The Supreme Court has recently ruled that the UK Government’s ban on civil partnerships for different-sex couples in England and Wales is discriminatory and in breach of human rights.

Case Background

The case had been brought by a couple who are in a heterosexual relationship that they want to formalise. They have ideological objections to the institution of marriage and instead sought the right to enter into a civil partnership.

However, when the Government introduced the Civil Partnership Act 2004 (CPA), it only applied to same-sex couples. Several years later, the Government gave same-sex couples the right to marry under the Marriage (Same Sex couples) Act 2013 (MSSCA) but chose not to repeal the CPA, which meant that same-sex couples have the choice of two options to formalise their relationship – marriage or civil partnership. However, different-sex couples only have the option of marriage.

Rebecca Steinfeld and Charles Keidan therefore sought a judicial review of the Government’s continuing decision not to make changes to the CPA to allow different-sex couples to enter into civil partnerships. Their claim made its way to the Supreme Court, after being dismissed by the High Court and the Court of Appeal.

The case hinged on whether the couple’s rights under the European Convention on Human Rights (ECHR), and in particular their rights under article 14 (the prohibition on discrimination) together with article 8 (the right to respect for private life), were being breached by the ban on them entering into a civil partnership.

Supreme Court Judgment

In its judgment, the Supreme Court noted that the Government has accepted that there was an inequality of treatment between same-sex and heterosexual couples, and that this inequality engages article 14 read in conjunction with article 8 of the ECHR. The Government also accepts that the inequality therefore requires justification from the date it first began (ie. on the coming into force of the MSSCA).

The principal issue before the Supreme Court was therefore whether justification of the inequality includes consideration of the period of time during which the respondent could investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence of the discrimination.

It has now made a declaration that sections 1 and 3 of the CPA, to the extent that they preclude a different-sex couple from entering into a civil partnership, are incompatible with article 14 taken in conjunction with article 8 of the ECHR.

It is worth highlighting that a declaration of incompatibility does not oblige the Government or Parliament to take any action. However, the judgment is likely to add to growing pressure on the Government to change the current law.

Reaction to the Ruling

The Supreme Court’s judgment has been welcomed by organisations with an interest in family law.

Chris Sherwood, Chief Executive at relationship support charity, Relate said:

“The law has failed to keep up with societal need when it comes to our rights around relationships. The Supreme Court’s ruling on civil partnerships is a step in the right direction and will put pressure on the government to change the law but what we need is a review of our whole legal system.

“It’s astonishing that in 2018 we still have a fault-based divorce system which encourages inter-parental conflict and that cohabiting couples have so few legal rights. The way we structure our relationships is changing and if we want our legal system to be truly fair and equal these issues also need to be addressed.”

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