August 28, 2018
Supreme Court rules against the Government on Civil Partnerships
R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) (Respondent)  UKSC 32
Link to judgment here: Judgment on BAILII (HTML version)
In a unanimous judgment on June 27 2018, the Supreme Court ruled that the current Civil Partnership law was incompatible with Article 14, read in conjunction with Article 8. of the European Convention on Human Rights. The European Convention is incorporated into UK law by the Human Rights Act 1998.
The Civil Partnership Act 2004, which came into effect on the 5th December 2005, introduced civil partnerships, but they are only available to couples of the same sex. This case was brought by a heterosexual couple who wished to enter into a civil partnership but were refused under s.3 of the Act when they tried to register at Chelsea Town Hall back in October 2004.
Following a Judicial Review, and an appeal to the Court of Appeal, the Supreme Court heard the case in May 2018. The couple argued that not allowing them to enter into a civil partnership because they were not a same-sex couple was discriminatory. By the time the case reached the Supreme Court it was accepted that access to civil partnerships falls within the ambit of article 8; that there is a difference in treatment between same sex couples and different sex couples in relation to the availability of civil partnerships; that this difference in treatment is on the ground of sexual orientation, a ground falling within article 14; and that the appellants are in an analogous position to a same sex couple who wish to enter into a civil partnership. The question for the Court therefore was whether the government could show that unequal treatment of same-sex and different sex couples was justified.
The Court found that the current legislation was discriminatory, as same-sex couples can now enter into same-sex marriages or civil partnership but heterosexual couples cannot enter into civil partnerships. The fact that the Civil Partnership Act 2004 was not repealed when the Marriage (Same Sex Couples) Act 2013 was enacted created the difference in treatment.
The Government is now under considerable pressure to urgently review the law.
The rights granted to a couple under a Civil Partnership (such as pension benefits, inheritance and tax reliefs) mirror those enjoyed by married couples. There are however some differences should the relationship break down and the partnership come to an end.
To end a marriage by divorce you must show that your marriage has ‘irretrievably broken down’. This can be for one of five reasons:
- Unreasonable Behaviour
- Desertion (your spouse has left you)
- If you have lived apart for at least 2 years and you both agree to divorce
- If you have lived apart for at least 5 years regardless of whether your spouse agrees to divorce
To end a Civil Partnership you require a ‘dissolution order’. It is similar in process to a divorce in that you still need to show that your Civil Partnership has ‘irretrievably broken down’. To do this you can use the reasons listed above for marriage, with the exception of adultery. This is because adultery in law means that your husband or wife has had sexual intercourse with someone of the opposite sex. As Civil Partnerships are only available for those of the same sex (at least for now!), adultery therefore does not apply. However, such sexual infidelity could be characterised as Unreasonable Behaviour for the purposes of dissolution.
If you are considering divorce or dissolution there are many factors to consider, including the division of your finances and who will look after any children you have together and how contact with the children may be arranged.
Ending a marriage or civil partnership can be a stressful and emotional process and disputes may arise in even the most amicable divorce. A barrister will be able to advise you on all aspects of your case and to represent you in Court if necessary. If you are thinking of instructing a lawyer to help proceed with your divorce, you may find it helpful to read our advice on how to choose a divorce lawyer.
Our Public Access Barristers have a wide range of experience of divorce law. To get in touch with a member of our team, read our simple step-by-step guide, then contact our clerks who will put you in touch with the barrister best able to accommodate your needs.
By David Reader | Divorce and Finance