Yesterday the hearing of the application by Rebecca Steinfeld and Charles Keidan for judicial review of the decision not to extend civil partnerships to opposite-sex couples began. They are claiming that the refusal to allow them to participate in a civil partnership amounts to discrimination, breaching their right to family life under article 8 of the European Convention on Human Rights.
I am not going to comment here upon the merits of the claim and whether or not I think it will succeed. Instead, I wanted to look at the question generally: should civil partnership be available to opposite-sex couples as well as same-sex couples? I have previously written here giving the view that civil partnerships were only ever intended as a stop-gap because back in 2004 the country was not yet ready for same-sex marriage and that civil partnerships should therefore be phased out entirely. However, having given the matter further consideration, now I am not so sure.
Let’s look a little more closely at the arguments of Ms Steinfeld and Mr Keidan. They claim that civil partnership is more modern and equal than marriage. It is obviously more modern, but is marriage really unequal in 21st century Britain? They describe marriage as a ‘patriarchal’ institution. It is certainly true that marriage has a ‘sexist’ history in subordinating women to men, as has been stated elsewhere, but is that still the case today? The only point I have heard them make in this regard is that marriage certificates still only provide for fathers’ names, not mothers. That may be described as sexist, but it may also be considered trivial, and hardly sufficient to describe marriage as a ‘patriarchal’ institution.
On the other hand, it seems to have been suggested that cohabiting couples who would never have married may choose to enter into civil partnerships, thereby cementing their relationships and providing each other with the security, legal protections and tax advantages civil partnership brings. I suppose some cohabiting couples (like Ms Steinfeld and Mr Keidan) may choose to do this, although I suspect that most will not. Many who object to marriage do so for reasons that could equally apply to civil partnership.
Ms Steinfeld and Mr Keidan do also make the point that a change in the law to allow opposite-sex couples to enter into civil partnerships would be easy to achieve. I suppose that must be true – after all, the machinery is all there, and only a few relatively small amendments to the Civil Partnership Act would be required.
Perhaps the question boils down to whether civil partnership as an option for all is just an unnecessary complication, or whether there is a real need for it. A review of civil partnership in 2014 suggested that there is no public appetite for opening up civil partnership to opposite sex couples, with more than three quarters of the 10,634 respondents to the consultation question seeking views on the proposal saying that they were against it.
I suspect that a similar proportion of the population may now still be against the proposal, although that is not necessarily a reason for it not to happen. There is, after all, clearly a significant amount of support for it: a petition to change the law created by Ms Steinfeld and Mr Keidan has so far attracted over 33,000 signatures, and former children’s minister Tim Loughton has put down a 10 minute rule bill in support of the campaign. I also understand that both marriage and civil partnership are available in some countries, such as Holland and New Zealand, so there clearly seems to be a need there.
Meanwhile, recent research regarding civil partnerships and same-sex marriages paints a contradictory picture. On the one hand figures from the Office for National Statistics revealed a predictable decline in the number of new civil partnerships entered into following introduction of same-sex marriage, and yet on the other hand a recent study indicated that those couples already in civil partnerships were in no rush to convert those partnerships into marriage – they appear to be happy as they are.
So, should civil partnership be available to all? Having given the question rather more thought, my answer would be: why not? The negative respondents to the 2014 consultation put forward various arguments against any change, such as that it would undermine the stability of marriage, that very few opposite-sex couples would want it and that marriage was felt to be the appropriate relationship for an opposite-sex couple. However, none of those arguments really hold water. The fact of the matter is that there aren’t any good arguments against: a change in the law would be easy, and there are people out there who want it, so why not do it?