Should heterosexual couples have equal rights to a civil partnership?
A two-day judicial review hearing will begin on 19 January 2016 in the High Court after a heterosexual couple has challenged the decision to refuse them a civil partnership.
Background
In September 2014 Charles Keidan and Rebecca Steinfield sought to register a ‘Notice of Intention’ to form a civil partnership but this was refused by the Registrars at Kensington and Chelsea Old Town Hall in October 2014.
In December 2014, they issued an application at the High Court for judicial review against the UK government.
In February 2015, they were granted permission for their case to proceed and were granted a partial Protective Costs Order on the basis that it is in the public interest for a decision to be made on this issue.
Their case will now be heard this month across two days in the High Court to determine whether or not the refusal to allow them to enter into a civil partnership breaches their rights under the European Convention of Human Rights.
The Law
Section 1 of the Civil Partnership Act 2004 restricts civil partnerships to same-sex couples. It was on this basis that the Registrars at Chelsea Old Town Hall had to refuse Charles and Rebecca’s ‘Notice of Intention’ to enter into a civil partnership. As the law currently stands, a heterosexual couple does not have the right to enter into a civil partnership.
However, this is now in stark contrast to the Marriage (Same Sex Couples) Act 2013 which came into effect on 17 July 2013, legalising same-sex marriage and giving same-sex couples the choice between civil partnership and marriage.
Charles and Rebecca are now seeking a declaration that the Civil Partnership Act 2004 is incompatible with Article 8 and Article 14 of the European Convention on Human Rights on the basis that: –
Article 8: Provides a right to respect for one’s private and family life.
Article 14: Provides a right not to be discriminated and to enjoy the rights and freedoms provided by the Convention without discrimination on any ground, including sex or sexual orientation.
The burden of proof is on the UK Government to convince the High Court why it is necessary to exclude opposite-sex couples from civil partnership, particularly now that marriage is an option for same-sex couples.
If the High Court grants a declaration of incompatibility then the UK Government would be expected to amend the Civil Partnership Act 2004 to extend civil partnerships to all, regardless of sex or sexual orientation.
Comment
If the High Court does grant such a declaration of incompatibility and the Civil Partnership Act 2004 is amended to allow heterosexual civil partnerships then this will give all couples the choice between a marriage or civil partnership and could have wide reaching effects for thousands of couples looking to formalise their relationship in a way of their choosing.
The decision to enter into a civil partnership or a marriage is a personal choice, which Charles and Rebecca argue should be available to all couples regardless of sex or sexual orientation.
When asked by the Equal Civil Partnership campaign their reasons for wanting a civil partnership instead of a marriage, Charles and Rebecca are reported as saying: –
“Personally, we wish to form a civil partnership because that captures the essence of our relationship and values. Civil partnerships are a modern social institution conferring almost identical legal rights and responsibilities as marriage, but without its historical baggage, gendered provisions and social expectations. We don’t think there is any justification for stopping us or other opposite-sex couples from forming civil partnerships.
“We also believe that opening civil partnerships to opposite-sex couples would complete the circle of full relationship equality that began with the hard-won victory for same-sex marriage. We campaigned for equal marriage and believe that the significance and symbolism of opening marriage to same-sex couples cannot be overstated. Legalising same-sex marriage was the recognition that everyone is of equal worth and has the right to equal treatment under the law.”
However, even if the High Court does grant a declaration of incompatibility, it will then be for the UK Government to amend the Civil Partnership Act 2004. This is likely to lead to strong opposition from those who do not share Charles and Rebecca’s view. The legalisation of same-sex marriage was a landmark decision in the pursuit of equal rights for all, but such a change required significant legal, public, and political pressure and the same is likely to be true for this.
Keep a close eye on our Anthony Gold blog for an update following the release of the judgment in this case.