It’s a fantastic victory for equality that gay couples now have the right to choose whether to enter a civil partnership or a marriage. And that’s absolutely how it should be. Shame the same can’t be said for heterosexual couples.
Couples can live together as cohabitees, although the law offers little protection to them in those circumstances in the event of separation, or they can choose to marry. Some couples don’t want to marry, don’t believe in the ‘religious’, ‘old-fashioned’, ‘out-moded or ‘patriarchal’ rituals associated with it. Marriage was defined in law in 1866 as “the voluntary union for life of one man and one woman to the exclusion of all others”. Some simply don’t believe in it, but are no less committed to their relationship. Yet ‘straight’ couples cannot formalise their relationship with a registration; you either marry and have the protection afforded by the law – or you don’t!
Tax breaks for civil partners and married couples
As well as tax benefits, married couples have an obligation on each other to make reasonable financial provision for the other during the course of the marriage and on its termination and each acquires certain rights of occupation and the right not to be evicted. A cohabitee gets neither of these things, but civil partners do.
The Civil Partnership Act requires a couple who register to be of the same sex, but not necessarily in a sexual relationship together, so presumably two same-sex friends who want to afford one another tax and legal advantages could register? The Equality Act says a person cannot be treated less favourably on the grounds of sexual orientation. So is the Civil Partnership Act, now that we also have the Marriage (Same-Sex) Couples Act, incompatible with Human Rights and the right to respect for a person’s private life which must be enjoyed without discrimination? Should the Civil Registration Act be changed so that heterosexual couples can register a partnership rather than having their only option as marriage? Or is it not allowed to prevent ‘abuse of the system’ by ‘straight friends’ entering partnerships for which the Civil Partnership Act was not intended?
There are lots of couples – gay and straight – who choose not to formalise their relationships with marriage, yet potentially quite a few straight couples who would wish to consider the tax and other advantages of registering their partnership as they did not wish to marry and they do not have that choice. In the event of separation, whether after a few yeas or 30+ they are left exposed financially, and possibly never realised that this was their position, believing that ‘common law’ would assist them.
Time for cohabitees to get legal rights?
I’ve been vocal for over a decade that cohabitees should be afforded the same rights as married couples. Whilst this still hasn’t come about (save for inheritance claims which can now be made by a cohabitee of 2+ years) it seems a kick in the teeth to those cohabitees who would wish to offer one another protection without having to marry, yet sadly I don’t think we shall see a change for full equality any time soon.
Kimberley Bailey
Divorce & Family Solicitor Bristol
