The Civil Partnership Act 2004 created a framework functionally equal to, though distinct from, marriage. Since then, English law has fashioned an unprecedented anomaly in that same-sex couples enjoy greater choice in formalising relationships than opposite-sex couples. This discrepancy has faced Government review, academic criticism, and a unanimous finding of discrimination by the Supreme Court. The Government has since announced that civil partnerships will be extended to mixed-sex couples. Such a move would respect the liberty of the individual to live as freely as possible in accordance with their own values, while providing stability and legal peace of mind for cohabitants. To paraphrase a former Prime Minister, we shouldn’t back mixed-sex civil partnerships in spite of being Conservatives, but precisely because we are Conservatives.
Despite being the “fastest growing family type”, cohabitants face rigid property law principles upon relationship breakdown or death. Case-law proves that this is no theoretical conundrum, with cohabitation offering scant legal security. Deathbed weddings are even climbing, as people desperately seek legal protection. There is also a “punitive” gender dimension, with hardship disproportionately falling on women who may have sacrificed careers to raise children. Despite the Living Together campaign, cohabitants rarely declare property ownership via trust or cohabitation contract. With the pervasiveness of the common-law marriage myth, whereby long-term cohabitants wrongly believe they attain similar rights to married couples, it is right to offer cohabitants more opportunities to escape their precarious situation. Christian Concern, however, do urge caution; suggesting that opposite-sex civil partnerships will “discourage some…from marrying” by offering “all the rights… without the need for lifelong commitment”. But if marriage is the more fulfilling institution, its adherents should have no difficulty persuading people of its virtues, rather than excluding equal civil partnerships. Many couples resent the “marriage or nothing” choice presented. If couples are propelled into marriage due to legal insecurity, it undermines the ‘voluntary union’ envisaged by Lord Penzance’s common law definition of it. Besides, couples opposed to marriage would never consider one anyway and even with equal civil partnerships, marriage would remain the majority choice Figure 4. We simply cannot ignore the 25% of cohabitants who would “prefer to form a civil partnership”Figure 5 over cohabitation.
Echoing Mill’s harm principle, Tim Loughton MP argues the State ‘should allow people to be as free as possible… without harming the freedom of others”. It is unclear how equal civil partnerships would damage others. He and the Times also point out that they could enhance child welfare and family stability, arguing that if only 10% of cohabitants chose a civil partnership, 300,000 couples and their children would benefit. In the Steinfeld case, the appellants sought to “protect their child” in the event of premature death.
Comparative law also indicates a demand for opposite-sex civil partnerships. In the Netherlands, universal civil unions have demonstrated remarkable longevity. Austria has also recently legalised equal recognised partnerships. In one UK review, some 20% of opposite-sex couples stated that they would prefer a civil partnership to marriage (at para 2.18). Moreover, Court of Appeal judges stated that differential treatment in terms of civil partnership access is “unsustainable”, given that the ECHR requires “particularly serious reasons” to justify sexual orientation discrimination. The Supreme Court has since issued a declaration of incompatibility confirming that English law stands at odds with the ECHR. Equal civil partnerships would also remove the “sense of [them] being a consolation prize”p489 for LGBT couples. Presently, the law “adversely affect[s]”para 7(6) those seeking gender reassignment, as the civil partnership must either be dissolved, since the partnership would otherwise illegally become opposite-sex, or maintained at the expense of individual welfare. A law imposing such an unenviable decision surely requires urgent reform.
Many liberal jurisdictions have, however, abolished civil unions post-marriage equality. But to abolish civil partnerships would be the equivalent of taking a sledgehammer to crack a nut. It would respond to calls for more freedom in formalising relationships by restricting choice further. The Government must therefore press on with extending civil partnerships, as abolition would hollow out the claimants’ Supreme Court success into a Pyrrhic victory. Repeal would not remedy the issue of opposite-sex couples personally opposed to marriage due to its purported religious or patriarchal undertones. Instead, it would alienate same-sex couples who reject marriage too. The UK Government identified that some same-sex couples prefer civil partnerships and the Scottish Government, after equal marriage, noted persisting ‘modest demand’. Numbers are actually increasing. The repeal would presumably confirm the validity of pre-existing civil partnerships, with many civil partners refusing to convert them into marriages. Its abolition, however, would potentially prompt the social downgrading of such relationships if Parliament considers the very legal framework that people chose to publicly affirm their commitment to be no longer worth maintaining. If this question is posited as one of equality, abolishing civil partnerships would achieve it by disenfranchising both opposite and same-sex couples uncomfortable with marriage.
The Conservative Party delivers best and appeals most when it is unashamedly One Nation. With Labour overrun by ideological hardliners, Theresa May senses an opening to plant the Conservatives in the centre ground as the moderate, pragmatic, and patriotic party for all. Extending civil partnerships would chime with the three values that the Prime Minister identified as binding all Conservatives: security, freedom, and opportunity. Mixed-sex civil partnerships offer the security of statutory rights and legal peace of mind. They respect the freedom of the individual to live as they choose, without prejudice to any other person or institution. They too offer the opportunity for couples to publicly express their commitment and to raise children in more stable family units. It is ironic that Lord Lester’s bill introducing civil partnerships envisaged its availability for opposite and same-sex couples. After taking a rather scenic route, it is good news that the Conservatives have surely made it a matter of when, not if, English law will arrive at the destination he originally intended.
Tom is a graduate from the University of Warwick (2017) and a former Conservative Councillor who now works in the European Parliament. The opinions expressed reflect only those of the author, not those of any other person or institution