Family Law

At the start of the summer of last year, in an action brought by Rebecca Steinfeld and Charles Keidan - a couple who wanted to enter a civil partnership rather than marry - the UK Supreme Court held that the Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights (ECHR): Civil partnership is open to same sex couples only, whereas marriage is open to everyone; and because the Act does not allow opposite sex couples to opt for the status, it is discriminatory, writes Brodies' Leonie Burke.

At the start of the summer of 2018, in the action brought by Rebecca Steinfeld and Charles Keidan, the couple who wanted to enter a civil partnership rather than marry, the UK Supreme Court held that the Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights (ECHR): Civil partnership is open to same sex couples only, whereas marriage is open to everyone; and because the Act does not allow opposite sex couples to opt for the status, it is discriminatory.

In a civil partnership, a couple is entitled to the same legal treatment in terms of inheritance, tax, pensions and next-of-kin arrangements as marriage.

Since March 2014, same sex couples have been able to decide whether to enter a civil partnership or to marry, but this has not been possible for mixed sex couples.

There are various reasons why people may not want to marry. Some wish to avoid the religious connotations they see it as coming with. Also common is that, as an institution, they feel that marriage doesn’t reflect their equal relationship because of its roots in traditional gender roles. In a statement affirming that view, Ms Steinfeld and Mr Keidan said they felt that marriage wasn’t an option for them; and that they saw civil partnership as a “modern, symmetrical institution” that would allow them to bring up their children as equal partners and set the best example for them.

At the Conservative party conference in Birmingham last year, Theresa May announced that in future every couple in England & Wales will be able to choose to have a civil partnership to formalise their relationship, as an alternative to getting married.

Separately, the Scottish Government also has to consider the future of civil partnership in Scotland and act to ensure that there is equality.

A public consultation has been launched and the Scottish Government is now inviting written responses to that. The consultation in Scotland floats two alternative options as follows:

• No new civil partnerships could be entered into in Scotland. Existing civil partners could remain in their civil partnership and their rights would remain unchanged.
• Civil partnership would be open to opposite sex couples, on the same footing as for same sex civil partnerships.

Either option will provide equality and from a legal perspective addresses the issue of incompatibility with the ECHR.

If you have a view, be it personal, political, or emotional you may well want to have your say in the consultation process.

To view the Scottish Government consultation paper and provide a response, follow https://www.gov.scot/Resource/0054/00540944.pdf.

The closing date for responses was 21 December 2018.