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The Future of Civil Partnerships in Scotland


The Future of Civil Partnerships in Scotland

Civil partnerships have featured heavily in the news recently as their future has been called into question by a recent Supreme Court judgement. In August 2018, a couple – Rebecca Steinfeld (37) and Charles Keidan (41) from London, complained that the law on civil partnerships was in breach of their human rights.

Their case was successful, meaning the Government now must decide what the future of marriage and civil partnerships should look like. The developments following this judgment will have an impact on any couple in an existing civil partnerships, as well as all couples looking to legally formalise their relationship in years to come.

Why did this happen?

The case arose following the introduction of same-sex marriage in the UK.  Marriage became legally available to same-sex couples in March 2014. Before this, the only legally recognised union for same-sex couples was a civil partnership.

Since same-sex marriage was introduced, the law on civil partnerships has not changed.  This means that same-sex couples can now choose to either get married or enter a civil partnership.  Different-sex couples do not have the same choice. Civil partnerships were only ever available for same-sex couples, meaning marriage has always been the only option for different-sex couples. Ironically, the introduction of same-sex marriage has created an inequality: same sex couples have the choice to marry or get a civil partnership, whereas different-sex couples do not.

Incompatible with Human Rights

Ms Steinfeld and Mr Keidan challenged this inequality at the Supreme Court. They had been together for several years and had two children, but objected to marriage due to their belief that it is traditionally patriarchal and does not reflect the equality of their relationship. They argued that the lack of availability of civil partnerships to different-sex couples was a breach of the European Convention on Human Rights as it discriminated against them on the basis of sexual orientation.

By the time the appeal reached the Supreme Court, the representatives for the Government agreed that the new same-sex marriage laws created an inequality based on sexual orientation. They did, however, argue that this inequality was justified and proportionate because the Government required time to properly evaluate how to change the law. Two options to address the inequality were discussed: either opening up civil partnerships to different-sex couples, or abolishing civil partnerships altogether. In order to make this choice, the Government proposed to conduct an evaluation of civil partnerships by September 2019. This would be followed by a public consultation which would reveal whether civil partnerships were still sought after in light of same-sex marriage. The public consultation would take place “at the earliest” in 2020. No time frame was provided for how long this consultation period might last or when a final decision would be reached.

The Supreme Court rejected the Government’s justification. The judge highlighted that the Government had created the inequality with their own laws – it had not arisen due to changes in society. The Government were effectively asking the public to tolerate the inequality while they considered a solution – this was not considered sufficient to justify discriminating against different-sex couples. The judge also rejected the value of the proposed consultation, noting that all couples should have the opportunity to indicate whether they would consider entering into a civil partnership, rather than simply focussing on the preference for marriage. Even though the Government had undertaken to change the law eventually, the impact of denying civil partnerships to different-sex couples for an unknown period of time could have far-reaching consequences, for example, the tax implications if one of them died before the end of the evaluation period.

On this basis, the Supreme Court declared that the current law on civil partnerships was discriminatory and contrary to the European Convention on Human Rights.

What happens next?

The Government is now required to review the law of civil partnerships and take steps to remove the inequality. This may mean opting for one of the two options set out above. The Scottish government has already taken steps to consider these options and has launched a consultation on the future of civil partnerships. They propose two possibilities: either closing the registration of civil partnerships at a specific date, or extending civil partnerships to different-sex couples. Responses to the public consultation are open until 21st December 2018 should you wish to contribute: https://consult.gov.scot/family-law/the-future-of-civil-partnership-in-scotland/

Jennifer Broatch is an Associate in our specialist Family Law Team in Edinburgh. If you are considering a separation or divorce, or need advice on any other family related issues, please contact Jennifer on 03330 430150 or alternatively contact any member of our Family Law team.

Posted by Jennifer Broatch

Associate

Services associated with this entry

Civil Partnership Dissolution in Scotland

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