23 February 2017
The Future of Civil Partnerships
To be extended or abolished?
By Lynda Goetz
Now that procreation has been removed from the concept of marriage, and same-sex marriage (although still not formally recognised by the Church) has been put on the statute book, is it time to say goodbye to the civil partnership?
On Tuesday the Court of Appeal ruled against Rebecca Steinfeld and Charles Keidan’s attempt to obtain recognition of heterosexual civil partnerships. Under current legislation only same-sex couples have the right to register a civil partnership, which, once registered, gives the same rights and responsibilities as a marriage. The inequality of the law as it stands seems at first sight to be very odd, and the judges’ decision to go against modern ‘values’ somewhat extraordinary. That is until you look carefully both at recent history and all the implications around the legislation.
It is only fifty years ago in this country that the Sexual Offences Act 1967 exempted from prosecution homosexual acts between two men, both of whom had to have obtained the age of 21. This did not extend to Scotland or Northern Ireland, however. Note also that there was no mention of women, whose same-sex relationships appear to have gone largely unremarked for most of the previous century. The age of consent for homosexual males was reduced to 18 by the Police and Criminal Justice Act 1994, and then brought into line with the heterosexual age of consent (i.e. 16) in 2000. It was not until May 2004, when the Sexual Offences Act 2003 came into force, that sexual acts were viewed by the law without regard to the sex of the participants and all of the previous sex-specific legislation, including the 1967 Act, was replaced. Even then, same-sex relationships were not recognised in law, and the growing call for reform, both here and elsewhere in Europe, led to the PACS (pacte civile de solidarité) in France in 1999 and The Civil Partnership Act here in 2004. The big difference between the two, however, is that in France any couple can become pacsé.
Twenty-one European countries currently recognise some form of civil union, although rather fewer (13) have recognised same-sex marriage. The European Court of Human Rights has made a number of rulings on the issues, including a case in 2013, Vallianatos and Others v Greece where the Court ruled that the Convention was violated by the Greek legislation, which provided for the registration of civil unions for heterosexual couples, but not for same-sex couples. In 2015 Greece extended the right to same-sex couples. The European countries which currently do not allow same-sex marriage appear, on the face of it, to be mainly middle European countries where the influence of the Church may hold more sway.
Same-sex marriage passed into law in England and Wales just over 3 years ago in 2013, and the first same-sex marriages were celebrated on 29th March 2014. Scotland has its own legislation but Northern Ireland has so far not passed any legislation on the subject, although a legal challenge is pending. So, now that same-sex couples can get married (if not yet in Church) do they also need the rights granted by civil partnerships? If they do, then surely it must be right to recognise the distinction between marriage and civil partnership and also allow opposite-sex couples to choose one or the other? That, by any definition, is equality.
The three judges in Tuesday’s Court of Appeal decision decided in a two-to-one verdict to give the Government more time to review the current law, which Justine Greening (the Education Secretary and minister responsible for equalities) has, after consultation and Parliamentary debate, announced they are doing. Steinfeld and Keidan, who reject marriage on the grounds that it is ‘sexist’ and ‘patriarchal’, have said they will take their appeal to the Supreme Court in any event.
How is it then that in other European countries, as we have seen, civil unions are available to all? In Greece the civil union was actually created for heterosexual couples in 2008 and needed to be challenged to be opened up to same-sex couples; and in France, where PACS was introduced to offer some legal status to same-sex couples, as of 2012 94% of PACS were between heterosexual couples. The rights, responsibilities and benefits of civil unions, which have essentially only been around since the 1990s, vary from country to country and in the US from state to state. PACS, for example, is effectively a ‘marriage light’ and carries fewer rights and responsibilities than a marriage. It is a contract stamped and registered by the clerk of the court and can in some areas of the country be followed up with a ceremony at the mairie identical to that of civil marriage. So, what are the differences in this country between marriage and civil partnership apart from subject of the current challenge?
Fundamentally there are no major differences, although one difference, which may perhaps explain Keidan and Steidenfeld’s ideological opposition to marriage on the grounds of the ‘patriarchal baggage’ they claim it carries, is the fact that civil partnership certificates contain the names of both parents of the parties, whereas marriage certificates bear the names of only the fathers of the parties. This is, however, surely something of a trivial point in the overall scheme of things? Another important distinction is that adultery is not recognised in same-sex partners and therefore cannot be used as a ground for dissolving a civil partnership, whereas it is of course grounds for divorce. Civil partners cannot describe themselves as ‘married’. A civil partnership is not the same as a civil marriage. In a civil marriage the ceremony is conducted by a local official, a registrar, and the ceremony cannot have any religious content. Inheritance rights are the same whether you are married or in a civil partnership.
If marriage is now available to all, as a religious or non-religious ceremony, what exactly is the argument for civil partnerships? The Government is apparently waiting to see how extending marriage to same-sex couples impacts on civil partnerships before making a final decision. If civil partnerships are to continue to exist, should they simply be extended to all regardless of gender? Conservative MP Tim Loughton, who recently introduced a Private Members Bill to that effect which has received cross-party support, clearly believes that should be the case. As, I would suggest, do many of us; but it does beg the question as to the point of civil partnerships. They were introduced as a way of allowing same-sex couples the same rights and creating the same responsibilities as marriage. Should they perhaps in future become a way of opting for a lesser commitment than marriage? In order to create a proper distinction between the two, perhaps civil partnerships could fulfil a different role; perhaps as seven or ten-year renewable contracts? If adultery is not a reason for dissolving a civil partnership, those who do not consider being faithful as a prerequisite to their relationship could choose civil partnership over marriage. There are almost certainly a number of other ways in which a clear distinction could be made with both options available to those of all genders.
The other issue the Government will almost certainly have to face is the question of the unfairness of Inheritance Tax. Those questions about aged siblings who may have shared a property for years who will be unable to take advantage of laws that offer concessions to couples, leaving them open to unaffordable taxes on the death of one of them, have not really gone away. A civil union may not be an appropriate vehicle for solving such cases, but if people are waking up to the fact that there is no such thing as Common Law marriage and that in order to safeguard their rights in the event of death or a parting of the ways they need to have some form of legally recognised union in place, what is to stop the demand for some sort of ‘family union’ (and families are of course so ill-defined these days)? Since procreation has been removed from the concept of marriage, the cornerstones of the old edifices have already been loosened… Perhaps it is these wider implications and cascading consequences that have caused the Government to apply a ‘wait and see’ policy to what appears to be a relatively straightforward issue.
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