On Wednesday, judgment was handed down from the Supreme Court in the much-anticipated case of R v Secretary of State [2018].

This case is concerned with the Civil Partnership Act 2004 (CPA) and specifically, whether it breaches the parties’ rights under Articles 14 (the prohibition of discrimination) and 8 (the right to respect for private and family life) of the European Convention for the Protection of Human Rights (ECHR).

A civil partnership is a relationship between two people of the same sex and the CPA states that two people are not eligible to register as civil partners of each other if they are not of the same sex.

The parties are Rebecca Steinfeld and Charles Keidan, a heterosexual couple who commenced their relationship in 2010 and have since had two children together. They remain in a committed relationship and are of the view, as with many cohabiting couples in the UK, that marriage is not for them.

There are currently 3.3 million cohabiting couples in the UK and for whatever reason, be it personal, ideological, sociological or simply cost (the current average cost of a wedding in the UK being £27,161), the concept of marriage is not a ‘one size fits all’ option.

The CPA gave same sex couples the same rights, benefits and assurances as married couples and since 2014, it is lawful for same sex couples to also enter in to a marriage following implementation of the Marriage (Same Sex Couples) Act 2013 (MSSCA) thus providing same sex couples the choice of formalising their relationship under either act. Whilst on the contrary, heterosexual couples only presently having the option of marriage.

It is for this reason that Ms Steinfeld and Mr Keiden felt that the current law surrounding civil partnerships was discriminatory. They wished to enter in to a civil partnership which they say would accurately reflect their views and give recognition to the equal nature of their relationship and upbringing of their children.

The parties pursued a judicial review of the current law, in so far as it impeded their human rights, through the courts and having been unsuccessful at both the High Court and the Court of Appeal, the matter was heard before the Supreme Court on 14 and 15 May. The central issue was that when the MSSCA came in to force, the government then had the opportunity to prevent any potential discrimination under the ECHR by either repealing the CPA or extending it to include opposite sex couples. Instead, the government decided that further investigation was needed, and that no decision would be made on the future of civil partnerships until public perception of same sex marriage was clear. The government believed that further research was required to determine whether any amendment or withdrawal of the CPA was necessary.

The government accepted that the implementation of the MSSCA four years ago, brought about an inequality of treatment in favour of same sex couples as a result of their inaction to either amend or repeal the CPA, but maintained that their inaction was justified as a ‘legitimate aim’ and therefore not in breach of the ECHR. The concept of a ‘legitimate aim’ is just one of the four stage criteria required to be satisfied to defend an interference with a qualified Convention right.

The court unanimously agreed and, in its judgment, declared that sections 1 and 3 of the CPA are incompatible with the parties’ human rights under the European Convention. The failure of the government to review the application of the CPA at the time that the MSSCA came in to force means that since 2014, unmarried heterosexual couples like Ms Steinfeld and Mr Keidan have been unable to benefit from the financial protections given to same sex couples under the CPA.

Whilst the judgment does not direct government to change the law, it does put them under pressure to revise the current law not only to rectify the breach of human rights, but its application generally.

To afford everyone the right to enter in to a civil partnership would be a step in the right direction towards the hugely debated issue of cohabitation reform but it may be more likely that the CPA is repealed, and marriage remains the only option for everyone. With the UK’s exit from the European Union at the top of the government’s agenda, this change in the law may not be any time soon…

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Gemma Artus

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