This month we are examining the impact of a June 2018 ruling by the Supreme Court on the state of relationships in Britain. More to the point, we are considering how the ruling could lead to a change in the law on civil partnerships.
A civil partnership is a legal union between same-sex couples. If you are a civil partner, you are entitled to the same treatment as a married couple on a wide range of legal matters. The problem that the case highlighted was that only same-sex couples can enter into a civil partnership. Those opposite-sex couples who do not wish to get married but want some kind of legal recognition are not allowed to form a civil partnership. Now, however, this may change.
The Supreme Court has made a declaration that the current law restricting opposite-sex civil partnerships is in breach of human rights legislation. What this means is that there will be more pressure on the government to change the law to allow any couple to register as civil partners.
To help explain why the court reached this decision, let’s look in more detail at the background to the case. It was Charles Keidan and Rebecca Steinfeld who started the action in 2016 when they asked the High Court to review the law. The case eventually progressed to the Supreme Court, as it required a careful review of the current rules, which are contained in the Civil Partnership Act of 2004 (CPA 2004). CPA 2004 makes it clear that only same-sex couples are allowed to form a civil partnership, and for the time being this will remain the case. The Supreme Court is not allowed to overrule an Act of Parliament, but by making its declaration, it has highlighted that the current law is discriminatory.
So why is it a big deal that not all couples are allowed to become civil partners? Well, the first issue is the number of people who cohabit and presumably have no interest in getting married – over 3 million in Britain and rising. The second issue is that these unmarried couples will not be treated as well as a couple that is either married or has entered into a civil partnership. There are financial protections for legally recognised couples on matters of relationship breakdown and death, and in relation to tax issues.
It is already widely recognised that the law regulating marriage is in need of modernisation. It is also clear that today many couples do not want to get married but would like some public recognition if they choose to live together. There has been a common misunderstanding that couples who cohabit for a number of years automatically gain legal rights (common law marriages), but this is not true. What the court has highlighted in this case is that CPA 2004, with a simple change, could provide a solution to these issues. More to the point, it is not just a case that CPA 2004 is out of step with modern family life, but that it is unfair to have a law that treats same-sex and opposite-sex couples differently.
To give you an idea of the types of unfair treatment the current law supports, there are three main areas:
1. Financial protection on splitting up – say, for example, a woman in her 50s has been with her partner for 30 years. They live in a property owned by him and they have a 19-year-old child living at home and in work. The relationship breaks down and the woman is asked to leave the family home. Given that the property is not in joint names, she will not be able to claim a share in that property. She will be left with very little compared with what a wife or civil partner would get.
2. Upon death – if a couple is married or in a civil partnership and one party dies without a Will, the intestacy rules will protect the survivor. With unmarried opposite-sex couples, the survivor has no automatic right to anything from the deceased’s estate.
3. Tax law – this allows civil partners and married couples to benefit from Inheritance Tax (IHT) and Capital Gains Tax (CGT) allowances. These couples are allowed to transfer assets between them in life or upon death. However, unmarried opposite-sex couples living together are classified as unrelated for tax purposes.
These are just a few areas where the law, as it stands, is unfair. What is likely to happen is that the government will review CPA 2004 and look at opening up civil partnerships to any couple, regardless of their sexual orientation. When the court makes a declaration of incompatibility, as it has in this case, it does not automatically change the law, but it does make it more likely that the government will look at the need to amend the law in the future.