Outcome of current litigation to allow heterosexual couples to enter into civil partnerships?
What will be the likely outcome of current litigation to allow heterosexual couples to enter into civil partnerships?
There is currently a case before the Court of Appeal concerning the inability of heterosexual couples to enter into a civil partnership, an arrangement only available to same sex couples. By contrast, marriage is now available to both homosexual and heterosexual couples.
The Court of Appeal does not have the power to change the law, as they are bound to apply an Act of Parliament which very clearly limits civil partnerships to same-sex couples: the Civil Partnership Act 2004 defines a civil partnership as ‘a relationship between two people of the same sex’. What they are able to do, if they deem the legislation to be in breach of the European Convention on Human Rights, is to issue a ‘declaration of incompatibility’ pursuant to the Human Rights Act 1998. This would alert Parliament to the fact that the law was in breach of human rights, and provide considerable pressure for Parliament to change the law.
On its face, the law is in breach of Article 14 of the ECHR (which prohibits discrimination on any ground). However, the European Court of Human Rights has previous held that the denial of marriage rights to homosexual couples not to be in breach of the Convention , so it is likely that, analogously, denial of civil partnership rights to heterosexual couples will also not be in breach of the Convention. It is likely, therefore, that no declaration will be issued.
Table of Cases
Schalk and Kopf v Austria, Application no. 30141/04
Table of Legislation
Civil Partnership Act 2004
Human Rights Act 1998
Khomami N, ‘First heterosexual UK couple in civil partnership urge government to end ban’, (Guardian, 21 October 2016) accessed 20 October 2016