In 2004 the Government introduced civil partnership for same-sex couples in England and Wales, for the first time enabling them to enter into a formal legal relationship (although the law did not come into effect until December 2005).  Civil partnership gives same-sex couples similar rights to married couples, the primary difference being simply one of terminology. That difference was subsequently ‘rectified’ in 2013 when the Government passed the Marriage (Same Sex Couples) Act, giving same-sex couples the right to marry.

What the Government has not done, however, is give opposite-sex couples the right to enter into a civil partnership. That omission has been challenged in court by one opposite-sex couple in particular, who want to enter a civil partnership rather than get married.

Rebecca Steinfeld and Charles Keidan are a young couple in a committed long-term relationship. They have a daughter, and another child on the way. As Mrs Justice Andrews explained in the High Court: “They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to the institution of marriage, based upon what they consider to be its historically patriarchal nature. They wish, instead, to enter into a civil partnership, a status which they consider reflects their values and gives due recognition to the equality of their relationship. However, they are currently unable to do so.”

Accordingly, Ms Steinfeld and Mr Keidan took the matter to the court. They sought a judicial review of the Government’s decision not to extend civil partnership to opposite-sex couples, and a declaration that the law is incompatible with Article 14 of the European Convention on Human Rights.  The latter prohibits discrimination on the basis of sex (amongst other things), taken in conjunction with Article 8 of the Convention (the right to respect for private and family life).

The case went before the High Court in January 2016. Mrs Justice Andrews found that the law was not incompatible with Article 14. She held that the difference in treatment between same-sex couples and opposite-sex couples did not infringe the right to private life. Opposite-sex couples can achieve exactly the same recognition of their relationship and the same rights, benefits and protections by getting married, as they always could. Accordingly, the application failed.

Ms Steinfeld and Mr Keidan then appealed, to the Court of Appeal. The Court of Appeal agreed that the law is discriminatory, but two of the three judges held that the discrimination was justified because the Government is looking into changing the law, and needed more time to consider the matter.* The appeal was therefore dismissed.

Not prepared to wait for the Government to change the law, the couple sought permission to appeal to the Supreme Court. That permission has now been granted, although a date for the Supreme Court hearing has not yet been fixed.

So what exactly would it mean for cohabiting couples if the Supreme Court finds in their favour? To answer this we need to look a little more deeply at their reasons for preferring civil partnership to marriage, and for wishing to enter into a civil partnership at all, rather than simply continuing to cohabit. Those reasons were perhaps best set out in a statement from a witness supporting their case, who has been in a relationship with her partner for thirty-five years. She stated that she wants to enter a civil partnership to gain the same protection under the law as married or civil partnered couples, adding:

“We have chosen not to get married for thirty-five years on principle. I do consider marriage to be a patriarchal institution and unnecessary for me to feel either committed or secure in my relationship. …I believe that many young cohabitees with children, where the property rights are not as clearly set out as they might be, are being left without the chance of protection at a time when their children are most vulnerable. The law should protect these families in the same way as it would protect families of same sex couples who opt for civil partnerships or indeed of married couples.”

In short, then, some cohabitees do wish to have a legally binding relationship but choose not to marry because they do not like the institution of marriage. Expanding civil partnership to heterosexual couples could provide a way to formalise such relationships, with all the associated legal protections.
In the meantime, there remain a number of myths surrounding the legal rights of cohabitees, including:

1. The myth of the common law marriage: A very high proportion of the population believe that if you cohabit with another person for long enough you will become their ‘common law’ spouse, with the same rights as if you were married, such as the right to seek maintenance or other financial provision when the relationship breaks down. This is simply not true. There is no such thing as a common law marriage, and no length of cohabitation will make you your partner’s ‘spouse’.

2. I will get a share of my partner’s property simply by living there: Afraid not. Many cohabitees live in a property owned by their partner. They do not acquire any interest in the property simply by living there. If they were married or in a civil partnership then, when the marriage or civil partnership is dissolved, they have a right to seek a share of the other party’s property. No such right exists for cohabitees. As a result it is quite possible when cohabitation breaks down for the non-owning party to be left homeless.

3. Having children gives cohabitees further rights: It does not. The rights of cohabitees (or lack of them) do not alter when they have children. It may be possible for the party looking after the children after the relationship breaks down to seek financial provision for the children, but that does not mean that they can seek financial provision for themselves.

4. If the cohabiting couple have children, the father will automatically get parental responsibility for them: No. Whereas if the couple are married the father will automatically acquire parental responsibility, this is not the case if the couple are not married. For unmarried couples the father will only acquire parental responsibility if he is registered on the child’s birth certificate, with the written agreement of the mother, or by getting a court order. Note that civil partners do not automatically acquire parental responsibility, although this would probably change if civil partnership was extended to opposite-sex couples.

5. Cohabitees automatically inherit each other’s assets on death: They do not. If the deceased partner did not make provision for the surviving partner in a will then the rules of intestacy will apply. Whereas the rules of intestacy make provision for married and civil partners, they make no provision for unmarried cohabitees. Many surviving cohabitees therefore suffer great financial hardship because their deceased partner did not leave a valid will making provision for them.

According to the Office for National Statistics, there were some 12.7 million married or civil partner couple families in the UK in 2016.  The second largest family type was the cohabiting couple family (3.3 million).  Surely, it is time for those people to be able to choose a legal status for their relationship which is right for them.  The alternative, it would seem, is to abolish civil partnerships – but what of those people who have entered in to them over the last 12 years and what would that say about a 21st century society that professes to be equal, diverse and progressive?

*The Cohabitation Rights Bill [HL] 2014-15 had its second reading in the House of Lords on 12.12.2014.

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12.09.2017