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The Supreme Court has handed down judgment in the matter of R (on the application of Steinfeld and another) (Appellants) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary) (Respondent) [2017] EWCA Civ 81. The case was heard by five Justices of the Supreme Court on 14 May 2018. The judgment was delivered by Lord Kerr on 27 June 2018.

Background

Under the Civil Partnership Act 2004, civil partnerships are available only to same-sex couples. The appellants in the case were a different-sex couple in a committed long-term relationship, which they wished to formalise. They had personal objections to the concept of marriage and instead wanted to enter into a civil partnership. They were denied this on the basis that they did not meet the same-sex couple criteria.  They applied to the Court to review this continuing decision on the basis that it constituted discrimination on the grounds of sexual orientation and breached their human right to a family life.

Supreme Court

The issue before the Court was: Whether the bar on different-sex couples entering into civil partnerships breaches the appellants’ rights under Article 14 together with Article 8 of the European Convention on Human Rights. The High Court and the Court of Appeal had dismissed their claim.

The appeal was allowed by all five judges of the Supreme Court. They issued a declaration that Subsection 1 and 3 of the Civil Partnerships Act 2004 was incompatible with the European Convention on Human Rights (ECHR) to the degree that it excludes different-sex couples from entering into a civil partnership.

The Court rejected the Government’s argument that the European Court of Human Rights (ECtHR) case law allows a wide margin of appreciation in relation to the timing of legislative change to recognise different forms of relationship. 

The Court ruled that the government should not allow this situation of inequality to continue whilst they take time to consider how best to remedy this discriminatory piece of legislation. Even if there is not yet a balance between societal attitudes and the appellants rights, it could potentially cause more harm by denying different-sex couples the right to a civil partnership. 

Comment

When the Civil Partnership Act was implemented, the Government did not consider that Parliament was required to implement legislation reflecting different-sex partnerships as this was covered by the institution of marriage. However, the enactment of the Marriage (Same-Sex Couples) Act 2013 opened up marriage to same-sex couples giving them a choice not available to different-sex couples and therefore creating discrimination.

At that time, the Government decided not to consider reforming the Civil Partnership Act to include different-sex couples, as it wanted time to assess changes in societal attitudes. One reason for this was the idea that civil partnership would no longer be as attractive, on the basis that same-sex couples had marriage as the established method of formalising a relationship. The Supreme Court found that this was not a legitimate reason to justify the existence of such discrimination.

This judgment does not oblige the Government to change the law, but it does highlight the ongoing need for reform to ensure that both same-sex and different-sex couples are treated equally. This piece of legislation predated the law of same-sex marriage and therefore it is now time for the government to make a change.

If you have any queries regarding this article, please do not hesitate to contact me on lucy.loizou@iflg.uk.com / +44 (0)203 178 5668.

Lucy Loizou is a Solicitor at iFLG and has a wide breath of experience in all issues arising from the breakdown of a relationship but particularly specializes in financial and forum matters.

Lucy Loizou

The International Family Law Group LLP

lucy.loizou@iflg.uk.com

www.iflg.uk.com

© 28 June 2018