Cohabitation, civil partnerships and marriage – the choice is yours?

Family | 6th July 2018

Last week, five judges of the Supreme Court decided unanimously that the current law regarding civil partnerships is not in line with the European Convention on Human Rights.

The case involved a couple, Rebecca Steinfield and Charles Keidan. They wanted to formalise their relationship but both felt strongly that marriage, with what they regarded as its history of discrimination against women, did not reflect their commitment to be equal partners. Instead they wanted to enter into a Civil Partnership, “a modern symmetrical institution”.

The judges described the couple as having a “conscientious objection to marriage”. It went on to say that “their wish to have their relationship legally recognised is”…”entirely authentic”.

What are the options for a couple if they do not consider marriage to be appropriate?

Civil Partnership

This was introduced by the Civil Partnership Act 2004, which enables same sex couples to enter into a civil partnership, which effectively provides the same rights, responsibilities and benefits as a married couple. It also means that, on the breakdown of the civil partnership, there is a procedure very similar to divorce, including how the court will determine financial and property claims.

Same sex couples were later provided with the additional option of getting married, with the coming into law of the Marriage (Same Sex Couples) Act 2013.

However, there was no quid pro quo that meant that heterosexual couples could opt for a civil partnership rather than a marriage. The government decided to delay any decision on the future of civil partnerships. This “wait and see” approach meant that Rebecca Steinfield and Charles Keidan found themselves with only one option, namely marriage, and they felt that this lack of choice amounted to unequal treatment.

Cohabitation

This did not fulfil what this couple wanted as cohabitation is not generally a legally recognised relationship. It also comes with the inherent problem that, contrary to what you might expect, there is no such thing as a common-law marriage. Without a detailed cohabitation agreement and clear information on the property deeds, this can result in great uncertainty and unfairness on a breakdown of the relationship. This can lead to the possibility of one of the couple being left financially high and dry on the breakdown of the relationship if the home is owned by the other. Property claims involve complex trust law, a variety of statutes and usually end up in a costly court case.

With children, as in this case, the court can at least make orders to ensure that the children’s housing and financial needs are met on the breakdown of the relationship.

However, there remains great uncertainty and the possibility of considerable unfairness for separating couples.

After this case, in parts of the media, there appears to be the suggestion that if civil partnerships are opened up to all cohabiting couples, this would solve the unfairness of cohabitation law.

Whatever your views may be on these complex issues, extension of the civil partnership to all couples would not necessarily mean a stampede to the civil partnership “altar”. You could argue that it is important for all couples to have a choice and the court has agreed with this point. However, many other couples may conclude that neither marriage nor civil partnership is for them, notwithstanding the benefits, rights and responsibilities that come with these, and decide to continue as cohabiting couples.

Whether in a marriage or a civil partnership, it is perhaps worth mentioning that, when it comes to the breakdown of a relationship, it is the courts (not the couple) that ultimately decide how financial and property claims should be dealt with. The courts must apply a set of factors, which were set out in a law dating back to 1973, albeit with later cases that have given guidance of how these factors should be applied. However, the courts have the ultimate discretion on how to apply these factors to a particular case.

The couple can of course try to resolve their issues through mediation and other non-court options, but, ultimately, the court has the final say even where the couple have come to an agreement. Pre and post-nuptial agreements are increasingly being used by couples to try to have some control on how financial matters will be dealt with on the breakdown of a marriage or civil partnership, but even so the court can overrule that agreement if it considers it to be unfair to one of the couple.

In concluding that the present restriction of a civil partnership to same sex couples is incompatible with human rights law, the Supreme Court has given the government a “bloody nose”. However, it will have to be seen how quickly any change in the law will actually take place. Sadly, for Rebecca Steinfield and Charles Keidan, having won in the highest court in the land, they will not be able to send out the invites to their civil partnership just yet.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Julian Waldon

Associate, Family

Julian has extensive experience in family law and in particular high net worth financial cases. Qualifying in 1988, Julian’s career has included p...