In this blog Family Law in Partnership associate Charlotte Symes explores the arguments for allowing heterosexual couples to enter into civil partnerships.
We are partners in life, why can’t we be partners at law? That is what Rebecca Steinfield and Charles Keidan exclaimed outside the High Court in January 2016 after losing their battle for civil partnerships to be made available for opposite sex couples in the UK.
Marriage is about the recognition of the union of a couple. It is often described as a contract, as it is recognised legally and provides financial protection. The concept of marriage is equally one with social, religious and cultural expectation, which underpins much of the debate in 2016. Ms Steinfield and Mr Keidan view marriage as patriarchal in nature. Traditions such as the man’s proposal, the virginal bride in white and the assumption that the woman will take the man’s surname, hold little relevance in a society striving for sexual equality today.
Ms Steinfield and Mr Keidan did not dispute the fact that they could choose how to celebrate (or not) a civil marriage, and that they could conduct their married relationship as equals. In fact, the Judge, Mrs Justice Andrews DBE said “this is not a case where they cannot achieve formal state recognition of their relationship, with all the rights, benefits and protections that flow from such recognition; on the contrary, it is open to them to obtain that recognition by getting married.” However, this couple have genuine ideological objections to the institution of marriage and are frustrated that they cannot achieve legal and societal recognition of their union outside of that institution in the UK. This couple are not alone. 36,000 people signed a petition asking the Minister of Equalities to make civil partnerships available to all.
In the judicial review, this couple’s legal argument was that, having created the institution of a civil partnership for same-sex couples in England, heterosexual couples cannot lawfully be excluded by reason of their sexual orientation. The fact that same-sex couples now have two routes for legal recognition of their relationship was found not to be unlawful. While there may be no technical breach of Article 8 or 14 of the European Convention on Human Rights, there remain the social and moral arguments that compelled 36,000 people to sign a petition.
In France, the pacte civil de solidarité (PACS) has been available to all couples, regardless of sexuality, since 2009. Same sex marriage was legalised in France in 2013, which means there is now equality of options for all couples. In 2015, according to figures produced by INSEE, 96% of PACS were between heterosexual couples. Indeed, it is estimated that 41% of French couples have opted for a PACS over a traditional marriage.
The legal advantages of a PACS are becoming more and more aligned with a marriage. However, some call the PACS ‘marriage-lite’, because it is easier to break off compared to the divorce process. There are a number of countries that permit both same-sex and opposite-sex couples to form a civil partnership: the Netherlands, Portugal, Belgium, Luxembourg, South Africa, New Zealand, Brazil, Quebec, US states of Hawaii and Illinois, Malta, Gibraltar and Uruguay.
In England there is no substantial difference between a civil partnership for same sex couples and a civil marriage for opposite sex couples. The Government has said that the civil partnership was created to allow equivalent access to rights, responsibilities and protections to same-sex couples, as those afforded by marriage. By comparison to the PACS, the UK civil partnership was not intended or designed as an alternative to marriage. The Government argues that opposite-sex couples in the UK have access to either a civil or religious marriage that is recognised both legally and socially and in that respect there is no detriment to opposite-sex couples. Yet, as proved by the fight by same-sex couples for the right to marry, the difference between a marriage and a civil partnership is as much a moral debate as one of law.
While the UK currently recognises a PACS of a same-sex couple as a civil partnership, the PACS of an opposite-sex couple is not, which further highlights the inconsistencies in this area. Of the estimated 300,000 French people living in London, opposite-sex French couples could find themselves without financial protection, unless they decide to get married. The Equal Civil Partnerships campaign estimates there are 3 million heterosexual couples living together in the UK and, under current law, without financial protection if they remain unmarried. Clearly not all of those couples would opt for a civil partnership, but some would and do not, currently, have the option. As for Ms Steinfield and Mr Keidan, unsurprisingly they are not giving up and have already indicated that they will be appealing the High Court decision.