In family law news from across the pond, a heterosexual couple in England who want to enter into a civil partnership instead of getting married but have been prevented from doing so have been granted the right to take their case to that country’s Supreme Court.

What Happened?

The couple from London, England are fighting to secure legal recognition of their seven-year long partnership. They do not consider marriage suitable for them, and instead want to enter into a civil partnership- a relationship that the country’s Civil Partnership Act, 2004 currently only recognizes for same-sex couples. In 2013, the couple filed a judicial review after the application to register their union in a civil ceremony was rejected.

The couple, who have a young daughter and are expecting another child, seek to formalize their relationship within what they say is a “social institution which is modern, which is symmetrical and that focuses on equality, which is exactly what a civil partnership is”.

The couple’s case was first rejected by the High Court in January 2016. They appealed to the Court of Appeal, arguing that they have deep-rooted and genuine ideological objections to marriage and want to instead be in a legally recognized relationship without “patriarchal baggage”. The three Court of Appeal judges unanimously agreed that the couple was being treated differently because of their heterosexual orientation, and that this was impacting their family life. The judges also rejected the notion that the couple could simply get married to achieve the recognition they requested. However, the Court ultimately dismissed the appeal, relying on the government’s “wait and evaluate” policy as justification for doing so.

Following the Court of Appeal’s decision, the Secretary of State for Education, who is responsible for equality measures, said that civil partnerships will not be extended to opposite-sex couples, however, these partnerships will also not be abolished or phased out. Before making a final decision either way, the government intends to see how the extension of marriage to same-sex couples will impact civil partnerships.

A Fight for Equality and Recognition

Since the beginning of their legal quest, the couple has collected more than 72,000 signatures in an online petition calling for civil partnerships to be open to all couples, not just same-sex couples.

A human rights lobbyist who supported the couple in court has stated:

It cannot be right that lesbian and gay couples have two options, civil partnership and civil marriage; whereas opposite-sex partners have only one option, marriage.

Civil Partnerships in England

The Civil Partnerships Act, 2004 granted same-sex couples rights and responsibilities very similar to civil marriage. Under the Act, same-sex civil partners are entitled to the same property rights as married couples, the same social security, pension and life insurance benefits, next-of-kin rights in hospitals, and the ability to get parental responsibility for the children of a partner, among other rights. There is also a formal process for dissolving civil partnerships similar to a divorce.

In 2014, the Marriage (Same Sex Couples) Act extended to right to marry to gay couples in England and Wales, effectively permitting same-sex couples to choose between civil partnership or marriage.

In 2013 there had been over 5,646 civil partnerships in England in Wales. In the two years following the introduction of the Marriage (Same Sex Couples) Act¸ this fell by 85%, and in 2015 there were 861 couples who opted for civil partnerships over marriage.

The Isle of Man is the only part of the British Isles where both gay and straight couples can register civil partnerships.

Why Civil Partnership?

Many may wonder why a heterosexual couple who has always had the right to marry would not want to do so, and why this couple is fighting for a legal alternative to marriage.

In England, living in a common law relationship does not provide the same legal rights and tax breaks as those afforded to married couples. Marriage is the only way in which to obtain these benefits. Having a relationship recognized as a civil partnership would afford a couple the same rights as a married couple, without that couple having to enter into a partnership that many view as sexist, patriarchal, and outdated.

There is a strong argument in favour of overturning the ban on heterosexual couples entering into civil partnerships. The equal marriage debate was won in 2014 based on the notion that what is available to heterosexual couples should also be available to homosexual couples. The same logic should therefore hold in reverse.

The couple’s case is expected to be heard in the first half of 2018. If the Supreme Court overturns the Court of Appeal’s decision, heterosexual couples would be allowed to enter into a secular partnership much like an opposite-sex couple. We will continue to follow developments in this ongoing matter and will provide updates as they become available.

In the meantime, if you have questions about your rights here in Canada, including questions about common law relationships and/or same-sex marriage, contact experienced and trusted Windsor family lawyer Jason P. Howie at 519.973.1500 or online. We serve clients in Windsor, Essex County and throughout the region.