Commentary on: R (on the application of Steinfeld and Keiden) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary)  UKSC 32.
Today, the Supreme Court released its Steinfeld decision, cited as  UKSC 32.
Mike Horton, barrister at Coram Chambers, shares his commentary on the result of this challenge to the law on civil partnerships and what it could mean moving forward. Read his piece below.
So, the Steinfeld challenge to the law on civil partnerships has been successful in the Supreme Court (https://www.supremecourt.uk/cases/uksc-2017-0060.html). Does this mean they will succeed in their quest for #equalcivilpartnerships, the idea that civil partnerships should be open not only to same-sex couples, but different sex couples too? Maybe not. And, I hope not. Human rights challenges are a bad way to make social policy.
Civil partnership is functionally identical to marriage. For all practical purposes, civil partnership has the same legal consequences as same-sex marriage. When it was introduced in 2005, it allowed same sex couples to enter into a relationship that was marriage in all but name, at a time when Parliament and society were not quite ready for same sex marriage. When the coalition government unexpectedly announced that it was to legislate to introduce same sex marriage, civil partnership became an oddity. There was lengthy consideration and consultation as to its future. Should it be opened up to different sex couples? Should all civil partnerships be automatically converted to same sex marriages? Or should civil partnerships be closed to new entrants from a particular date?
The government decided to make no decision, but wait and see how civil partnerships fared once same sex couples had the choice of either marrying or entering into a civil partnership. The Supreme Court decided that this did not justify the discrimination between same sex couples, who had that choice, and different sex couples, who could only marry.
But allowing different sex couples to enter into civil partnerships would be a bad thing. So many of those advocating #equalcivilpartnerships state that they do not want to make the same commitment as they would if they were getting married. They will be in for a shock if they are allowed to become civil partners, only to be told on the dissolution of their partnership that the legal consequences of civil partnership are the same as marriage, and that their finances will be divided just as if they had got married.
We only need one institution that has the legal consequences of marriage – marriage! Marriage is an evolving institution. Where once the husband had significant power over the property and person of his wife, now marriage is a partnership of equals, and open to both different sex couples and same sex couples. Civil partnership is a redundant institution. What is needed is not another legal concept that is functionally identical to marriage (albeit called something else), but a different legal concept with different legal consequences.
This issue is linked to the thorny issue of cohabitation law reform. The Law Commission has recommended that family courts should have the power to adjust the property rights of unmarried partners on the breakdown of their relationship. But successive governments have shied away from this reform. In addition, the proposals are outdated and take no account of the growing recognition of autonomy in family law – they do not allow adults, who unlike spouses have not made any legal or public commitment to each other, to opt out of the scheme that would otherwise be imposed on them. Critics say ‘opt-in’ systems do not help the people who do not realise that they are not as good as married because they are ‘common law husband and wife’. But the introduction of an opt-in system, to a fanfare of publicity, would be an opportunity to educate the public and allow couples to make their own choices about their future. An opt-in system, like the French pacte civile, would allow for some public and legal recognition of the relationship (eg rights on intestacy, next of kin) whilst being easily ended with no messy ‘divorce’.
Extending civil partnerships to different sex couples is unnecessary. It will probably lead to even more confusion in the public at large about the nature of living together and getting married. And it attacks the wrong target. We do not need a choice of labels for marriage. Couples need to be able to make a real choice, a choice of substance, about how they live their lives and the legal consequences of living together.
27 June 2018
(The views expressed are those of the author and do not necessarily reflect the views of any other members of chambers).