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.