The Supreme Court in London has unanimously ruled in favour of a heterosexual couple entering into a civil partnership as opposed to a marriage, stating that the Civil Partnership Act 2004, which only applies to same sex couples, is incompatible with the European Convention on Human Rights.
The decision is set to impact modern family life and leading UK family lawyers have reacted to the judgement.
Welcoming the ruling, Charmaine Hast, partner and head of family at Wedlake Bell, said: "The Supreme Court has decided it is still appropriate, despite Brexit, to consider Article 8 of the European Convention on Human Rights. What is most satisfying about the judgement is the human rights have triumphed despite England and Wales having a Human Rights Act 1998 which makes the principles embryonic."
Michael Gouriet, a partner in family law at Withers, also welcomed it but cautioned that whilst "today's decision is a healthy sign that our judiciary continues to act to keep the legislature in check, but the Supreme Court's decision does not oblige the government or Parliament to do anything.
"How many couples will, in reality, be affected by this judgment and by any swiftly passed Act of Parliament, either to abolish civil partnership altogether or to open it up to different sex couples? Comparatively few," he suggested.
“Whether or not the government now decides to extend civil partnerships to different sex couples, unless and until it also grasps the nettle of much needed law reform for all unmarried couples, unfairness will prevail.”
Toby Hales, a partner in the family team at Seddons, said the court was likely to rule this way as "the existence of discrimination would have been obvious to a first year law student, and the government has now lost control of the way forward.
"We will now see whether there is any significant take-up of civil partnership among heterosexual couples who want to create a legal basis for their relationship but not be formally married. It is, arguably, another blow to the institution of marriage, but one that could so easily have been avoided.”
Jo Edwards, head of family at Forsters, said the case highlighted the "shocking lack of rights for those who cohabit without marrying in England and Wales. There is a lack of legal protection for cohabiting couples if their relationship ends through separation or death.
However, Ms Edwards added that currently there was "no sign of Parliament legislating for the growing number of people in England and Wales who often sleepwalk into legal difficulties ignorant of their lack of rights at the end of a relationship.”
Alexandra Bishop, a family lawyer at Kingsley Napley LLP, also commented: “The law has upheld common sense and we may finally be on the road to much needed family law reform that accommodates modern families and relationships. However, this decision may not be the end of the fight and campaigners will need to continue to lobby government for law reform to open up civil partnerships for all couples rather than to phase them out completely.”
Hazel Wright, partner in family law at Hunters Solicitors, believed that any reform would take time: "If the UK is to abide by this ruling, the law will have to be amended. On occasion, we must remember, it can be slow to act where there is political or other meaningful opposition.
"It is unlikely that Parliament would legislate soon for what is such a major change, given its already busy programme. Legislation would be necessary. However, all must recognise that there would be significant opposition, for example from the Church."
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