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11 October 2018

Civil partnerships for opposite-sex couples – what will change?

Many people will have welcomed the Government’s decision to introduce legislation permitting different (or mixed) sex couples to enter into civil partnership agreements, even though the precise extent of the proposed legislation is not yet known. After all, as a matter of human rights, why should people of the opposite sex be excluded from entering into a civil partnership agreement when same sex couples can do so?

The Government’s decision follows on from the Supreme Court decision in the case brought by Rebecca Steinfeld and Charles Keidan. The issue in that case had been whether the bar on different-sex couples entering into civil partnerships breached the appellant’s rights under article 14 – (the prohibition on discrimination) together with article 8 (the right to respect for family life) of the European Convention on Human Rights (ECHR). The Supreme Court unanimously decided in June that sections 1 and 3 of the Civil Partnership Act 2004 (to the extent that they precluded a different sex couple from entering into a civil partnership) were incompatible with article 14 of ECHR taken in conjunction with article 8.

This well publicised decision really left the Government with no alternative but to seek to address the issue. It could no longer argue that further research was needed into societal attitudes on the subject.

However, various questions do arise not least:

  • Will people enter into such a partnership without fully appreciating the consequences of doing so? There may be many thousands of couples who have decided not to marry for whom a civil partnership seems an attractive option. In the case of Rebecca Steinfeld and Charles Keidan it was reported that they had genuine ideological objections to marriage based upon what they considered to be its historical patriarchal nature. They wished to enter into a civil partnership, which they considered reflected their values and gave due consideration to the equal nature of their relationship. Many others will doubtless share these sentiments but it is important to bear in mind that in legal terms a civil partnership is no less a serious proposition than marriage. A civil partnership is not a ‘half-way house’. Such a partnership only ends on death, dissolution or annulment. It has serious financial consequences. At present, a dissolution order will only be made if the partnership has broken down irretrievably and the grounds for demonstrating that are similar to divorce proceedings. On a dissolution the court has the ability to make a range of orders for periodical payments, lump sum orders, property adjustments orders and pension sharing orders. Again, there is great similarity between the orders made on the ending of a civil partnership and the type of orders made on divorce. The statute states on its face that the financial orders that can be made ‘correspond’ to the types of orders that can be made on divorce. This gives the clearest possible indication that the purpose of the civil partnership regime is to extend all the rights and responsibilities invoked by a marriage between opposite sex couples as regards financial remedies.
  • Will there be a growth in pre-civil partnership agreements once wealthier individuals do appreciate the consequences of entering into a civil partnership agreement? This firm has, in recent years, prepared a number of pre-civil partnership (and pre-same sex marriage) agreements. Such agreements can be seen as a sensible step taken by mature adults exercising individual autonomy to seek to self-regulate their financial affairs in the event of separation. However, in many instances the driving force behind such agreements (and pre-nuptial agreements) is a desire on the part of the wealthier party, or their family, to limit the potential financial claims of the less well-off party. We have seen a significant growth in the use of such pre-nuptial agreements in recent years. It is therefore envisaged that, if more people enter into civil partnerships, there will almost certainly be an increased interest in pre-civil partnership agreements.
  • Will some people be put off from entering into a partnership because of their consequences? There are undoubtedly people who do not wish to commit to marriage. They may well be in stable relationships and there may be children of those relationships but nonetheless they deliberately decide that they do not wish to take on the financial and other obligations which can flow from marriage. For the reasons briefly explored above, for those individuals similar considerations will apply to civil partnerships.
  • Will it actually provide cohabitants with greater protection than they already have? The answer is yes, provided couples opt into a civil partnership but many may continue to remain in a relationship which is neither a marriage nor a civil partnership. For those individuals it remains the case that they need to fully understand the limited financial protections afforded to them. Until such time as legislation is introduced to specifically provide cohabitants with the ability to make financial applications to the court, many of them will potentially remain vulnerable.

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