One of the changes brought about by the Act was extending the availability of civil partnership to couples not of the same sex. The Act is due to come into force two months from the date it was passed.
The Civil Partnership Act 2004 (CPA) defines a civil partnership as “a relationship between two people of the same sex” under Section 1(1) of the Act. It further goes on to state that a couple would not be eligible if “they are not of the same sex”, under Section 3(1)(a) of the CPA.
This clearly prohibits opposite-sex couples from being eligible for civil partnerships.
The introduction of same-sex marriages
The options available to same-sex couples changed when the Marriage (Same Sex Couples) Act 2013 was introduced. This Act made same sex marriages legal. This meant that same sex couples would have the option of a marriage or civil partnership. This option was not available to opposite-sex couples at the time. This brought into question whether the introductions of CPA 2004 was discriminatory against opposite sex couples and whether the eligibility for a civil partnership infringed on opposite-sex couples Article 8 and Article 14 rights under the European Convention on Human Rights (ECHR).
Case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development
The issue of opposite-sex couples not being able to have civil partnerships stemmed from the case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development.
In this case Steinfeld and Keidan had been in a long-term relationship and wanted a civil partnership. They both objected to the idea of marriage.
They made an application in 2016 for judicial review. When they lost this, they took their appeal to the Court of Appeal. Although they had also lost their appeal in the Court of Appeal they were granted permission to appeal to the Supreme Court.
On 27 June 2018, Lady Hale, Lord Kerr, Lord Wilson, Lord Reed and Lady Black gave their judgement on the matter. They concluded by saying “I would allow the appeal and make a declaration that Section 1 and 3 of the CPA (to the extent that they preclude a different sex couple from entering into a civil partnership) is incompatible with article 14 of ECHR taken in conjunction with Article 8 of the Convention.”
The introduction of the Civil Partnership, Marriages and Deaths (Registration Etc.) Act 2019 will rectify the CPA’s incompatibility with Article 8 and 14 on this particular point and allow both same-sex and opposite-sex couples to apply for civil partnerships.