A civil(ised) end to the decade

The last day of the decade started abruptly for me. I was awoken from my slumbers in a hotel bed in Berlin by a text from a producer at BBC Radio London asking if I’d go on their breakfast show to talk about the advent of civil partnerships for all.

A potted history

The fact that the first civil partnerships for opposite sex couples are being formed from today in England and Wales is down to the perseverance of one couple, Charles Keidan and Rebecca Steinfeld.

Same sex couples have been able to form civil partnerships since December 2005, at a time when marriage wasn’t available to them. However, the introduction of same sex marriage in March 2014 created an anomaly – same sex couples had the option of two types of formalised union, but opposite sex couples only one – marriage.

Charles Keidan and Rebecca Steinfeld took the issue to court, having to go all the way to the highest court in the land, the Supreme Court. In the meantime, government prevaricated over whether to abolish civil partnerships altogether, given that marriage was available to all. However, the Supreme Court concluded that government had had long enough to ponder that issue; and declared that it was in breach of opposite sex couples’ human rights for there to be such inequality of treatment between same sex and opposite sex couples.

https://www.supremecourt.uk/cases/docs/uksc-2017-0060-press-summary.pdf

In October 2018 Theresa May announced that government would change the law. Tim Loughton MP had already introduced a private member’s bill. Regulations were laid before Parliament in October 2019 which amend the eligibility criteria to extend civil partnerships to opposite sex couples in England and Wales but maintain the position on conversion rights so that only same sex couples can convert their civil partnerships to marriage for now, pending public consultation.

The position in Scotland and Northern Ireland

Issues relating to civil status are devolved. In June, the Scottish government announced a Bill would be introduced to ensure mixed sex couples have the same choices of marriage or civil partnerships. The Civil Partnerships (Scotland) Bill was introduced in September and is currently pending. In Northern Ireland, opposite sex couples will be able to enter into civil partnerships from 13 January 2020.

How popular are civil partnerships likely to be?

The latest marriage statistics, for 2016, were published in March. They show there were just under 250,000 marriages in England and Wales in 2016, c97% – around 242,500 – between opposite sex couples. That represented a 1.7% increase on 2015. There were c7,000 marriages between same sex couples, an 8.1% increase from 2015. Note that 2016 was only the second full year of marriage being available to same sex couples.

https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2016

Marriage rates are at historic lows, despite a small increase in the number of people who got married in 2016.

Government estimates that 84,000 civil partnerships between opposite sex couples will be formed in year 1. Inevitably there will be an initial spike to reflect the fact that people who have waited many years for this development will now take advantage of the change in the law and this is likely to tail off.

Extrapolating from the experience of same sex couples – in 2006, the first full year of civil partnerships being available to them, there were 16,100 civil partnerships formed. This levelled off at around 6,000 per year until same sex marriage became available in March 2014; thereafter the number of civil partnerships formed has been small –

2014 – 1,683 (having been 5,646 in 2013)

2015 – 861

2016 – 890

2017 – 908

2018 – 956

https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/civilpartnershipsinenglandandwales/2018

In 2016, the most recent year for which we have statistics for both types of union, there were 7,019 marriages of same sex couples and 890 civil partnerships; or about 7 times as many marriages as civil partnerships. If behaviours among opposite sex couples are the same, based on 2016 marriage numbers we may expect c30,000 civil partnerships a year. However – and it remains to be seen – it may be that marriage is especially popular among same sex couples as it was so hard fought for; and given how long opposite sex couples have waited for civil partnerships, they may be more popular than my crude analysis suggests.

Is there any difference between marriage and civil partnerships?

The short answer is – very little.

The Government Equalities Office has produced a useful table of the similarities and differences between civil partnerships and marriage as it applies to same-sex and opposite-sex couples https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/851152/Marriage_and_Civil_Partnership_in_England_and_Wales.pdf

Practically speaking –

  • Civil partnerships bring all the same rights and responsibilities as marriage
  • their formation is slightly different – there is no solemnised form of words, just the signing of a civil partnership document. But the same requirements as marriage apply in terms of age, notice etc
  • there is the same eligibility for state pensions and the same tax and inheritance rights
  • the same remedies are available on dissolution of a civil partnership as on divorce – property adjustment, lump sums, maintenance etc
  • an important distinction is that whilst an opposite-sex marriage will be recognised universally, a civil partnership will not be recognised in every country. This is important for couples to be aware of if moving overseas.

What’s all the fuss? Why not just get married?

This is a commonly asked question.

Legally, the fuss arose because it was clearly discriminatory to deny civil partnerships to opposite sex couples while they remained available to same sex couples. Many assumed government would deal with the anomaly by abolishing civil partnerships altogether, especially once their popularity waned among same sex couples with the advent of marriage.

Opposite sex couples wishing to enter a civil partnership often cite celebrating not getting married. They don’t like the convention and vows associated with the institution (even as we move towards liberalising they way in which marriages are formed https://www.gov.uk/government/news/first-ever-marriage-review-to-free-up-dream-wedding-venues ). They cite its patriarchal roots and outdated nature.

Ultimately, it’s about choice. Statistically, relationships are likely to flourish if a couple has committed to each other in some tangible way. Although, in my practice, I see some excellent examples of cooperative co-parenting post-separation, and children are more likely to be harmed by being exposed to conflict than the fact of separation per se, generally speaking the most stable upbringing for children will be if they are living with parents who are married or CP’ed.

Some, such as Rebecca Steinfeld and Charles Keidan, are savvy and acutely aware of their lack of legal protection if they live together without formalising their relationship. Wishing to benefit from the same tax breaks as married couples, and the same treatment if the relationship ends through separation or death, are other drivers for people wishing to enter into a civil partnership.

So does this all mean that cohabitation reform is unnecessary?

No.

Cohabiting couples are the second most common family type in the UK and the fastest growing. There are around 3.3million cohabiting couples and this is expected to double by 2032 https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2018

Although the law changed in Scotland in 2006 to provide property rights for these couples on separation or death, the law has remained stubbornly unchanged in England and Wales (despite Law Commission recommendations in 2007) for many years. Private members’ bills have been introduced in the House of Lords but languished/fallen with successive elections https://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2019-0030

The problem is that the majority of cohabiting couples are ignorant of their lack of rights until it’s too late. They assume, wrongly, that they have a common law marriage and the law will protect them. It will not. https://www.comresglobal.com/polls/resolution-cohabiting-couples/

So while we celebrate the introduction of civil partnerships for all from today, let’s not forget the plight of cohabiting couples and campaign for law reform for them in the near future. Not all know that they have to formalise their relationship in some way to acquire rights; and given that that takes two people, not all can. Changing the law to protect them safeguards children. It has got to be right that we recognise the reality of what is happening in modern society.

For now…

Let’s celebrate the many wonderful couples forming civil partnerships today

https://www.google.co.uk/amp/s/www.bbc.com/news/amp/uk-50937894

https://www.google.co.uk/amp/s/www.bbc.com/news/amp/uk-50953410

https://www.google.co.uk/amp/s/amp.theguardian.com/uk-news/2019/dec/29/first-of-84000-couples-get-set-for-a-civil-partnership

Published by joedwardsfamilylaw

Chambers HNW Family Lawyer of the Year 2019, Head of Family Law Team of the Year 2017, directories-ranked and featured in Tatler’s new Address Book of HNW family lawyers. Over 20 years’ experience working as a solicitor and mediator with separating families; since February 2016, Head of Family at Central London firm Forsters LLP. Separation & divorce, money & children, nuptial/cohabitation/separation agreements. Adept at court but prefer DR. Former Resolution chair, media commentator, campaigner for family law & family justice reform.

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