What’s in a name? That which we call a rose,
By any other name would smell as sweet.
Given that romantic partnerships are the topic of this blog, a quotation from Romeo and Juliette is not out of keeping with the theme. However, the question posed by one of the star-crossed lovers goes to the heart of the legal and social debate around marriage and civil partnership. At the outset, it is vital to understand that in terms of legal rights, there is no material difference between civil partnership and marriage. (Please note, especially if you are student of English family law and don’t want to hear your lecturer sobbing, the term “civil partnership” does NOT describe people who are cohabiting, but not married).
Winding the clock back in order to understand the context of this discussion, in 2004, the Government introduced civil partnerships for same-sex couples. This was a legal institution which allowed them to have a legally registered partnership, placing them in practical terms in almost an identical position to heterosexual married people. The importance of this development should not be underestimated, given that the legal protection available to cohabitants in this jurisdiction is flimsy or non-existent for most purposes. Some safeguards are in place in situations of domestic abuse, to ensure that victims are not faced with a stark choice between tolerating ill-treatment or immediate homelessness, but the courts do not have powers to redistribute property, nor order maintenance payments where relationships break down. If one partner is financially dependent on the other, perhaps having sacrificed their career and earning potential to look after a shared home and young family, their material outlook is going to be pretty bleak if a bitter ex doesn’t feel inclined to treat them fairly. Thus, civil partnership in many ways gave people in same-sex relationships the chance to secure their future, and that of the person they loved, as well as affording them legal recognition and benefits in the present.
Nevertheless, there was a big but: everybody agreed that civil partnership was not marriage, and the social status accorded to it was different. At worst, it could be argued that same-sex couples were forced into a legal ghetto, whilst Parliament did not allow them to share the same territory as those in male/female unions. For this reason, the campaign to introduce same-sex marriage continued, and it showed the diversity of views about the nature of this institution. The word ‘marriage’ was a prize worth fighting for, in the eyes of LGBTQ equality campaigners, and also for the conservative elements within society who resisted opening marriage to same-sex couples. In 2013 an outstanding step strengthening equality took place and same-sex marriage was introduced.
Interestingly, civil partnership was not abolished with this legal development. Consequently, we were left with a legal system which allowed same-sex couples to choose between marriage and civil partnership, but left opposite couples with marriage or nothing. The Supreme Court has now ruled that this is discriminatory as far as the latter are concerned, and that the current legislation is in breach of the Human Rights Act 1998. This ruling has not, and cannot change the law. Due to the principle of Parliamentary Supremacy, not even judges in the Supreme Court have the power to strike down an Act of Parliament, but as a result of this decision there will now be considerable moral pressure on the Government to address this.
In our view, this is the correct outcome and should be welcomed. The strength of feeling on all sides of the debate on the introduction of same-sex marriage demonstrated that a label does matter. Marriage is an institution with immense social, cultural and historical baggage. The law now affords same-sex couples the same right as other citizens to opt into this institution if they wish to do so, but it also gives them the chance to opt out, without being legally disadvantaged in relation to tax, inheritance, protection in the event of a relationship breaking down, home rights, etc, etc. Opposite sex couples can opt in or out, but if they opt out they are legally in an exposed and inferior position at the moment.
There are many serious, ideological reasons why some people reject marriage. Its perceived associations with religion, patriarchy and heteronormative oppression are enough to render it unappealing, or even indefensible, in some eyes. Of course, it goes without saying that many other citizens see things very differently! However, giving everybody the right to choose between marriage and civil partnership would allow universal freedom of conscience, and not make it dependent upon whether their life partner happened to share their gender.
R (on the application of Steinfeld and Keiden) (Appellants) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary) (Respondent)  UKSC 32
Heterosexual Couple win Civil Partnership Case (BBC News 27/6/18)
Civil Partnership Ruling Means That We Can All Move On From Marriage (The Guardian 27/6/18)