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Civil Partnership Act 2004

03 July

Civil Partnership Act 2004

The Supreme Court decided on 27th June 2018 that the Civil Partnership Act 2004, which only applies to same sex couples, is incompatible with the European Convention on Human Rights.

The Supreme Court decided on 27th June 2018 that the Civil Partnership Act 2004, which only applies to same sex couples, is incompatible with the European Convention on Human Rights.A heterosexual couple, Rebecca Steinfeld and Charles Keidan had challenged the Act on the basis that, as an unmarried couple who did not believe in the principles and “legacy of marriage” they felt that marriage as an institution had “treated women as property for centuries” and that the Civil Partnership Act, if extended to heterosexual couples, would offer them the kind of equal partnership that would be a better example for their children.

Since March 2014, same sex couples have been in a position where they can choose whether to enter a civil partnership or to marry. This choice has not been available for heterosexual, or mixed-sex couples, leading to the argument that the law was discriminatory.

Currently, co-habiting couples (i.e those who are unmarried) do not have any legal rights over the property or assets of the other. In a Civil Partnership, a couple is entitled to the same legal treatment in terms of inheritance, tax, pensions and next-of-kin arrangements as a married couple. In a cohabiting situation, unless assets are owned in joint names, the other party to the relationship cannot claim against anything in their partner’s name. This has long since being felt to be an outdated concept, and the Law Commission has made recommendations for reform in this area. The government announced in 2011 that it would not take forward the Law Commission’s recommendations for reform during the 2010 to 2015 parliamentary term.

The Law Commission’s research focused on several issues, including whether co-habiting couples should have access to any remedies providing periodical payments, lump sums or transfer of property from one party to the other when they separate and a review of the operation of existing remedies providing capital awards (such as lump sum and property transfers for the property of children under the Children Act 1989). The Law Commission also considers whether, where a co-habitant dies without a Will, the surviving partner should have automatic rights to inherit. The law currently gives surviving spouses an automatic inheritance in such circumstances. Co-habitants can normally only benefit from the estate in these cases if the Court grant them a discretionary award on the basis of their needs (Inheritance (Provision for Family and Dependants) Act 1975). The Law Commission also suggested and conducted a review of the Inheritance (Provision for Family and Dependants) Act 1975 as it applies to co-habitants and their children and examined whether contracts between co-habitants, setting out how they will share their property in the event of the relationship ending, should be legally binding and enforceable and if so, in what circumstances.

Co-habitation Agreements, in the same way as Pre-nuptial Agreements (formed before, but in contemplation of a marriage), are not currently legally binding but they are persuasive to the Court. There is a move to make such agreements, both Co-habitation Agreements and Pre-nuptial Agreements legally binding.

Many feel that rather than considering how the Civil Partnership Act 2004 could apply to heterosexual couples, the most appropriate thing to do would be to look again at the suggested reforms for co-habitants.

That being said, the Supreme Court has ruled that current UK law was incompatible with Human Rights Law on the grounds of discrimination and the right to a private and family life. The Court, did, however comment that the government did not seek to justify the difference in treatment between same sex and different sex couples and the government accepts that this difference cannot be justified.

The issue with regard to the division of property and assets on the breakdown of a relationship or the death of a partner has been a problem faced by many people and their lawyers over the years. This does not just apply in situations where people choose not to marry, either because like Steinfeld and Keidan, they do not feel that marriage suits their circumstances, but also in situations where people may have had only a religious marriage without any civil ceremony. In these cases, people who have lived together for many years, had children, and lived in all other ways as a married couple, find that either on the breakdown of a relationship or on the death of their partner, they have no interest in any assets in that partner’s sole name. This is often a shock, particularly if this knowledge only comes as a result of a death of a life partner.

There is, however, some legal commentary which queries whether the right thing to do would be to extend the Civil Partnership Act, or whether the reform suggested by the Law Commission in relation to co-habiting couples should now be reconsidered.

Whilst this decision has now been made in favour of Ms Steinfeld and Mr Keidan, the judgement does not oblige government to change the law, although it does make it more likely that the government will now act and give consideration to all of the issues raised.

If you have any queries or concerns or you are in any of the situations set out above, then please contact either the family or the probate team at Bell & Buxton on 0114 249 5969.