Excluding Different-Sex Couples from Civil Partnerships Breaches Human Rights

12 July 2018 Written by Family Law Caithness Category: News

The rights of different-sex couples in England and Wales to enter into a civil partnership might have moved a step closer, after the UK’s Supreme Court found that restricting this type of relationship to same-sex couples was discriminatory and in breach of human rights. 

Civil partnerships were introduced in Britain under the Civil Partnership Act 2004 (CPA), as a way for same-sex couples to formalise their relationship. Same-sex couples subsequently were given the right to get married in England and Wales under the Marriage (Same Sex couples) Act 2013 (MSSCA). Following the introduction of this legislation, same-sex couples could choose between a civil partnership or marriage, while different-sex couples only had the option of marriage.

A couple from England who wanted to formalise their relationship but objected to marriage on ideological grounds raised a legal challenge to this position, which eventually made its way to the Supreme Court.

In giving its judgment, the Supreme Court noted that when Parliament enacted the MSSCA, it consciously decided not to abolish same-sex civil partnerships or to extend them to different-sex couples, even though it was recognised at the time that this would bring about an inequality of treatment between same-sex partners and those of different sexes, and that this inequality would be based on the sexual orientation of the two groups.

It decided that further investigations were required, and that no decision would be reached on the future of civil partnerships until societal attitudes to them became clearer after same-sex marriages had taken root. Government consultations since the introduction of the MSSCA have failed to produce a consensus as to how, or if, the legal position relating to civil partnerships should change.

It must be noted however, that although the Supreme Court has declared that the current position breaches the couples’ human rights, this finding doesn’t require the Government to make any change. It does however add to growing pressure for a change in the law.

In Scotland the position is similar to that in England and Wales, in that civil partnerships are currently only available to same-sex couples. Same-sex couples were given the right to marry under the Marriage and Civil Partnership (Scotland) Act 2014, which came into force in December 2014.

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