The supreme court has ruled that restricting civil partnerships to same-sex couples is discriminatory, putting the government under pressure to allow heterosexual couples to enter into such unions.
Justices at the UK’s highest court unanimously found in favour of Rebecca Steinfeld and Charles Keidan, declaring that their human rights had been breached.
In an initial response, an Equalities Office spokesperson issued a non-committal statement saying it would said consider the judgment with “great care”.
The prime minister’s official spokesman later said more time was needed for “the government equality office to consider all aspects of civil partnerships for heterosexual and same-sex couples. This is currently under way and we will consider its conclusions in due course.”
But Penny Mordaunt, the international development secretary and equalities minister, is understood to be sympathetic to opening up civil partnerships to everyone.
Dawn Butler, Labour’s shadow minister for women and equalities, called for the law to be changed. “The government should have already legislated to ensure all couples have equality of choice,” she said. “Labour is calling on the government to take action and change the law to ensure all people have access to civil partnerships and are able to choose what is right for them.”
Tim Loughton, a Conservative MP who supports the couple’s campaign, is due to meet a Home Office minister on Thursday to discuss the issue. He has also submitted a private member’s bill, which has government support, that commits ministers to carrying out an investigation into different civil partnerships.
Steinfeld and Keidan, of west London, believe the institution of marriage is patriarchal and sexist. They have fought a prolonged legal campaign to open up civil partnerships to opposite-sex couples.
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Civil partnerships were created in 2004 as a means of allowing same-sex couples to enter into a union that guarantees them similar legal rights to those who are married.
They were limited to same-sex couples but in October 2018, following a supreme court ruling declaring the existing position discriminatory, the government announced that heterosexual couples would also be entitled to enter the arrangement.
There are differences between the two forms of union, partially symbolic and partially matters of substance. For a marriage, the ceremony is solemnised by the couple saying a prescribed form of words; in a civil partnership, the couple can simply sign a document.
Marriages can be conducted through either a civil or religious ceremony, at a registry office, church or wherever a venue is licensed. Civil partnerships are secular events, although partners can choose to hold a religious ceremony on the day.
Civil partners cannot declare, for legal purposes, that they are married. Civil partnership certificates include the names of both parents of the parties whereas marriage certificates in England and Wales include only the names of a couple's fathers – for the time being.
In terms of annulment the rules are virtually identical, although the clause that permits a marriage to be dissolved if one partner is 'suffering from a venereal disease in a communicable form' does not apply to civil partnerships.
Likewise, adultery can be grounds for a married couple to divorce though it cannot be relied upon to end a civil partnership.
Those in civil partnerships and those who are married enjoy the same tax breaks and benefits – such as the marriage allowance and bereavement payments. Surviving civil partners are treated the same as widows or widowers in terms of rights to state pension.
While those who are married and in civil partnerships enjoy extensive legal rights, those who are merely cohabiting – 3.3 million couples at the last estimate – have no legal protections or property rights if one of them dies.
At present, heterosexual couples may only marry, while same-sex couples can either marry or take up a civil partnership. Steinfeld and Keidan had lost earlier legal challenges at both the high court and the court of appeal.
In their decision, the five supreme court justices formally declared that the ban preventing opposite-sex couples from obtaining civil partnerships was incompatible with their human rights and amounted to discrimination.
The government should have eliminated the inequality of treatment between same-sex and opposite-sex partners when the Marriage (Same Sex Couples) Act came into force in 2014, the judges said.
“This could have been done by abolishing civil partnerships or by instantaneously extending them to different-sex couples … Taking time to evaluate whether to abolish or extend could never amount to a legitimate aim for the continuance of the discrimination.”
In the three and a half years since they launched their legal claim, Steinfeld and Keidan have had two children. The couple’s commitment to equality and rejection of marriage because of its patriarchal associations is such that rather than give them a double-barrelled surname they have the fused family name of Keidstein.
The only jurisdiction in the British Isles that permits opposite-sex civil partnerships is the Isle of Man. Some couples have travelled there for ceremonies, but the unions are not recognised in the UK.
Other countries such as South Africa, New Zealand and the Netherlands allow couples to choose either civil partnership or marriage. In the Netherlands last year there were 64,400 marriages and 17,900 civil partnerships, suggesting there is demand for both arrangements.
Abolishing civil partnerships for same-sex couples to end the discrimination could mean dissolving legal ties that unite 63,000 gay couples – a course of action that would trigger political furore and legal uncertainty.
Even the Marriage Foundation supports extending civil partnerships to heterosexual couples, believing they are “infinitely preferable to unthinking and risky cohabitation”.
There are 3.3 million unmarried cohabiting couples. They have no legal rights if a partner dies. If they all entered civil partnerships, it could have a significant impact on the government’s pension costs and tax income.
There was applause in court from supporters of Steinfield and Keidan after the judgment was read out.
Keidan said: “The government is in a position to complete the circle of equality by making sure civil partnerships are now extended to everyone, to make sure the inequality is remedied.”
Steinfield said: “After four years and four equality ministers, we get there in the end. I’m frustrated that the government made us go through this at the cost of all this money.”
Steinfeld and Keidan’s case was funded through the website Crowdjustice.
In a joint statement, they said: “We have fought this battle not only on our own behalf but for 3.3 million unmarried couples in England and Wales. Many want legal recognition and financial protection, but cannot have it because they’re not married and because the choice of a civil partnership is not open to them. The law needs to catch up with the reality of family life in Britain in 2018.”
Louise Whitfield, the couple’s solicitor, from the law firm Deighton Pierce Glynn, said she was delighted at the unanimous supreme court victory.
She said it was rare for rulings to have a personal impact on her life, but she would be going home to ask her husband for a divorce so that they could enter into a civil partnership instead. “I’m a feminist,” she said. “That’s why I took this case on.”
An Equalities Office spokesperson said: “The government is very aware of its legal obligations, and we will obviously be considering this judgment of the supreme court with great care.
“We recognise the sensitive and personal issues involved in this case and acknowledge, as the supreme court does, the genuine convictions of the couple involved. We will study the court’s judgment carefully and respond in due course.”
