This article by Jennifer Allen looks at the extent to which either pre or post-nuptial agreements will be taken into account by the Court and also looks forward to the impact Brexit may have on this area of law.
Civil Partnerships for all?
- AuthorMarcus Crawley
On 27th June 2018, the Supreme Court handed down Judgment in respect of the appeal of a different sex couple who wish to enter into a Civil Partnership, rather than marry.
Civil Partnerships were introduced in 2004 to allow same sex couples to have their relationships recognised and registered at a point in time when government and Parliament did not consider it appropriate to extend the institution of marriage to same sex couples. Civil Partnerships were a recognition that access to the responsibilities and rights akin to those which arise on marriage should be available to same sex couples who wished to commit to each other in the way that married couples do.
In 2013, the government enacted the Marriage (Same Sex Couples) Act, which opened up the institution of marriage to same sex couples.
When the Marriage (Same Sex Couples) Act was enacted, the government did not repeal the Civil Partnership Act 2004. This means that same sex couples can choose to enter into a Civil Partnership or marry. Different sex couples do not have this same choice.
Rebecca Steinfield and Charles Keidan (the appellants in the recent case before the Supreme Court) applied for a judicial review of the Civil Partnership Act in December 2013, stating that they have a “deep rooted and genuine ideological objection to marriage” because, as an institution, it “has been historically heteronormative and patriarchal”.
The Government had previously acknowledged that by not determining the future of the Civil Partnership Act following the introduction of same sex marriage, there is an inequality of treatment between same sex partners and those of different sexes and that this inequality was based on the difference of sexual orientation of the two groups. The Government justified the continued difference of treatment by saying that they would wait and see what happened in respect of the demand for Civil Partnerships. Depending on whether the uptake of Civil Partnerships fell dramatically after the introduction of marriage for same sex couples, they would decide whether to either abolish Civil Partnerships completely, phase them out or extend them to different sex couples.
In the recent Supreme Court decision, the Judges ruled that the decision to carry out further investigation as to the demand for Civil Partnerships was not a sufficient justification for the inequality between same sex and different sex partners to continue. As such, the Supreme Court have made a declaration of incompatibility in respect of Sections 1 and 3 of the Civil Partnership Act 2004, to the extent that they preclude a different sex couple from entering into a Civil Partnership.
At first glance, many of the recent reports in respect of the case may lead people to believe that different sex couples may now enter into a Civil Partnership. However, that is not yet the case. The Courts cannot change statute – that is the job of Parliament. A declaration of incompatibility does not oblige the government or Parliament to actually do anything. Whilst a spokesperson from the Equalities Office has said that “The Government is very aware of its legal obligations, and we will obviously be considering this judgment of the Supreme Court with great care”, it may still be some time before a decision as to the future of Civil Partnerships is made.
Irrespective of whether you are in a same sex or a different sex relationship, if you are considering entering into a Civil Partnership or intending to marry, it is important to consider what rights and obligations arise from doing so, particularly in respect of what may happen in the event that the relationship were to come to an end in the future. Irrespective of whether it is a Civil Partnership or a marriage that is coming to an end, the Courts consider the same factors when dealing with the financial claims that arise at the end of the relationship. If you wish to discuss what measures can be taken to protect your assets in the event of a divorce/dissolution of civil partnership (such as entering into a pre-nuptial agreement), or your marriage/Civil Partnership is coming to an end, please contact Marcus Crawley or a member of the family team at Hughes Paddison for further advice.