Heterosexual civil partnerships, legal hegemony and the future of relationship status - Guest Post by Scott Halliday

Scott Halliday (LL.B PGDip LL.M), Family Law Solicitor at Irwin Mitchell Private Wealth, has written a thought-provoking guest blog post on the current legal situation regarding relationship recognition in the UK. The key questions that Scott considers are whether different-sex couples should be permitted to enter into a "civil partnership" - a legal form of relationship recognition currently only available in the UK to same-sex couples - and, if not, whether this constitutes discrimination in violation of the Convention. For readers outside of the UK, it should be remembered that civil partnership is available to same-sex couples across the UK, but marriage is only available to same-sex couples in England and Wales, and Scotland (not Northern Ireland). Thanks to Scott for this interesting post. 

“A practitioner’s view: heterosexual civil partnerships, legal hegemony and the future of relationship status.”

At present heterosexual and same-sex couples are treated differently at law when seeking to formalise their relationships. I recently wrote in the Family Law Journal (FLJ 48(5) (2018) 608) that the current situation represented “a unique reversal of traditional heterosexual legal hegemony”. The point I was emphasising was that a heterosexual couple (in Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81, [2017] 2 FLR 692) were drawing on the European Convention on Human Rights (ECHR), through the domestically incorporated Human Rights Act (HRA), to judicially review the current ban on heterosexual couples entering into a civil partnership. The above represents an important moment of legal history, with a heterosexual couple claiming that they have been unlawfully discriminated against vis-√†-vis same-sex couples.  
At present same-sex couples can enter into a marriage per se, by virtue of the Marriage (Same Sex Couples) Act 2013 (‘MSSCA’). Alternatively, they can enter into a Civil Partnership under the Civil Partnership Act (2004) (‘CPA’). The same is not true for heterosexual couples who cannot enter into a Civil Partnership as the CPA is solely for same-sex couples seeking to formalise their relationship at law.  
In the above piece for the Family Law Journal I urged the UK Supreme Court to recognise the discrimination faced by heterosexual couples as a human rights breach in need of rectification when it heard Steinfeld. I argued that the discriminatory difference in treatment was unjust and the Court should issue a declaration of incompatibility under Section 4 HRA to indicate to government that the law was in need of reform. This, after the Court of Appeal identified discrimination but said that this was justified. The discrimination was said to be justified as the government wanted to “wait and evaluate” the situation. ([2017] EWCA Civ 81, at 158).
The government’s policy of “wait and evaluate” was grounded in part on the future uptake of same-sex civil partnerships in an era of same-sex marriage. The argument posited was that same-sex couples were opting for marriage as opposed to civil partnerships and as such the institution may become increasingly obsolete as numbers of same-sex couples entering into civil partnerships dwindled. It was suggested that further statistical collation and analysis would trigger a review of the current legal framework. It is important to note that such a review would not in and of itself produce law reform. Even if one was sympathetic to this viewpoint, a government initiated review of the law could conclude that no reform was required.

It is worth flagging at this stage, simultaneous to the above litigation, is Tim Loughton MP’s Private Members Bill , the Civil Partnerships, Marriages and Deaths (Registration Etc) Bill (‘the Bill’) which calls for a systematic and far reaching report to determine how to bring about equality in access to civil partnership law. This Bill is currently being reviewed by the House of Lords after reading in the House of Commons.

I do not want to re-hash the arguments I wrote about in the Family Law Journal, but the government’s stance in Steinfeld and leaked documents in and around the time of the hearing in the UK Supreme Court is very concerning. The judgement, expected in September, will very unlikely create heterosexual civil partnerships. At best the Court will issue a declaration of incompatibility. In the context of the case this is what success looks like in my view, as a declaration would symbolise that the current legal framework is unlawful. There is a need for positive law reform to bring about equality.

The above may well be right, but what is increasingly problematic is the government’s stance that civil partnerships may be obsolete now and/or will be shortly with further uptake of same-sex marriage. It may be that there are fewer civil partnerships, but equivalent civil marriage, exists across in mainland Europe. Those couples with civil partnerships will be deeply offended and upset, I expect, if law reform dissolved the institution.

There is also a broader issue at play here around relationship recognition and the ease in which the government has posited the abolition of the institution. It cannot be right that the heterosexual majority devise an institution, akin but very different to marriage, solely for same-sex couples and then abolish this within 15 years of its creation. The rationale for the abolition being words to the effect of ‘we now accept same-sex marriage, your relationships are akin to ours [heterosexuals] so you can now be part of our heterosexual institution.’

I fully support the principle of equality of treatment. I fully support heterosexual civil partnerships. I do not support the abolition on an institution or any rhetoric to this extent. This is simply not an option and cannot be allowed to be legitimised.

The beauty of the existing situation is that if civil partnerships were opened up to heterosexual couples it would represent a unique moment. It would be less, ‘we now accept heterosexual civil partnerships, your relationships are akin to ours [same-sex couples] so you can now be part of our same-sex institution’. More, ‘this is an issue of equality and discrimination, your involvement [heterosexual couples] in no way devalues an institution devised for us [same-sex couples], welcome.’

Scott Halliday is a specialist family law solicitor at Irwin Mitchell Private Wealth. Before practice he studied law, graduating with First-Class Honours at the University of York. He was the 2012 Seoul National University Scholar. In 2014 he completed an LL.M in International Human Rights Law & Practice. Scott advises individual on all aspects of family law, typically divorce, finances, children law and family creation. He has a niche interest in LGBT family law issues.