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Judges split as mixed sex couple lose civil partnership appeal

21 February 2017

A mixed sex couple have lost the latest round of their court action seeking the right to enter into a civil partnership rather than a marriage.

By a two judges to one majority, the Court of Appeal refused the appeal by Rebecca Steinfeld and Charles Keidan against a ruling that they could not have a civil partnership because they were not of the same sex.

The couple, who live in Hammersmith, west London, and have a 20-month-old daughter, want to secure legal recognition of their seven-year relationship but maintain that marriage is a “sexist” and “historically patriarchal” institution. They claim that in allowing same sex couples to enter either a marriage or a civil partnership but only allowing them to enter marriage, the law is discriminatory and incompatible with equality law.

The UK Government's position, which followed two public consultations and a debate in Parliament, was that it would not at this stage to seek to persuade Parliament to extend civil partnerships to opposite sex couples, abolish them or phase them out. It was waiting to see how extending marriage to same sex couples impacted on civil partnerships before making a final decision as to their future.

All three judges, Lady Justice Arden, Lord Justice Briggs and Lord Justice Beatson, agreed that the discrimination against heterosexual couples could not last indefinitely, but only Lady Justice Arden ruled that time had already run out for the Government. The other two judges effectively said ministers can have longer to review the situation.

Lord Justice Beatson stated: "I consider that the discrimination in the present arrangements with one legal regime for different sex couples but two legal regimes for same sex couples will ultimately be unsustainable. I, however, consider that at this point in time the Secretary of State’s decision to evaluate the impact of the 2013 Act [permitting same sex marriage] on civil partnerships before taking any further legislative steps to eliminate the difference of treatment between same-sex couples and different-sex couples is justified." Lord Justice Briggs agreed that the Government's approach was "objectively justified".

Lady Justice Arden however said the policy of “wait and see” what happened to civil partnerships was open ended in time and did not address questions other than the number of civil partnerships formed and dissolved. "It does not therefore address the important social question whether opposite sex couples should have the right in question."

Louise Whitfield of legal firm Deighton Peirce Glynn, who represented the claimants, said: “This is very frustrating. It was such a narrow win for the Government. They all agreed that the Government was living on borrowed time and that there had been a potential violation of their rights."

The claimants have said they intend to seek permission to appeal to the UK Supreme Court.

The Scottish Government has previously run a consultation on whether couples should still be able to enter civil partnerships now that same sex couples can marry, but it has not disclosed the balance of opinion in response. Ministers did not favour extending civil partnerships to opposite sex couples. Very few civil partnerships have been entered into in Scotland since same sex marriage became possible.

Click here to access the judgments.