By Toby Netting, Head of Family Law Sheffield
If it looks like a duck, quacks like a duck and swims like a duck, it’s obviously a duck. When something is so obvious, you may wonder why you have to ask the question in the first place. The Supreme Court have effectively concluded the same when handing down their judgment on the appeal of Rebecca Steinfeld and Charles Keidan against the government’s decision not to extend the ability to enter into civil partnerships to non-same-sex couples.
The question the court had to consider was if the bar on different-sex couples entering into civil partnerships breached the appellants’ rights under articles 14 and 8 of the European Convention on Human Rights (ECHR). Article 14 is the prohibition on discrimination, article 8 the right to respect for family life. In simple terms, the question is: Is the legislation that prevents me from entering in to a civil partnership because I am heterosexual discriminating against me because it prevents me from choosing an option open to someone who is for example homosexual?
The answer when considered by the High Court was no, the Court of Appeal also said no when they looked at it, but the Supreme Court has said yes, of course it is.
The government, at the point of the appeal, had conceded that there was an inequality of treatment between same-sex and heterosexual couples. They indicated that this was justified as they needed a period of time to consider the question and to decide how to address the imbalance. The Supreme Court had to decide whether justification for the inequality included consideration of the period of time during which the government could investigate how best to eliminate the inequality or not.
What the Supreme Court judges pointed out in their judgment was:
- When Parliament enacted the Marriage (Same Sex Couples) Act 2013 (MSSCA), making the marriage of same sex couples lawful, it consciously decided not to abolish same-sex civil partnerships or to extend them to different-sex couples.
- It was recognised by Parliament at the time of enactment of MSSCA that not acting on the civil partnerships would bring about an inequality of treatment based upon sexual orientation.
- That where there is unequal treatment on the grounds of sexual orientation any margin of discretion on the legislature taking steps to rectify it is narrow.
- Although it is recognised that the legislature should be allowed time to reflect where the inequality has come about over time due to a change is social norms and attitudes, in this case it was Parliament’s own legislation that created the inequality and to then ask for several years to look at it and decide how best to cure the problem they had created, was not acceptable.
- The government should have either abolished civil partnerships when they brought in same-sex marriage or extended them to different-sex couples.
- There appears to be no specified wider community interests in denying different-sex couples the ability to enter in to civil partnership, but in contrast, the consequences of denying them that right could be far reaching.
- There is no end point in sight for this current inequality to be rectified.
So what have the Supreme Court actually done? They have made a declaration that sections 1 and 3 of the Civil Partnership Act 2004 are incompatible with article 14 taken in conjunction with article 8 of the ECHR to the extent that they prevent different-sex couples, like Rebecca Steinfeld and Charles Keidan, from entering in to a civil partnership. It was obvious really, and so no real surprise.
What does it mean for the future?
Potentially nothing. A declaration of this nature does not oblige the government or Parliament to do anything. All that it is, is the court saying to Parliament that this particular piece of legislation is incompatible with a Convention right and it is over to you to decide what to do with it. Parliament can decide to do nothing.
Will Parliament decide to do nothing? A cynic may say that probably nothing will change, pointing to the lack of political will to consider cohabitation rights or changes to remove fault from divorce proceedings. There is also the small issue of Brexit that is monopolising so much Parliamentary time and resource. We will have to see if the Supreme Court’s declaration of the blatantly obvious has any tangible effect for couples like this in the future, or if the government will just continue to duck the issue.
Toby Netting is a Family Law Solicitor based in Sheffield and offers specialist advice to separating couples on the practical and legal issues around relationship breakdown. If you would like to speak to Toby or another member of the team about a family law issue, please call 0800 138 0458 or send us a message using the contact form below.