinfeld and Charles Keidan wanted to do), whereas a same-sex couple have the option of either entering into a civil partnership or to marry.

The Civil Partnership Act 2004 (Amendment) Bill 2016–17

Tim Loughton, MP for East Worthing and Shoreham, has presented a Bill (The Civil Partnership Act 2004 (Amendment) Bill 2016-17) before Parliament to amend The Civil Partnership Act 2004 to allow couples of a different sex to enter into a civil partnership. This Bill had its second reading debate on 13 January 2017 but the debate was adjourned until Friday 12 May 2017. However, as a General Election has now been called and Parliament has been dissolved from 3 May 2017, the Bill falls and no further action will be taken.

The Government’s position

It appears that the Government is adopting a cautious ‘wait and see’ approach. Statistical data has shown that since same-sex couples have been able to marry, there have been fewer civil partnerships taking place and more of them have been dissolving.

The government is therefore waiting to see what effect there will be on the number of civil partnerships being taken up by same-sex couples now that they also have the option to marry. If the government sees that fewer and fewer people are choosing to enter into a civil partnership, then the government may decide to abolish civil partnership altogether.

It is important for couples to seek independent legal advice to ensure that they have documentation in place to show their intentions and wishes, in particular in relation to finances, property and inheritance.

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Rebecca Steinfeld and Charles Keidan's original application to the High Court has been reported in the Family Law Reports. If you are a subscriber, click here to read the full analysis. To request a free 1-week trial, click here.