You may have seen in the High Court recently, a couple challenging the Registrars at Chelsea Registry Office and the government, in being refused permission to register their notice of intending to form a civil partnership. The permission to proceed with their challenge, granted by the High Court indicates, that there is an argument to be had, and it looks for some interesting reading.
In order to understand the issues, we have to remember how the civil partnership legislation came into being. Until 2004, gay couples did not have any legal recognition of their relationship. Back in 2004, the idea of their marriage was probably a speck on the imagination rather than a real possibility. Therefore, the Civil Partnership Act 2004 was introduced, which applied only to same-sex couples. Those couples could not get married but, at least, they had legal recognition of the status of their relationship. Of course, more recently, gay couples are now able to marry, putting gay couples on the same basis as heterosexual couples. However, Charles Keenan and Rebecca Stenfield of London, decided that rather than get married, they wanted to have their union recognised under the civil partnership regime. That request was refused because Parliament stated that Civil Partnerships could only apply to same-sex couples.
What are the differences between a union under marriage and civil partnership?
Both regimes recognise the union and give legal status to each person. That is extremely important when you have issues such as pension, State Pensions and pensions for widows, widowers and surviving civil partners. Basically, the law on this is the same in a marriage and under a civil partnership.
With regard to divorce, the civil partnership gives gay couples similar rights, with the exception that they cannot have a finding of divorce based on adultery. However, in questions of financial matters, the Court has, and will exercise, the same discretion. It, therefore, gives parties protection irrespective of who contributed to the family financial pot.
Basically, in determining who gets what financially the Court has discretion in both civil partnership and marriage and there is nothing of significance that differentiates civil partnerships from marriage. The difference seems to be more in the presentation, historical connotations and archaic concepts that have come along with marriage which is a far older institution.
If we look at how a partnership or marriage is formed, marriages are solemnised by saying a prescribed form of words, whereas civil partnerships are registered by the signing of a document with no words required to be spoken.
The Marriage Certificate includes only the name of the father’s of the parties, whereas Civil Partnership Certificates include the names of both parents of the parties. It appears that those formalities are part of the reason why Rebecca and Charles, feel that the civil partnership regime is more reflective of their relationship and how they wish to conduct it. They state that they want to be legally recognised partners but not have the hassle, tradition and ceremony of a marriage. They wanted protection under the law to recognise their legal commitments, but they do not want to choose marriage to effect this. They see themselves as equal partners and wish to have a social institution that expresses this. They acknowledge that in terms of legal rights and responsibilities the civil partnership is almost identical to marriage, but say their objection to marriage is based on its history. They see marriage as having developed from a union in which women were exploited, with the remains of sexist trappings to weddings, such as the example of only the father signing on the registry form.
What about other countries?
Civil partnerships exist in other jurisdictions and run alongside marriage, such as in the Netherlands. However, there appears to be no wish for our Parliament to make such changes here by allowing the Civil Partnership Act to apply to heterosexual couples. What may be at the heart of this, is David Cameron’s view that such would ‘weaken the institution of marriage’, as stated by the self-proclaimed ‘marriage man’.
On the other side, there is a strong argument that by restricting the Civil Partnership Act to same-sex couples, it undermines the Equality Act, which prevents public institutions discriminating on grounds of sex. Some MP’s have canvassed for the removal of the words ‘same-sex’, from the Civil Partnership Act which would be an easy way of expanding it to heterosexual couples.
What is your view?
This writer believes that the important thing here is the law being flexible enough to support any couple that commits to a long-term relationship. The issue is not the label, but the fact that a couple commits to a long-term stable relationship which will be used as a vehicle to support a family. In such circumstances, it seems almost non-sensible to split hairs if a couple chooses to reflect that relationship in a modern way, and finds that the wording and ethos behind the Civil Partnership Act is more appropriate for them.
On another level, it raises a nonsensical distinction between heterosexual and gay couples. This can probably be explained by the fact that the Civil Partnership Act was introduced to give gay couples some legal recognition at a time when they had none. It has since been superseded by the right for gay couples to marry.
The argument that the institution of marriage is undermined is a weak attempt to justify not expanding the Civil Partnership Act. The writer hopes that the challenge will be successful, and properly so. The important thing is to support the family, in its many guises, and accept that legal promises in 2015 may be entirely different from those envisaged in 1753 when the Marriage Act was first introduced.