KINGSLEY NAPLEY'S LGBTQ BLOG SERIES 2020

“Love comes first”: The journey to equal partnerships and marriage in the UK

11 March 2020

“Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced.”

Lord Nicholls in UK House of Lords case Ghaidan v Godin-Mendoza

On the eve of the new decade, 31 December 2019, the first mixed-sex couples officially entered into civil partnerships, granting them the same legal protections as in marriage.
 

Almost 16 years after same-sex couples championed for and won the right to enter into civil partnerships in 2004, the road to equal partnerships and marriage in the United Kingdom seems to have come full circle.

As a part of Kingsley Napley’s LGBTQ+ blog series, and in honour of all those who fought for their right to put love first, we trace the legal journey of marriage and civil partnership equality in the United Kingdom.

1. Mixed-sex Marriage

Prior to 2014, marriage in England and Wales was defined in Hyde v Hyde and Woodmansee [1886] as the ‘voluntary union for life of one man and one woman, to the exclusion of all others’. This definition, coined by Lord Penzance, was later enshrined in the Matrimonial Causes Act (MCA) 1973 section 11(c), with the express provision that a marriage is void when the parties are not respectively male and female.

Despite on-going grassroots activism, campaigning, and public pressure from the LGBTQ+ community and allies, same-sex couples could not gain legal recognition for their relationships. For context, it is important to remember that “homosexual acts” between men could lead to execution up until 1861, and remained unlawful until 1967[1]. Additionally, it was not until the Sexual Offences Act 2003 that the anti-gay sexual offences of “gross indecency” and “buggery” were repealed and removed from statutes.

 

2. Same-sex Civil Partnerships

2004 was a breakthrough year. The landmark House of Lords judgment in the case of Ghaidan v Godin-Mendoza [2004] , helped bolster the then long-running campaign by the LGBTQ+ community towards partnership equality.   

Mr Mendoza lived with his partner Mr Wallwyn-James who had a statutory tenancy in London. When Mr Wallwyn-James died, his landlord sought possession of the flat.

While the county court judge in Medoza followed the ruling in Fitzpatrick v Sterling Housing Association Ltd [2001] in awarding Mr Mendoza the assured tenancy, on appeal, the House of Lords went a step further and made the Rent Act 1977 compatible with the Human Rights Act 1998 by using  the interpretive provision in section 3 to say that same-sex couples could also count as “spouses” under paragraph 2(2) of the Rent Act.

Then, later that year, the pioneering Civil Partnership Act 2004 (CPA 2004) for the first time created a legal framework that recognised same-sex relationships. The first civil partnership ceremony took place on 5 December 2005 in West Sussex[2].

While same-sex civil partnerships were a significant and important milestone in the journey towards LGBTQ+ equality in the UK, they were, in reality, a political compromise that allowed the government to grant same-sex couples legal protections akin to marriage, while appeasing a society still conflicted over acknowledging full marriage equality. Furthermore, many in the LGBTQ+ community felt that introducing a ‘second-class’ of legal partnerships for LGBTQ+ individuals upheld the discriminatory definition of marriage as an institution reserved exclusively for heterosexual individuals.

 

3. Same-sex Marriage

In 2013, David Cameron’s government passed the Marriage (Same Sex Couples) Act which introduced marriage for same-sex couples in England and Wales. Same-sex marriage was passed by the Scottish Parliament in February 2014 and became law on 16 December 2014.

The legislation also allowed same-sex couples to convert their civil partnership into marriage and for transgender individuals to change their legal gender without necessarily having to end their existing marriage. The first same-sex marriage ceremonies took place in England and Wales on the 29 March 2014.

Stonewall’s then acting chief executive, Ruth Hunt stated that this was, “a momentous day for England and Wales, as the first same-sex marriages mark[ed] full legal equality for lesbian, gay and bisexual people. The first weddings will send a powerful message to every person in Britain and around the world that you can live and love as you choose, regardless of your sexual orientation.”

After a long and high profile campaign, MPs backed amendments in July 2019 which required the government to change abortion laws and extend same-sex marriage to Northern Ireland if devolution was not restored by 21 October 2019. From 13 January 2020, same-sex couples were allowed to register to marry in Northern Ireland, and the first ceremonies took place in February.

 

4. Mixed-sex Civil Partnerships

When same-sex marriage was legalised in England, Wales and Scotland, civil partnerships also remained an option available to same-sex couples to legally formalise their relationships. Deciding that further investigations were required, Parliament at this time decided not to abolish civil partnerships or extend them to mixed-sex couples. This created an imbalance of rights as the only option available for mixed-sex couples to formalise their relationships legally was to marry.

As a part of the 3.3 million unmarried heterosexual couples who are currently co-habiting in the UK, Rebecca Steinfeld and Charles Keidan believed that the traditional institution of marriage conflicted with their own ideologies and values. Seeking legal protections for their relationship (it should be noted that “common-law marriage” does not exist in the UK), the couple attempted to legally formalise their relationship by way of a civil partnership at Chelsea Town Hall, but were refused.

By way of a judicial review, Steinfeld and Keidan decided to challenge the Secretary of State’s on-going decision not to change the remit of civil partnerships by extending them to mixed-sex couples (for a full outline of this case, please see “Incompatible with equality? The Supreme Court rules in favour of civil partnerships for all”).

The main issue for the court to consider was whether preventing mixed-sex couples entering into a civil partnership breached the appellants’ rights under article 14 (protection against discrimination) in conjunction with article 8 (right to respect for private and family life) of the European Convention on Human Rights.

In the first instance, the High Court dismissed the appellants’ claim. The Court of Appeal then agreed that the appellants’ rights under article 8 and 14 were breached, but concluded that the breaches were justified in order for the government to consider the impact of same-sex marriage on civil partnerships.

Finally, the Supreme Court allowed the appeal, confirming that preventing different-sex couples from entering a civil partnership was discriminatory and unjustified. As a result, the Supreme Court made a declaration of incompatibility in regards to sections 1 and 3 of the Civil Partnership Act 2004 (to the extent that they exclude same-sex couples from entering into civil partnerships).

Following this ruling, former Prime Minister Theresa May, announced that the law on civil partnerships would be amended following Rebecca Steinfeld and Charles Keidan’s win in the Supreme Court in June 2018.

The Civil Partnership (Scotland) Bill is currently making its way through the Scottish Parliament to make mixed-sex partnerships legal, while in Northern Ireland, the law that required the government to legalise same-sex marriage last month also required it to extend civil partnerships to same-sex couples.

 

Further Information

Lawyers from Kingsley Napley are regularly blogging about a range of legal issues, including public law matters and the impact of Brexit. Follow our Public Law blog for the latest commentary.

Should you have any questions about Judicial Reviews or any of the issues covered in this blog, please contact Sophie Kemp, Sameera Abdulrehman, or a member of our Public Law team.



[1] The 1967 reform was only extended to Scotland in 1980 and to Northern Ireland in 1982. These reforms did not apply to the UK armed forces or merchant navy, where sex between men continued to be a criminal offence until 1994.

[2] There are parallel provisions in Scotland and Northern Ireland.

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