In a landmark decision which will put intense pressure on the Government to reform the law, the Supreme Court has declared that the unavailability of civil partnerships to heterosexual couples is incompatible with human rights.
Whilst the institution of marriage is now available to both same-sex and opposite-sex couples, the Civil Partnership Act 2004 continues to provide that only the former may enter into a civil partnership. It was that inequality of treatment which prompted a heterosexual couple who had deep-rooted moral objections to marriage to launch a judicial review challenge.
They argued that their inability to enter into a civil partnership amounted to a breach of Article 14 of the European Convention on Human Rights (ECHR) – which outlaws discrimination – together with their right to respect for privacy and family, which is enshrined in Article 8 of the ECHR. Their arguments were, however, rejected by the High Court and the Court of Appeal.
The Government conceded that there is an inequality of treatment between same-sex and opposite-sex couples in the context of civil partnerships and that the couple’s human rights were engaged. It argued, however, that, in the light of evolving social attitudes, it was entitled to take time to consider whether that inequality should be resolved by abolishing civil partnerships or making them available to both same-sex and opposite-sex couples.
In upholding the couple’s appeal, however, the Supreme Court noted that, although it was reasonable to allow time for the Government to reflect, the situation of inequality had persisted for several years and there remained no end point in sight. Tolerance of discrimination for an indefinite period, whilst the Government pondered how to end it, could not be characterised as a legitimate aim or a justification for human rights violations.
The interests of the community in denying civil partnerships to heterosexual couples were unspecified, whereas the consequences for such couples were far-reaching. Amongst other things, a couple could suffer serious fiscal disadvantages if one of them died before their relationship was formalised. The Court declared that Sections 1 and 3 of the Act, to the extent that they preclude opposite-sex couples from entering into civil partnerships, are incompatible with Article 14, taken in conjunction with Article 8, of the ECHR.