Amanda Wilson compares the different types of legal relationship available to couples following a case in England last week on civil partnerships.

Last week, Rebecca Steinfeld and Charles Keidan, from London lost their Court of Appeal case, in which they sought the right to be able to enter into a civil partnership, instead of a marriage.

The couple reject the traditional notion of marriage commenting that:-

“There is nothing wrong with it, but it just isn’t right for us, and isn’t for lots of other people. We see each other as partners – not as husband and wife – and we didn’t want all the social pressures and expectations that surround marriage, like the bride wearing white virginal dresses and being given away by her father.”

Instead, the couple wanted a civil partnership which is currently only available for same sex couples in the UK.

Therefore the couple launched legal proceedings against the UK government, arguing that they were being discriminated against because of their sexual orientation.

This appears to have been a difficult decision for the Court of Appeal to make. All three Judges accepted that there could be a potential breach of the couples’ human rights by not being permitted to enter into a civil partnership instead of a marriage.

However, the court felt that the issue was one for the government to address in terms of new legislation, although Lady Justice Arden did not consider that that was a good enough approach to address the discrimination faced by heterosexual couples, who would prefer a civil partnership to marriage.

The government are currently looking in to this matter and reviewing the number of civil partnerships, following same sex marriage being legalised in Scotland, England and Wales in 2014. With initial reports suggesting a 70% decrease in civil partnership as more same sex couples opt for marriage instead.

Currently more than 70,000 people have signed a Petition calling for civil partnerships to be open for all. However, the status quo remains at this time for heterosexual couples.

Whilst same sex couples have the option of entering into three legally recognised forms of relationship - marriage, civil partnership or cohabitation - for the time being, heterosexual couples simply have the option of marriage or cohabitation - with nothing in between.

It may of course be that the government ultimately decides to abolish the concept of civil partnerships, which would put both same sex and heterosexual couples on the same footing. Until then, it is worth summarising the differences between the three types of legal relationship:-

Married Couples

Strictly speaking, upon divorce, married couples are entitled to a fair share of the matrimonial property which has been built up during the period of the marriage up until the date of separation. The law does not actually provide that the assets will be split 50/50 on divorce, although often that will be the fairest method of division of the assets. Married couples also have rights on each other’s estate upon death automatically, known as prior rights.

Civil Partnerships

Civil partnerships confer upon a same sex couple virtually identical rights to that of a married couple. The only difference is that it is not legally classed as a marriage. Financially, exactly the same rights are conferred and the assets and debts are divided in the same way upon dissolution of a civil partnership as they are upon divorce. Same sex couples can opt to register a civil partnership, or from 2014 can opt to marry. It remains to be seen whether the government will allow civil partnerships to continue going forward and many believe this legal relationship could be abolished.

Cohabitation

In Scotland, cohabitants have been afforded legal status and protection since 2006, when the Family Law (Scotland) Act 2006 was introduced. This makes it possible for a cohabitant to make a financial claim following the breakdown of their relationship. It is important to be aware that whilst such a claim can be made, cohabitants have no automatic right to claim anything upon the breakdown of their relationship and they are not afforded the same level of protection as a married couple would be upon divorce. There is also a very strict timescale for making a financial claim and that must be made within one year of the date of their separation. Same sex and heterosexual cohabiting couples are treated in the same way from a legal perspective. Cohabitants are not automatically entitled to anything from their cohabitee’s estate on death unless provided for in a Will. If they die without a Will, they can make a claim on the estate but it must be made within six months of death.

Therefore, for any heterosexual couple who may be disappointed at this recent ruling, it is worth thinking seriously about their future, particularly when deciding whether to perhaps continue cohabiting or enter into a marriage. If the notion of marriage is one that does not sit comfortably with a couple, then they should be aware of the cohabitation legislation and should seek specialist advice on that from the outset, to ensure that they are aware of their rights and, what they can and cannot expect to receive in the event of a future separation. Although Rebecca Steinfeld and Charles Keidan are apparently considering an appeal against the Judgment, that could take a number of years to be determined.