On 29th January 2016 the High Court rejected a case brought by a heterosexual couple to extend the availability of civil partnerships to opposite sex couples. Rebecca Steinfeld and Charles Keidan brought the proceedings as they want the legal protection offered by a civil partnership but they do not want to get married. They view marriage as patriarchal in nature and have “deep rooted” ideological objections to the institution of marriage. The case was supported by the Equal Civil Partnership campaign and the basis of the claim was that current law is discriminatory.
A judicial review is a case brought by an individual or an organisation against a decision of a public body. A judicial review is usually sought when someone has had a decision imposed on them which they believe the public body does not have the legal power to make, or should not have made for other specified reasons. Commonly judicial review proceedings are brought against local authorities in respect of decisions they have made, for example, in the allocation of social housing.
It is unusual for a judicial review to be brought against a law passed by Parliament, known as primary legislation; in this case the law is the Civil Partnerships Act 2004. The only ground on which to seek judicial review of primary legislation is if it can be shown that the law is incompatible with the law of the European Union. In this case the couple argued that the current law breached their human rights as it interferes with their right to a private and family life.
Before a judicial review can be considered the High Court must give permission, known as “leave”. In this case leave was granted in February 2015. At that hearing the judge also made a Protective Costs Order which meant that the couple could not be ordered to pay the Government’s legal costs if their case was rejected; it is usual in judicial review cases for the losing party to pay the winner’s costs.
In the substantive decision handed down on 29th January the judge Mrs Justice Andrews did not accept that the law limiting civil partnerships to same sex couples interfered with the couple’s right to a private and family life. She stated:
“There is no evidence that they are subjected to humiliation, derogatory treatment or any other lack of respect for their private lives on grounds of their heterosexual orientation by reason of the withholding of status of civil partner from them.”
She went on to say that this couple had the option of getting married. Although the judicial review failed, permission was given to appeal to the Court of Appeal as it was deemed that the case is of wider public importance.
From the point of view of many family law practitioners, civil partnerships serve little purpose now that marriage is now available to same sex couples. This appears to be the thinking of Government as their stated position in the case was that civil partnerships are “likely to be abolished or phased out in a few years”.
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