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OGR Stock Denton , 20 MAR 2018

Cohabitation conundrum: extending civil partnerships to opposite-sex couples

Cohabitation conundrum: extending civil partnerships to opposite-sex couples

The full version of this article appears in New Law Journal, the leading weekly legal magazine.

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Last month, the issue of extending rights for unmarried opposite-sex couples was debated enthusiastically in the House of Commons, as the Civil Partnerships, Marriages & Deaths (Registration Etc) Bill moved unopposed to the next stage of its passage through Parliament.

The views expressed in the debate suggest that there is increasing support from MPs for some form of legislative reform, as well as an increased impetus to promote public awareness of the relative lack of rights afforded to cohabitees.

The Bill was introduced by Conservative MP, Tim Loughton, and included several important provisions relating to the rights of cohabiting opposite-sex couples.

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Glaring inequality

In the House of Commons at the Bill’s second reading, Mr Loughton said he intended to correct the ‘glaring inequality’ that was brought about by the Marriage (Same Sex Couples) Act 2013. Same-sex couples are able to continue in a civil partnership, take up a civil partnership or enjoy the recent extension of marriage, while opposite-sex couples have only the option of conventional marriage.

Yet while Mr Loughton is known to support the idea of extending civil partnerships to opposite-sex couples, he allowed the Government to amend the Bill to require only a review of the current arrangements. This appears to have been a pragmatic move, intended to secure the progress of the Bill.

However, his pragmatism did not prevent him from making an impassioned case for the move. In his speech, he quoted figures showing that there are some 3.2m cohabiting opposite-sex couples in this country, amounting to more than 4,900 couples per parliamentary constituency and about double the figure that was reported just 15 years ago.

The East Worthing and Shoreham MP said those couples are responsible for more than two million children, meaning that a third of birth registrations are to unmarried parents who are living together. ‘If just one in ten cohabiting opposite-sex couples entered into a civil partnership, that would amount to more than 300,000 couples and their children,’ he said. Whether we like it or not, he said, cohabitation is the fastest growing form of family in this country.

Changing society

Mr Loughton argued that our changing society must adapt in order to promote family stability and that this will provide the continuity that gives children the best and most stable start in life.

He also suggested that the problem of the lack of rights for cohabiting couples was compounded by a widespread lack of awareness of the issue amongst the general public. In particular, he highlighted the common misconception that there was such a thing as a common-law wife or husband. He added:

‘If a woman has a child with her partner and the relationship breaks down, she is not entitled to any form of financial support if they are not married. There is no automatic entitlement to property, even if she had been paying into the mortgage.’ 

Moving to address the Government amendments to the Bill, he had doubts about what further research into the demand and for reform and the practicalities involved would achieve.

He noted that there have been two public consultations on the subject in the last five years and 13 years’ worth of civil partnerships for same-sex couples in practice from which to gather evidence. There was also evidence that civil partnerships in South Africa and France had created greater stability, whether they were opposite-sex or same-sex partnerships, than traditional marriage.

‘More than 80% of same-sex couples who have committed to a civil partnership do not think that they need to or want to convert that into a marriage,’ he said.

Mr Loughton’s proposals received widespread support from colleagues on all sides of the House during the debate.

Labour MP, Dr David Drew highlighted the work of Resolution, the family justice organisation, in raising public awareness of this issue, while his Labour colleague Sandy Martin said that he is in a civil partnership himself and called for their extension to opposite-sex couples.

Meanwhile, Conservative MP James Cartlidge raised the case of an opposite-sex couple who went to the High Court in 2016 to seek the right to enter into a civil partnership (Steinfeld & Anor v The Secretary of State for Education [2016] EWHC 128 (Admin).

Mr Cartlidge said: 

‘The case was dismissed because the judge ruled that they were not subject to humiliation or derogatory treatment as a result of their status. Surely the point is that the system discriminates de facto, irrespective of whether people are actually abused.’

The case, brought by Rebecca Steinfield and Charles Keidan, was also heard in the Court of Appeal in 2017 (Steinfeld & Anor v Secretary of State for Education [2017] EWCA Civ 81), and the Supreme Court hearing will take place on 15 and 16 May 2018.

His Conservative colleague Helen Whately agreed and also emphasised the need to promote stable relationships. She said:

‘I believe that if a civil partnership is the way in which a couple want to formalise their commitment to each other, it is wrong to stand in their way.’

Home Office Minister Victoria Atkins had introduced amendments to the Bill to require the Government to undertake a further review of the operation of civil partnerships.

Responding to the debate for the Government, she said: 

‘This [review] is not just about eligibility; it is also about the rights that flow from any changes. For example, the rules for the dissolution of civil partnerships and divorce are different for same-sex and opposite-sex partners.’

Her argument was that it is proportionate to gather more data so that the Government could be confident that the demand for civil partnerships has stabilised following the introduction of same-sex marriage. She said that she expected a proportionate amount of evidence to be available by September 2019 and that this would enable the government to have confidence in assessing the ongoing level of demand for civil partnerships among same-sex couples.

One option raised was that the Government would also continue to consider whether phasing out civil partnerships for same-sex couples was ‘the best way forward’. Atkins said:

‘We are therefore committing to undertake research with same-sex couples to understand their motivations for forming and remaining in a civil partnership, and what they may do if the evidence drives us to remove them.’

The Government’s previous consultation did not, according to the minister, reveal a strong appetite among opposite-sex couples for entering a civil partnership. Meanwhile, the most recent survey conducted in 2014 with a relatively small number of respondents suggested that people would not wish for an extension of civil partnerships.

Common themes

Irrespective of the differences of opinion expressed during the debate, a number of common themes emerged, including the changing demographics which meant that increasing numbers were choosing not to marry.

Some felt that this was due to a reluctance to marry, which in itself needed to be investigated, while others considered the civil partnerships model to be inappropriate, particularly in view of the declining numbers of same-sex cohabiting couples who have entered into civil partnerships since the introduction of same-sex marriage. The opposition to Mr Loughton’s Bill suggests that this attempt to reform the law may well flounder because the model of civil partnership will simply be used less by same-sex couples as they decide to marry instead. Opponents will argue that the declining number of civil partnerships for same-sex couples consequently make them less of a viable option for opposite-sex couples. There is also the perception perhaps that enthusiasm for opposite-sex civil partnerships will reduce as time goes on.

Kicking reform of the law into the long grass has been the apparent strategy of all Governments since the Law Commission’s recommendations to reform cohabitation law in 2007. It was highly encouraging nevertheless to see these matters being debated positively in Parliament, and the level of participation and enthusiasm shown by MPs on this issue following on from the momentum created by Resolution’s Cohabitation Awareness Week.

Comment

As time goes on, Parliament will have to address the issue again and fundamentally consider which laws need to be introduced to regulate modern families when such large numbers choose to live and raise families outside the traditional marriage model.

Introducing new law, in achieving equality before the law, Parliament should first address the protection of the most vulnerable members of society. Currently these people are sadly let down by laws that do not properly recognise cohabitation and fail to provide a family law based system of remedies. There are several options, including adoption of the same law available in Scotland based on compensation or relationship generated disadvantage, or those options to reform the law previously tabled by Lord Lester and Lord Marks in the House of Lords upon lines more akin to the financial remedies available on divorce.

The positive reception by MPs and encouragement of a concerted effort to make the public aware of their lack of rights, as well as the potential for cohabitants to enjoy improved financial security should new laws be introduced, suggests this debate has much further to run inside and outside of Parliament as well as in the courts. February’s Parliamentary debate marks a small but important step forward in recognising the importance of these issues which affect nearly one in six families today.

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