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For Whom the Bells Toll: The End of Civil Partnerships?

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About The Author

Jordan Robinson (Guest Writer)

Jordan is a third-year law student at Durham University, with a keen interest in commercial and family law. He plans on completing a Master's Degree in law before pursuing a career as a solicitor. Outside the law, Jordan enjoys swimming, hockey and volunteering in his local community.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were.

Justice Anthony Kennedy

The liberation of the LGBT+ community from the shackles of the criminal law began with the Sexual Offences Act 1967, which decriminalised private homosexual acts between men over the age of 21 in England and Wales. The UK has since removed the barriers which prevented homosexual couples from formalising their relationships under the Civil Partnership Act 2004 and Marriage (Same Sex Couples) Act 2013. Following the introduction of same-sex marriage in 2014, England and Wales saw an all-time-low of 861 registered civil partnerships while figures showed that between May 2014 and October 2015, over 15,000 same-sex marriages occurred.

Given the recent and certainly apparent decline in registered civil partnerships, particularly in light of their potential to be easily converted into a same-sex marriage, one may question whether there remains any real need for civil partnerships. Furthermore, as this article will argue, the risk of the regressive outcome that could result from their extension to heterosexual couples means that, in the UK, the civil partnership has no future.

Marriage and Civil Parternships as Substantively Identical

Following the enactment of the Marriage (Same Sex Couples) Act 2013, civil partnerships are no longer necessary for homosexual couples wishing to formalise their relationship. Both same-sex marriage and civil partnerships are substantively identical. They provide the same rights and responsibilities but do not recognise adultery, wilful refusal and inability to consummate as valid grounds for annulment.

However, there are those who object to certain social aspects of marriage; some argue that it is ‘value-laden with all the concepts that we dislike', whilst others such as Peter Tatchell (the coordinator of the ‘Equal Love Campaign’), object to the ‘history and baggage that goes with marriage’, preferring instead the more modern, egalitarian alternative of civil partnerships.

The Government nevertheless remains ‘unconvinced’ by this minority stance due to the absence of any ‘substantial tangible harm’ if civil partnerships were abolished. It follows that it appears likely that England and Wales will eventually abolish civil partnerships. For this reason, coupled with the statistics above illustrating a clear preference for same-sex marriage amongst homosexual couples, it is reasonably safe to conclude that civil partnerships have no future. 

Furthermore, it is evident that heterosexual couples gain no substantive benefit from having access to civil partnerships as both institutions confer the same rights and responsibilities on individuals; the Civil Partnership Act 2004 was enacted for the purpose of giving homosexual couples comparable rights to married spouses and was thus unsurprisingly described by Baroness Hale as ‘marriage in all but name’. The opposition to extending civil partnerships beyond the confines of homosexuality is further reinforced by statistics published in the Department for Culture, Media and Sport's Civil Partnership Review that showed that three-quarters of respondents were against such an extension. 

Rebutting the Extension of Civil Partnerships to Heterosexual Couples

Gaffney-Rhys, a prominent advocate of extending civil partnerships to heterosexual couples, pointed out two key differences between marriage and civil partnerships — namely that of fidelity and formation. Her argument underpinning fidelity is based on Section 50 of the Civil Partnership Act 2004, where adultery, wilful refusal and inability to consummate are not grounds upon which a civil partnership is voidable. Gaffney-Rhys recognised that some couples would prefer to formalise a more nurturing relationship, not underpinned by sex and would thus benefit from the absence of any sex-related grounds of annulment should one party later change their mind.

However, individuals finding themselves in this scenario are protected by the statutory bar to relief, estoppel, essentially estopping parties from relying on the grounds of annulment where an agreement was made prior to the marriage and was relied upon to one party’s detriment. Given this alternative means of protection, an extension to include heterosexual couples is evidently unnecessary, exposing the inherent flaws in Gaffney-Rhys’ argument and merely reinforcing the fact that civil partnerships have no future. 

Gaffney-Rhys’ second argument focuses on the discrimination heterosexual couples currently face as a result of the differences in formation between civil partnerships and marriage; the former being created when the couples sign the marriage certificate, the latter, coming into existence upon the exchange of oral vows. She argued that due to the voluntary nature of the vows, civil partnerships are inherently more private and thus appeal to many opposite-sex couples. 

However, even Gaffney-Rhys conceded that such a detriment is ‘arguably minor’ and will affect only a mere fraction of the population. As England and Wales notably remain the only jurisdiction to retain registered partnerships following the introduction of same-sex marriage, the relative disinterest in their formation indicates the Government will follow other jurisdictions such as Norway and Iceland in abolishing them.

The Effect on Transsexuals

An additional argument in favour of widening access to civil partnerships arises from the harsh reality imposed upon transgender people under the current legislation in England and Wales. Where a homosexual couple, one of whom is transgender, are in a civil partnership and that individual undergoes gender reassignment surgery, the couple must either annul their relationship or convert it into a marriage. This poses an adverse effect on the trans community who will essentially have no choice but to convert one legal entity into another.

Transgender people are further impacted when making a declaration as to their marital status, as this will effectively reveal their sexual orientation and often result in humiliation and discrimination. Whilst the impact on transgender individuals is an undoubtedly valid point to make, the argument that civil partnerships should, therefore, be made available to heterosexual couples is counter-intuitive. This is because the same result can be achieved through abolishing civil partnerships. The conclusion that civil partnerships have no future is merely reinforced.

Extending Civil Partnerships Causing Inequality?

Bamforth raises a humanitarian argument in favour of a civil partnership extension, submitting that in denying heterosexual couples the right to choose to form a civil partnership when homosexual couples have the ability to do so, the human dignity and autonomy of the former is violated. Whilst this may be true, Bamforth's argument fails to account for the inequality that would, in fact, arise if heterosexual couples were to be given this access; as same-sex marriage closely resembles civil partnerships, homosexual couples wishing to formalise their relationship may choose between two almost identical institutions, whereas heterosexual couples would have the choose between two more discrete forms of relationship — one where adultery, wilful refusal and inability to consummate are grounds for annulment, the other where they are not. The only effective solution is to abandon civil partnerships and avoid a saddening regression to a reality where homosexuals are granted fewer liberties than their counterparts. 

Conclusion

The introduction of the Marriage (Same Sex Couples) Act 2013 leaves little scope to argue for the retention of civil partnerships. Gaffney-Rhys’ attempts at persuading an extension of civil partnerships are both flawed and weak, whilst the current decline in registered civil partnerships provides clear evidence of their fading existence. The abolition of civil partnerships adequately combats the discrimination faced by transsexuals and is an effective prevention of further inequality that would arise if they were to be extended.

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Tagged: Family Law, Human Rights, Religion

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