The Supreme Court has ruled (on 27 June 2018) that the law in England and Wales contained in the Civil Partnership Act 2004 is discriminatory in that only same sex couples can contract a civil partnership and it is not open to opposite sex couples.
Since 2013 same sex couples have been able to choose marriage or a civil partnership. The change in the law to allow equal marriage has now created an inequality as civil partnerships are not open to heterosexual couples.
In the case brought by Rebecca Steinfeld and Charles Keiden, the Court had to decide whether the current law contravenes the human rights of heterosexual couples.
Ms Steinfeld and Mr Keiden have a fundamental objection to marriage as an institution and do not want to marry. They do however want to have their relationship recognised formally in law and for there to be legal protections for their family – particularly now they have children. They had unsuccessfully argued their case in the lower courts. The judgment does now open up the debate about the status of marriage and civil partnerships in the UK.
In England, unmarried couples have little or nothing in the way of protection if they separate. In Scotland, the Family Law (Scotland) Act 2006 means that couples who are living together do have certain rights should the relationship end. It is not however the same legal framework as that which applies to civil partners and married couples.
In Scotland the legal consequences and the arrangements for sorting out the finances if there is a separation is broadly the same for both civil partnerships and marriage.
Family law in Scotland is a devolved matter. At the time the Scottish Government introduced same sex marriage in Scotland, the question about extending civil partnerships to opposite sex couples was considered but no amendments were made to the existing rules. In other jurisdictions, where there were options akin to civil partnership and then equal marriage was introduced, civil partnerships were abolished.
This particular issue has not been raised by any Scottish couples yet. In light of the Supreme Court decision on the English rules, it is likely any Scottish case would have the same outcome.
The question now becomes whether we should retain civil partnership and make it an option open to all couples, or abolish it all together since there is now equality of marriage.
Jennifer Gallagher, Partner in our Family Law team discusses the ruling and wider implications of the judgment on BBC Radio Scotland on the John Beattie show (27 June 2018) , you can listen here.