Civil partnerships are now to be open to all but the solution of that problem has led to another - while same-sex couples can convert a civil partnership to a marriage, there is no provision for opposite-sex couples to do the same.

A year ago, I wrote about the case of Rebecca Steinfeld and Charles Keidan (R (on the application of Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32), where the Supreme Court ruled that to deny heterosexual couples the right to enter into civil partnerships was incompatible with the European Convention of Human Rights, creating an unjustified interference with the prohibition against discrimination (Article 14) and the right to respect for private life (Article 8).

What has happened since?

The background

The Civil Partnership Act 2004, afforded same-sex civil partners the same legal treatment as heterosexual married couples in terms of inheritance, tax, pensions and next-of-kin arrangements. Years of campaigning thereafter led to the right to same-sex marriage, but civil partnerships remained off-limits to opposite-sex couples. Cue yet more years of campaigning, culminating in the Supreme Court’s declaration of incompatibility in the case of Steinfeld and Keidan.

Throughout those proceedings, the government recognised that: 

a) there was a difference in treatment between same-sex and different-sex couples on this point,

b) the relevant rights were engaged,

c) the discrimination interfered with those rights, and

d) it was unjustifiable as a continuing position.

The persisting “interim” position however, was argued to be a justified interference on the back of inconclusive investigations and consultations into public opinion and societal attitudes conducted in 2012 and 2014. The Supreme Court disagreed, Lord Kerr in particular condemning the lengthy intentional inaction.

The update

The decision can hardly have come as a surprise to the government, and at the time of my last article we were awaiting the action in response. The wheels, it seems, grind slowly. One year on, I have looked again at the position.

On 2nd October 2018, then Prime Minister Theresa May fairly swiftly announced the arguably obvious response that civil partnerships would be extended to heterosexual couples. The Civil Partnerships, Marriages and Deaths (Registration Etc.) Act 2019, provided such extension (amongst other things), receiving Royal Assent on 26 March 2019. The associated secondary legislation (Civil Partnership (Opposite-sex Couples) Regulations 2019) was read and approved in the House of Lords on 5th November 2019.

The result is that different-sex couples in England and Wales will be able to give notice from 2nd December 2019 and register civil partnerships from New Year’s Eve 2019.  

Problem solved?

Well, yes…. But…Interestingly, a new inequality has been created. Through the Marriage (Same-Sex Couples) Act 2013, same-sex couples are able to convert a civil partnership into a marriage. There is nothing equivalent for different-sex couples.

The government’s position

This side-effect may not have been intentional, but the government are fully aware of it. It was explained by Baroness Williams of Trafford at the 5th November 2019 reading of the Civil Partnership (Opposite-sex Couples) Regulations 2019 in the House of Lords that although it was not accepted that the two groups were directly comparable on this issue, maintaining any difference was in any event justified pending the outcome of a consultation. Sound familiar? This was essentially the same justification used in Steinfeld and Keidan.

The cited reasoning for both the apparent distinction between the groups and the need for time is that careful consideration is needed because the right to convert a civil partnership into marriage was only introduced to enable same-sex couples to marry without having to dissolve their civil partnership, once marriage became available to them. The same circumstance, the government argues, will not exist for opposite-sex couples, because opposite-sex couples will have the right to marry at the time they enter into a civil partnership.

Does that make it equal?

The government’s justification would surely hold weight if the conversion under the Marriage (Same-Sex Couples) Act 2013 was time-limited to be available only to couples whose same-sex civil partnership preceded the introduction of their right to marry. It does not. It is a continuing right. As such, no matter the historic reasoning, this distinction will simply create a new discrimination, again based purely on whether a couple are same-sex or opposite-sex. The former can convert a civil partnership into a marriage, the latter cannot.

Righting the new inequality

The government’s view was that there should be no further delay in passing the right to opposite-sex civil partnerships, and that the issue of conversion would be considered separately in the future. Continuing the recognised difference of position on conversion was justified as a case of “maintaining the status quo in the very short term—we anticipate for no more than a few months”.

It is fair to note that this is a relatively tight timescale. The consultation on the point ended in August 2019, the “few months” remark was made on 5th November 2019, and parliament was dissolved the following day in advance of the general election.

The discriminatory circumstance will exist, at least as a theoretical inequality, from the start of 2020, but couples who enter into heterosexual civil partnerships in the coming “few months” (whether they have actively waited to do so or not) might well be unlikely to wish to immediately convert their partnership into a marriage. In those circumstances, there may be little or no immediate or imminent practical impact, but it is interesting that the government has knowingly created a strikingly similar discriminatory circumstance, and used the same justification.

Perhaps this will need to be revisited again this time next year….

Alexandra has a busy family law practice. She has experience in family matters, including cases involving non-molestation orders, child arrangements orders and specific issue orders. Alexandra’s status as a trained mediator allows her to make her clients’ experience as straightforward as possible, at what is often a very difficult time.