The couple wanted to be civil partners because they rejected the foundation of marriage as being ‘patriarchal’, believing this did not reflect the equality in their relationship. Let’s be clear –a civil partnership confers the same rights as a marriage. The desire to have a civil partnership over a marriage made no difference to their legal rights, it was just a matter of principle.

The opposition in the case, the government, accepted that preventing heterosexual couples from entering into civil partnerships was unfair and amounted to discrimination on the grounds of sexual orientation. The case in the Supreme Court turned on a much finer issue – whether the discrimination could be justified.

Rewind back to 2013, when the government made same-sex marriage lawful. It was at this point, the court held, that heterosexual couples began to be discriminated against. Put simply, before same-sex marriage was allowed heterosexual couples had marriage whilst same-sex couples had civil partnerships – neither was legally superior to the other. However, when same-sex marriage was legalised suddenly homosexual couples had a choice – do I have a civil partnership or get married? In a society where the power to control your own life is so important, some people (like Charles and Rebecca) clearly felt aggrieved at the lack of choice afforded to heterosexual couples.

The government argued that, under EU laws, when a ‘manifest inequality’ is identified some time is allowed before making a change in the law, allowing the government to carry out all the necessary consultations. However, the Supreme Court held that while this may apply when inequality is caused by evolving societal attitudes (for example, the gradual acceptance that same-sex marriage should be allowed), this should not be the case when the government artificially creates the situation of inequality (by creating the discrimination through a direct change in the law).

As a result, the Court made a ‘declaration of incompatibility’, meaning that the law preventing straight people from entering into a civil partnership is in breach of human rights, namely the right to family and private life and the right not to be discriminated against. With over 3 million cohabitants in the UK, could we see a surge in Civil Partnerships in the years to come?

Article by Sam Wysocki, trainee family paralegal at Charlesworth Nicholl.  

Phone: 01363 774706

Email: srw@charlesworthnicholl.co.uk