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12 JUN 2014

Same-sex marriage but not mixed-sex partnerships: should the Civil Partnership Act 2004 be extended to opposite-sex couples? [2014] CFLQ 173

Keywords: Civil partnerships – opposite-sex couples – equality – privacy – dignity – autonomy – human rights – PACS

The Marriage (Same Sex Couples) Act 2013, which was presented by the government as an equality measure, enables same-sex couples to marry, but does not extend civil partnerships to opposite-sex couples. This article suggests that the Civil Partnership Act 2004 in its current form should be extended to heterosexual couples on the grounds of equality, privacy, dignity and autonomy and argues that denying mixed-sex couples the right to form a civil partnership contravenes Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The article also considers whether heterosexual couples would regard forming a civil partnership as an attractive option by examining research relating to the attitudes of cohabiting couples who have chosen not to marry and the popularity of formal alternatives to marriage among opposite-sex couples in France and the Netherlands.

While the distinguishing features of the French pacte civil de solidarite (PACS) and the Dutch model of registered partnership make it difficult to predict the popularity of civil partnerships among heterosexual couples in England and Wales, research regarding cohabitants’ perspectives on marriage suggests that many couples who reject marriage on ideological grounds would form a civil partnership if this option was available. The article thus concludes that the Civil Partnership Act 2004 should be extended to opposite-sex couples.