Family Law

Since the introduction of same-sex marriage on 29 March 2014, same-sex couples have had the choice of entering either into civil partnerships or into marriage. In contrast, the Civil Partnerships Act 2004 currently bars opposite-sex couples from entering into civil partnerships, and therefore the only status open to such couples wishing to formalise their relationship is marriage, although the Marriage (Same-Sex Couples) Act 2013 required a review of the operation and future of civil partnership.

In Steinfeld and Another v Secretary of State for Education [2017] EWCA Civ 81, the Court of Appeal has dismissed the appeal of Rebecca Steinfeld and Charles Keidan against an earlier High Court decision refusing them judicial review of the Secretary of State’s decision not - at this stage - to propose any change to the bar on opposite-sex couples entering into a civil partnership. The decision was on one issue a majority decision.
In their judgment all the members of the Court consider that:

1. the bar constitutes a potential violation of the appellants’ human rights under Article 14 (prohibition of discrimination) taken with Article 8 (right to respect for private and family life) of the European Convention on Human Rights; and
2. the Court should not make any declaration of incompatibility with the couple’s human rights. There is in any event a Private Member’s Bill proposing the removal of the bar, so that question is already before Parliament.

The Court’s reasons on the final issue of justification differ:

• The majority, Lord Justices Beatson and Briggs, in agreement with the decision of the Judge in the High Court, consider that the difference of treatment of same-sex and opposite-sex couples is justified by the Secretary of State’s policy of “wait and evaluate”. While recognising that the focus of the review on the demand by same-sex couples for civil partnerships rather than the position of all couples is open to criticism, Lord Justices Beatson and Briggs consider it proportionate, and therefore lawful, for the Secretary of State to have further time to undertake a proper assessment of the best way forward on what is an important matter of social policy, when a number of options, including the extension of civil partnership to different-sex couples, or its phasing out, fall to be considered.
• Lady Justice Arden, dissenting on the justification issue, considers that the potential violation of the appellants’ rights is not justified by the Secretary of State’s current policy of 'wait and see', though it is open to the Secretary of State to reformulate her policy. The Secretary of State’s current policy is that she will not propose any change to the Civil Partnerships Act 2004 until she has more statistical data about whether the number of same-sex couples choosing or remaining in civil partnerships rises or falls following the introduction of same-sex marriage. This policy is both open-ended in time and focused solely on the reduction in number of civil partnerships, and it does not address not the wider issues.

For the detailed reasons in the written judgments, now available, the Court dismisses the appeal.

Graeme Fraser, Partner at Hunters Solicitors, and cohabitation expert, commented:

'Today's decision is surprising because the extension of civil  partnerships to opposite-sex couples would have achieved equality and  non-discrimination.

I anticipate Steinfield and Keidan will consider taking their  case to Europe on the question of whether the fact that civil partnership is  not open to opposite-sex couples is discriminatory and a violation of the  European Convention of Human Rights.

Policy makers should be wary of the ramifications of this case  being taken to Europe. They may wish to consider the abolition of civil  partnerships completely, since the original intention was to serve same-sex  couples who were unable to obtain equivalent rights to opposite-sex couples, as  they were unable to marry. Since the enactment of same-sex marriage, the  retention of civil partnerships is no longer a necessity. However, same sex  couples who have chosen not to convert their partnership to civil marriage  should be allowed to remain in civil partnerships if they so choose.

The question of extending civil partnerships to opposite-sex  couples would not however protect people left vulnerable under the current law  where there are no specific cohabitation family law remedies, because those who  are in a stronger position financially retain the option not to marry or enter  into civil partnerships.

We must continue to advocate for change to protect people left  vulnerable under the current law, many of whom are often women with children  who have no financial provision, because their long term partners will not or  cannot marry them. Only legislative cohabitation reform can achieve this aim.'

Sarah Anticoni, Partner at Charles Russell Speechlys LLP, said:

'This case claimed that  by excluding heterosexual couples from the right to enter into a Civil  Partnership, they are being discriminated against in accordance with European law. This was a bold attempt to see how far judges can be pressed to extend law  by precedent rather than waiting for Parliament to enact something more  substantive.

Few expected the Court  of Appeal to rule in favour of extending Civil Partnerships in this way despite  thousands of members of the public having petitioned for such a change. While  law tends to follow social change, family law in 2017 seems oddly out of kilter  with what society has chosen to do. Many same sex couples welcomed the  introduction of civil partnership but once that was replaced with same sex  marriage, Civil Partnerships began to wane.

It is unusual for a  test case on discrimination to be taken by a majority group in this way. Judges  have been heavily criticised on how they have applied and interpreted statute  but it is for Parliament to change law at such a fundamental level.

In the absence of any  new body of law that protects cohabitants rights on property, finances and  children, heterosexual couples who do not wish to marry can be left vulnerable.'

Responding to the  decision, Nigel Shepherd, chair of Resolution, said:

'It is understandable that some couples are attracted  to a form of registered partnership that is not marriage, but which will give them similar protection to marriage. 

That said, from a purely legal perspective, it makes little sense to retain civil partnership. But, if the option of civil partnerships for same sex couples is to continue to be retained, then civil partnerships must also be available to opposite sex couples in order to avoid discrimination. We agree that there is a pressing need for the government to  address this issue.

As family lawyers committed to the constructive  resolution of issues on family breakdown, we see that the real injustice is the  lack of legal rights for cohabiting couples – the fastest growing household  type in the country. Our lawmakers must also look at introducing safety  net legislation that will provide protection and fair outcomes when cohabiting  couples separate.'

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For an in-depth analysis of Steinfeld and Another v Secretary of State for Education [2017] EWCA Civ 81 see the March issue of Family Law.

The judgment is available to download here.

The above summary is issued to assist understanding of the Court’s decision. It does not form part of the reasons for that decision. The full judgment of the Court is the only authoritative document.