Wednesday, 22 February 2017

Civil Partnership ~ the future?

The Court of Appeal has upheld the ban on heterosexual civil partnerships.

" ... Rebecca Steinfeld and Charles Keidan, are a young couple in a committed long-term relationship. They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They consider that the status of civil partnership would reflect their values and give due recognition to the equal nature of their relationship. Ms Steinfeld and Mr Keidan in good faith consider that marriage does not reflect the way in which they understand their commitment to each other or wish their relationship to be seen. Ms Steinfeld states in her witness statement that it is very important to them to have a civil partnership as the legal framework within which to raise their child as a CP would give their child a stable environment in which to grow up. They want their child to see the relationship as one of total equality reflecting the equal independent contribution which both parties make. They also desire the financial benefits of marriage and civil partnership, for example the rights of inheritance and relief from inheritance tax on death.  This would protect their child in the case of their premature death.  Moreover, they want their relationship to have the public recognition that registration as a civil partnership would bring."

Those were the words of Lady Justice Arden in the Court of Appeal (Civil Division) in Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81 (Arden, Beatson and Briggs LJJ).

The Civil Partnership Act 2004 created the "civil partnership" as the means by which same-sex partners can obtain formal legal recognition of their relationship outside marriage.  More recently, the Marriage (Same Sex Couples) Act 2013 enables same-sex couples the alternative option of entering into marriage.  However, Civil Partnership is not available to opposite-sex couples - see the 2004 Act section 3.

The appellants based their case on the combination of Articles 8 (Right to respect for private and family life) and 14 (Prohibition of Discrimination) of the European Convention on Human Rights.

Family Law Week summarises the judgment by saying:

"The Court by a split decision dismissed the appeal of Rebecca Steinfeld and Charles Keidan. All of the judges were critical of the status quo. All agreed that the couple are being treated differently because of their sexual orientation, and that this impacts their private and family life. All rejected the argument that they could 'just get married'. Most importantly, all emphasised that the government cannot just 'wait and see' indefinitely, but must make a decision quickly.

But Lord Justices Beatson and Briggs concluded that the government's current "wait and evaluate approach" is objectively justified. The ruling states that the government now has only a short window to 'wait and evaluate' before deciding whether to extend civil partnerships to all, or else their position will become unlawfully discriminatory."

A Private Member's Bill before the House of Commons seeks to extent civil partnership to opposite-sex couples - see Civil Partnership Act 2004 (Amendment) Bill

The Marilyn Stowe blog - Court of Appeal rejects straight civil partnerships - notes:

All three judges admitted the law represented “a potential violation of the [couple’s] human rights under Article 14” and Article 8 of the European Convention on Human Rights. These prohibit discrimination and ensure the right to ‘respect for a family and private life’.

The main point of contention in this case was the government’s “wait and see” stance on the issue. They will only pursue a change in the law if the potential take up of civil partnerships warrants the effort. While Lady Justice Arden believed this approach was not good enough, Lord Justice Beatson and Lord Justice Briggs believed the government’s attitude was justified. So the appeal was ultimately dismissed on a 2-1 majority.

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