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Civil partnerships for all (or for no one)?
At the end of June 2018 the Supreme Court handed down a judgment saying that heterosexual couples should have the same right as same sex couples to enter into civil partnerships.
Since December 2005 same sex couples have had the right to enter into civil partnerships. In March 2014 they gained the right to enter into same sex marriages. From a legal perspective civil partnerships are no different to marriage.
Civil Partnership Act
The Civil Partnership Act was enacted to allow same sex couples to formalise their relationship, but at the time the government was not willing to take the step to call it marriage, even though it was marriage in all but name. It wasn’t felt necessary to open civil partnerships to heterosexual couples as they had the option of marriage if they wanted to formalise their relationship. That argument was swept away once same sex couples could marry, but civil partnerships remained on the statute books.
The Supreme Court
The Supreme Court by declaring that the Civil Partnership Act provisions not allowing a civil partnership between heterosexual partners breached their human rights, means that a change to the Act may follow. However, there is no certainty that a law change will come in allowing heterosexual partners to enter into civil partnerships and the more likely outcome is that civil partnerships will be removed as an option for all couples now that marriage is open to all.
Is this potentially a great step forward bringing the law into alignment with modern societal norms, or is it simply a judgment that is good in principle, but will have little relevance to most people in settled relationships?
From a family lawyer’s perspective, the most pressing change that is needed and that will impact on far more families, is a change to the laws affecting unmarried cohabitees and more particularly their financial rights if their relationship breaks down.
Whilst some argue that people should be left to decide for themselves and that if they have decided not to marry then they shouldn’t be held to the same financial consequences as a married couple do on the end of that relationship, there is a great deal of ignorance as to the lack of rights of unmarried cohabitees on relationship breakdown. Many people still believe that they have rights as a “common law spouse” when there is no such legal concept.
I feel that although legal protection for co-habitants may not be appropriate where they are fully aware of the possible outcome and carry on with this knowledge, there are still so many people that are unaware of the vulnerable position they could be left in when a long relationship, especially one that produces children, comes to an end, the emphasis needs to be on making sure that people know their legal position.
Louise is a partner in our Family Team and a solicitor specialising in all aspects of family law, with a particular emphasis on complex financial matters, including those involving business assets and those with an international element.
She is dual qualified in England and in South Africa. Although she now practices solely in England, she deals with many cases which have a South African connection. She has been called upon to assist as an expert witness on English divorce law in the High Court of South Africa.