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A moment of Clarity

Civil partnerships: Lack of provision for heterosexual couples

It was impossible to ignore the commotion over the summer around the now landmark Supreme Court case brought by Charles Keidan and Rebecca Steinfeld to challenge the lack of provision for heterosexual couples to enter into civil partnerships. After a drawn-out legal process the Supreme Court sided with the applicants – but months down the line, where are we now?

At present only same-sex couples can enter into a civil partnership as a way of having their relationship recognised formally in law. The position was challenged under human rights law by a heterosexual couple in a case over the summer (Steinfeld and Keidan [2018] UKSC 32.)

Irwin Mitchell Private Wealth’s London office recently hosted an expert panel debate on these issues after the UK Supreme Court found in Steinfeld and Keidan that the difference in treatment between heterosexual and same-sex couples was discriminatory (Article 14 ECHR) when read in conjunction with the right to private and family life (Article 8 ECHR). The panel included Charles Keidan, one-half of the applicant couple who took the issue to the UK Supreme Court, Karon Monaghan QC of Matrix Chambers who was counsel for the applicants in the UK Supreme Court, Dr Andrew Hayward of Durham University, expert in family law and comparative relationship formation and Scott Halliday, solicitor and modern families expert at Irwin Mitchell Private Wealth.  

The debate raised a number of interesting and provocative issues. Andrew Hayward gave a comprehensive summary of the key comparative issues and drew on law reform across Europe as a way of opening up the debate. When Charles Keidan was asked to reflect on his personal views about the case it became apparent that neither him nor his partner, Rebecca Steinfeld had truly appreciated the level of comparative scholarship around this issue before the case was launched. Charles Keidan did however stress from the outset that the motivation for taking the case to the UK Supreme Court was largely because of the lack of an alternative to marriage for heterosexual couples who did not wish to be married. The point was made throughout the night that a civil partnership was far removed from the patriarchal history of marriage and could offer a substantial minority of people a different and much valued alternative. 

Charles also made the point that as the case evolved, so did Charles and Rebecca’s lives as they welcomed two children to the world. The need for a civil partnership to serve heterosexual couples became even greater and took on another level of importance for them, as their children would now suffer legally because their parents were unmarried. This opened up a further debate on the relationship between cohabitation law reform and civil partnerships. The panel all agreed that these issues were different, but clearly there was a link. Charles Keidan made the point, based on questions from the audience, that he hoped that civil partnership law reform would not stifle the issue of much needed cohabitation law reform. Scott Halliday and Dr Andrew Hayward agreed, but there was a level of pessimism as to whether or not government would push cohabitation law reform into the long grass. 

There was a lively exchange between Karon Monaghan QC and Scott Halliday when the discussion moved to comparing rights and institutions available to same-sex couples vis-à-vis heterosexual couples. Scott Halliday made the point that this was a unique moment of legal history with heterosexual couples drawing on human rights law, as the majority, to access rights available to the minority, same-sex couples. At which point all panellists agreed and Charles Keidan eloquently reflected on heterosexual privilege, but stressed that this was a matter of genuine equality and freedom from discrimination. He was vehemently supportive of marriage for all people who wanted access, heterosexual or same-sex. Karon Monaghan QC concluded matters with reference to the fact that the human rights breach was made by government who had created the current imbalance. Karon Monaghan QC argued that this was an important face to the case as government cannot create a rights imbalance and not remedy it.

All in all, the event brought to light a personable angle to a high-profile court case that both attracted widespread media attention as well as its own criticism. While the fight for equality continues, it takes the determination and patience of couples like Charles and Rebecca to challenge these existing frameworks. The Private Members’ Bill launched by Tim Loughton MP to introduce heterosexual civil partnerships remains at reading stage in parliament.

Published: 11 December 2019

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