We are all utterly sick of Brexit taking the headline spot on the news, right? I’m sure our Prime Minister is. Which is why I think she is looking for other news stories wherever she can just now.
So this caught my eye today:
Civil partnerships: Law to change for mixed-sex couples
All couples in England and Wales will be able to choose to have a civil partnership rather than get married, Theresa May has announced.
The proposed change in law appears to come on the back of a Supreme Court challenge brought by Rebecca Steinfeld and Charles Keidan who said they wanted a ‘civil partnership’ rather than to get married. They said it doesn’t fit with their modern view and they want a civil recognition of their relationship, not a marriage. The court agreed with them to some extent, saying that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights because it only provided for same sex couples.
That is largely because the reason the Civil Partnership Act 2004 was introduced was because same sex couples had no way of formalising their relationships like married couples could. What the Civil Partnership Act 2004 brought was ‘marriage’ in all but name to same sex couples, together with the rights that go with it.
In 2013 we got The Marriage Act, which addressed an inequality and meant that same sex couples could marry, making the Civil Partnership Act 2004 more or less redundant from a legal standpoint. Or so we thought. However, the 2004 Act seems to have been latched on to as a way for heterosexual couples to formalise their relationships without getting married.
I believe it is a misunderstanding around the name. If a Civil Partnership confers broadly all the rights and responsibilities of marriage, what realistic difference is there to the commitment being made by the couple concerned? Certainly very little legally.
If a Civil Partnership confers broadly all the rights and responsibilities of marriage, what realistic difference is there to the commitment being made by the couple concerned?
I think people are fixed on the word ‘civil’ and see it frees them from religious ceremonies and old fashioned ideas. But that has been the case for a long time now, with the growing popularity of registry offices and other places where it is possible to be married without the religious overhang, if that is your choosing. What is more, those ceremonies very much focus on the contractual basis of the relationship.
Our legislation really is getting into a bit of a mess and real reform is what is needed
But whether a Marriage or a Civil Partnership, this does still involve a contractual element which must be actively entered in to. It does not automatically afford the protection cohabiting couples need. Regardless of Mrs May's plans, that means the estimated 3.3 million couples who chose to cohabit rather than enter into an 'agreement', will not have the legal rights married couples currently enjoy, regardless of factors such as the length of their relationship or how many children they have together. That is an area which needs addressing.
Ultimately, though Theresa May is yet to announce what rights will follow a Civil Partnership for heterosexual couples (if different), our legislation really is getting into a bit of a mess and real reform is what is needed - not playing with words.
For better or for worse? Time will tell.
Sarah Smith is a leading family lawyer and mediator. She is the only solicitor ranked as an “Eminent Practitioner” in industry guide Chambers and Partners and has been supporting separating couples for over 20 years.