Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights (ECHR)

17/07/2018

The UK Supreme Court recently ruled that the Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights (ECHR).

Under Section 1 of the 2004 Act, “A civil partnership is a relationship between two people of the same sex” which is formed when either: (1) they register as civil partners of each other; or (2) they are treated as having formed a civil partnership by virtue of having registered an overseas relationship. However, Rebecca Steinfeld and Charles Keidan challenged the 2004 Act as being incompatible with their rights under Article 14 (the prohibition of discrimination) and Article 8 (the right to respect for private life) of the ECHR on the basis that it precluded them, as a heterosexual couple, from forming a civil partnership together. Ms Steinfeld and Mr Keidan wished to enter in to a civil partnership in circumstances where they had genuine ideological opposition to marriage.

In the course of Ms Steinfeld and Mr Keidan’s appeal, it was highlighted that the Marriage (Same Sex Couples) Act 2013 had extended the definition of marriage in England & Wales so as to give same sex couples a choice as to whether they enter in to a civil partnership or whether they enter in to a marriage. In Scotland, this definition was extended by the Marriage & Civil Partnership (Scotland) Act 2014. The central argument in Ms Steinfeld and Mr Keidan’s case was that they, as a heterosexual couple, should be afforded the same choice i.e. to enter in to either a marriage or a civil partnership, and that not being afforded that choice amounted to discrimination.

In upholding Ms Steinfeld and Mr Keidan’s appeal, the Supreme Court highlighted that the legislature did not seek to justify the difference in treatment between same sex and heterosexual couples when it extended the definition of marriage to include same sex couples but did not extend the definition of civil partnerships to include heterosexual couples. Indeed, the Supreme Court highlighted that, in circumstances where there is an interference with an ECHR right, such as that created by the limited definition of civil partnerships in the 2004 Act, it requires to be justified. In this case, the Supreme Court held that the interference with Ms Steinfeld and Mr Keidan’s Article 8 and 14 rights could not be justified.

Furthermore, the Supreme Court noted that, whilst it is reasonable that the legislature should be allowed time to reflect on what should be done when dealing with an inequality, it was not reasonable for it to be afforded that time in this situation when the inequality was in fact created by the legislature itself when it had extended the definition of marriage to include same sex couples but did not extend the definition of civil partnerships to include heterosexual couples.

The Supreme Court also considered whether the objective of the 2004 Act (its “legitimate aim”) was sufficiently important to justify interfering with the ECHR rights in question. In this case, the Supreme Court held that tolerance of the discrimination whilst the legislature determined how best to remedy it cannot be characterised as a “legitimate aim”. The Supreme Court held that the legislature should have taken steps to eliminate the inequality of treatment immediately when the definition of marriage was extended, either by extending the definition of civil partnerships or abolishing them altogether on the basis that all couples, whether same sex or not, now have the right to marry. Taking time to consider that could never, in the Supreme Court’s view, be a legitimate aim.

The outcome of this case will undoubtedly see an effort made on the part of the legislature to remedy the position in relation to civil partnerships. Whether that be by extending the definition to include heterosexual couples or abolishing them completely remains to be seen. If it is to be the latter, what will that mean for all of those couples who have already entered into civil partnerships? Either way, there are likely to be far-reaching consequences.

In the event you have any questions in relation to civil partnerships, marriage or any other aspect of Family Law, please contact a member of our Family Law Team.