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Family law continues to lag behind social change

Date:28 FEB 2017
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Sarah Anticoni, Partner, Charles Russell Speechlys

On 21 February 2017, the Court of Appeal comprising of Lady Justice Arden, Lord Justice Beatson and Lord Justice Briggs, rejected an appeal brought by Rebecca Steinfeld and Charles Keidan. Ms Steinfeld and Mr Keidan had sought to lift the bar on opposite sex couples entering into a civil partnership (s 3(i)(a) of the Civil Partnership Act 2004 (the 2004 Act)).

The concept of a civil partnership (CP) allows same-sex partners to obtain formal legal recognition of their relationship outside marriage. The young couple are in a committed long-term relationship and have a child together. They wished to formalise this relationship but not in marriage, which they considered had historical patriarchal aspects.

Ms Steinfeld and Mr Keidan had sought permission of the court to judicially review the decision of the Secretary of State not to put forward changes to the 2004 Act. They had given notice to the Chelsea Register Office in October 2014, indicating they wished to enter into a CP but were told that they were prevented from entering into a CP. 

They also sought a declaration of incompatibility under the Human Rights Act 1988, in relation to s 3(i)(a) of the 2004 Act exploring how the European Convention on Human Rights applied to the Secretary of State’s position when applying Art 14, taken with Art 8 of the Convention, prohibiting discrimination and the right to respect for private and family life were considered.

Family practitioners never thought it likely that the appeal would succeed on the discrimination point. However all three judges agreed there was prima facie discrimination and there has been some surprise as to quite how close the appeal came on certain points.

One of the more interesting aspects of Lady Justice Arden’s judgment (see para [132] and following) are the statistics included within the appendix relating to the formation and dissolution of civil partnerships after the Marriage (Same Sex) Couples Act 2013 (the 2013 Act).

Whilst many recognise that law tends to follow social change, the time lag in family legislation is particularly slow. The statistics included draw on public consultation data carried out prior to the 2004 Act being enacted and then, compares the shift in trend once the 2013 Act was in place and same-sex couples could marry or convert their civil partnerships into marriages.  According to the Office of National Statistics (ONS) there were some 3,172,000 opposite sex cohabiting couple families in the UK in 2016, being the fastest growing family type over the last 20 years.  In contrast, there are 47,000 civil partnerships in existence as at the end of 2015. Indeed in the first 5 years following their introduction, some 79,000 civil partnerships were formed (far exceeding the original forecasts when the CPA was introduced).

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The latest statistics published by the ONS on 12 September 2016 (see bulletin Civil Partnerships in England and Wales 2015), show a decrease in the number of couples choosing to enter into a CP.  Only 861 were celebrated in 2015, down from 1,683 in 2014 and 5,643 in 2013.  Whilst not necessarily relevant to this appeal, practitioners might note that 48% of those now entering into CP’s are over 50 years of age. 

In essence, the appeal failed with the Secretary of State being allowed further time to, ‘wait and evaluate’, as what to do with CP’s. The status quo could remain in place; they could be abolished; CP’s could be closed to new members entering into any or, as Steinfeld and Keidan sought, they could be extended to opposite sex couples. 

The Lord Justices made it clear that it was not for them to micromanage government policy.  In recent times judges have been heavily criticised on how they have applied and interpreted statutes. The Lord Justices were satisfied that the government had a legitimate aim to undertake a proper assessment of the options for the way forward in light of any change in demand by couples for civil partnerships and marriage. The hope was that this ‘wait and see’ policy, public funds would be saved and the government would consider carefully the options and not embark on a change in the law with the right decisions being made for the future.

Reference was made in the proceedings to the fact that there is currently before Parliament the Civil Partnership Act (Amendment) Bill 2016. This is yet another private members bill addressing family issues which historically had been the government’s domain to consider the necessary structures and protections in place for society.

No timetable has been set for the assessment that the Secretary of State might carry out or need to see before embarking upon the introduction of new legislation ( if thought necessary) for those opposite sex couples who do not wish to marry. One wonders if the timing will be dependent upon the next Census or perhaps another Law Commission report.

Most accept that it is for Parliament to introduce primary legislation to change the law at a fundamental level for cohabitants. Not all those cohabiting would ever contemplate entering into civil partnership. At present it is all or nothing. Marriage or (for same-sex couples) civil partnerships or nothing, save for a bundle of property, trust, tax, inheritance and children laws.

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.

Let us hope that by the time Steinfeld and Keidan’s child attains majority, such law is on the statute book.

Sarah Anticoni is the winner of the Family Law Dispute Resolution Practitioner of the Year award at the 2016 Family Law Awards.