 Hello, I'm Dr Andy Hayward and I'm Associate Professor at Durham Law School. I'm also a researcher in adult interpersonal relationships, and that's the subject of this presentation that I'll be giving today for the Inside Family Law series. I'll be exploring the evolution of civil partnerships in England and Wales, which as you know is a fast-moving and topical area of modern family law. In particular, I want to trace the evolution of civil partnerships from an institution exclusively available to same-sex couples to one that is now accessible by mixed-sex couples. In this presentation, I want to look at this unique evolution of civil partnership in England and Wales, particularly when it's noted that our reform strategy departs very much from that adopted in other European countries. After tracing the evolution, I want to look a little bit at the reform discourse and some of the claims that have been made as to the transformative potential of equal civil partnerships today. After that, and because this area is very new, I want to look at some of the future directions. What do we need to look out for going forward? What are the interesting areas for further study when it comes to the future of civil partnerships in this jurisdiction? And at the end, I'll have a slide that lists some of the references to sources that I've mentioned in this presentation. So let's focus then on the civil partnership act 2004. Prior to this point in time, same-sex couples had limited legal protections. In some contexts they were recognised, for example in the immigration context, succession to a tenancy and domestic violence context, they did receive some legal recognition. Curiously, they were actually able to adopt a child before they were recognised as a family in law. And that recognition via formal status came through the civil partnership act 2004. This particular act gave civil partners a registration regime that conferred upon them essentially all the rights and legal responsibilities of marriage. It was what's termed a functional equivalent to marriage. Now at this point in time there were debates as to making this particular scheme one open to both mixed and same-sex couples. But it was felt that mixed-sex couples did not face the same disadvantage and detriment as same-sex couples because after all they could actually marry. Whereas same-sex couples at this point in time were denied access to marriage and had no method to formalise their status in law. Now once the regime was introduced in December 2005 it proved quite popular. There was a surge of registration coinciding with Christmas and then in 2006 onwards we see the first representative year of statistics with around 14,000 registrations between same-sex couples. From that point onwards we then start to see around 6,000 registrations per year. Now I want to focus a little bit on some of the key debates and contradictions surrounding the civil partnership act. The introduction of civil partnerships was to an extent contentious. There were some that believed that it was a very positive development. Stonewall for example, the LGBT plus activist group, talked about civil partnerships being this historic step forward showing that Britain had become this tolerant 21st century country. But others criticised it by saying that it was a concession, it wasn't same-sex marriage, it was a substitute for marriage. And indeed Peter Tatchell lamented the fact that the government had not gone further and just legislated for gay marriage. But arguably at this particular point in time it would have been too controversial to do. So for some same-sex couples it became a painful compromise between genuine equality that would flow from marriage and no rights at all. Now within these debates we also see some contradictions. Some people welcomed civil partnerships because it was different. It was something that was different to marriage. It used a different language. For example civil partners dissolved their relationship as opposed to divorce. And by using this different lexicon it showed that it was distinguishing itself from marriage. It was something that was unique. And at the same time we find people saying that well essentially it was marriage because it conferred virtually identical legal consequences. It was just a semantic change. Indeed other people noticed the fact that it was modelled on civil marriage. So civil partnership isn't really this blank canvas. It really was a cut and paste from civil marriage. But we know that when it was introduced it did precipitate debates that led to the ultimate enactment of same-sex marriage via the Marriage Same-Sex Couples Act 2013 that came into force in March 2014 in England and Wales. Now in terms of the debates surrounding same-sex marriage we see that civil partnerships didn't really feature prominently. The government was very clear and definite that they wanted to secure same-sex marriage at all costs. But it overlooked really the problems that were associated with civil partnerships. Indeed there was a greater fixation in the Marriage Same-Sex Couples Act and the debates leading to that with protecting religious organisations from being forced to have to celebrate the same-sex marriage. Civil partnerships really didn't feature much at all. And this was really shown by section 15 of the Marriage Same-Sex Couples Act that commanded and compelled the Secretary of State to conduct a review of civil partnerships so as to assess their future. Now in terms of what we could have done with civil partnerships there were various options and comparative family law was very helpful if we wanted to determine a way forward. So traditional options would be simply to phase out civil partnerships. So phasing out same-sex only civil partnerships so that adult relationships can be formalised only in one manner and that would be marriage, marriage that is available to mixed sex and same-sex couples. And we see this clearly with the Scandinavian Nordic countries. So Denmark leading the way. Denmark introduced registered partnerships in 1989 and then phased out that regime when it enacted same-sex marriage believing that the duplicate wasn't really needed when the original was now available to all couples. Another option would be retention of the existing equal civil partnership regime. So Netherlands for example introduced a registered partnership regime that was available to both same and opposites or mixed-sex couples. It then became the first country in the world to legislate the same-sex marriage. And what they did here was retain the existing civil partnership regime and thereby create equal marriage and equal civil partnership. And then a new variation we see recently from Austria. So here what the Austrians did was create same-sex marriage and then at that same time extend their same-sex only civil partnership so as to make it an equal civil partnership regime. Now England and Wales often because it likes to do things differently decided to reject all of those strategies. It essentially said that we wanted to have same-sex marriage at all costs. We don't want to really think about civil partnership reform. And so what they did was legislate for same-sex marriage and retained same-sex only civil partnerships. Now this created a real key issue for this jurisdiction because as a matter of equality and non-discrimination we created a position of asymmetrical access where same-sex couples were able to formalize their relationship through either civil partnership or marriage and for mixed-sex couples they were limited to marriage. So this created quite a bizarre piece of a bizarre structure for English manual. Now Steinfeld litigation was an important part of this puzzle. So Steinfeld litigation as I'm sure you are probably aware of involved a human rights challenge by a mixed-sex couple who had ideological opposition to marriage. They didn't feel that marriage was representative of their relationship and they joined with this equal civil partnership campaign that challenged marriage on the basis that it was patriarchal, heteronormative and it had all this baggage of the legacy of marriage that we saw in the past. So the Steinfeld litigation involved a claim brought by a mixed-sex couple with children. They wanted to have a civil partnership but refused a civil partnership on the basis of sections 1 and 3 of the Civil Partnership Act that required civil partners to be of the same sex. They then challenged that refusal and the case went all the way up to the Supreme Court and in particular they were using Article 8 and 14 of the European Convention of Human Rights. Article 8 protecting the right to respect for private and family life and Article 14 being a prohibition on discrimination. So their argument was that by denying them the ability to formalize their status that it was an interference with the ECHR Convention rights. The Secretary of State's response to this said initially that well they hadn't really suffered a detriment at all because they could essentially marry, they could have the most perfunctory administrative form of civil marriage and access legal protections and rights. What then happened is the Secretary of State changed their position. So in the course of the litigation then accepted that the position was in fact discriminatory but that it was justified. And the key element of that claim was that the government needed time to review the future of civil partnerships. After marriage equality was created they needed time to assess what we're going to do with civil partnerships whether or not indeed there was uptake of civil partnerships by same sex couples now that they could actually enter a same sex marriage. In terms of some of the earlier litigation I'm not going to focus on that too much. In the High Court the claim fell at the first hurdle. Mrs Justice Andrews believed the claim didn't even fall within the ambit of Article 8 and applied as Claire Fenton-Glinn has argued an erroneous reading of the ambit test requiring that there had to be some disadvantage or detriment before Article 8 could be opened up for the purposes of joining with Article 14. That particular interpretation was then reversed by the Court for Appeal and in a 2 to 1 majority the Court accepted that the position was discriminatory but felt that the discrimination was in fact justifiable a 2 to 1 majority with Lady Justice Arden as she then was in the minority. It then goes to the Supreme Court and in a unanimous decision the Supreme Court provides a very bold and striking decision. Lord Kerr gives the main judgment and completely dismantles the Secretary of State's argument. Now the case really is only concerned with justification really whether or not the discrimination that was accepted was justified and by applying the test for justification and the proportionality analysis it fell at every single hurdle. In particular Lord Kerr said that the Government knew that it was creating a position of glaring inequality. He also at times made some rather pointed remarks as to how the Government approached human rights concerns with a degree of insouciance essentially saying that Government didn't really care turned a blind eye to the fact that we clearly had an interference with Convention rights. Also the Government's argument for more time was Lord Kerr terms it the indulgent of time was rejected by saying that there were many other less intrusive means that could have been taken by the Government when it comes to the reform of civil partnership that would have created less of an interference with the Convention rights. For example the all registrations of civil partnerships could have been paused the moment the same sex marriage was created so that there would be no detrimental impact created. Now what could have happened in the Supreme Court would be the use of Section 3 of the Human Rights Act 1998 to reinterpret sections 1 and 3 of the Civil Parture Act so that they would be compatible with the Convention. This would be using the interpretive obligation but it's unlikely that this would have actually ever worked partly because that would involve quite a big change and arguably could have been seen as going against the grain of a statute that was conceived for same sex couples only. So what instead Lord Kerr did was issue a declaration of incompatibility under section 4 of the Human Rights Act instead. Now as you know declarations do not command action they do not force the Government with Parliament to add but we also should remember that often they are received and they're not ignored by the Government. So as you'll see from the next slide that that call to action was in fact heard and we see this through later statutory intervention. But before I leave the Steinefeld case I want to mention a few interesting aspects. The first is quite an interesting case because it's often misunderstood. The media believed that it granted the Steinefeld couple access to a civil partnership but it did no such thing. There was no right to a civil partnership created for mixed sex couples. It merely said the position was incompatible with human rights legislation. And the other issue is that it's not really a family law case it actually is a pure human rights case because the policy as to whether or not this Government should extend or indeed retain civil partnerships was not actually addressed. What Lord Curse said was the moment that we introduced same-sex marriage in March 2014 there should have been either extension or phasing out of civil partnerships. By keeping the status quo you have then created a position that was incompatible with the convention. So there was no real discussion of the policy debates and as we see from Lady Hale speaking extra judicially she talked about how whenever we have discrimination on a suspect ground the options are we level up we just create marriage for everyone or we level down whereby we would extend civil partnerships to mixed sex couples. Now if we look then at the timeline we introduced civil partnerships in 2004 as a same-sex only entity we then legislate for same-sex marriage conferring two options to same-sex couples and one to mixed sex couples and then the next part of this puzzle is the civil partnerships Marriages and Deaths Registration Act 2019 and this particular act had various different iterations Tim Lawton MP had places into Parliament multiple times in multiple parliamentary sessions in various different guises but after a lot of modification and to and fro in Parliament we get this particular piece of legislation and Section 2 enables the Secretary of State to create mixed sex or opposite sex civil partnerships by way of regulations and they are ultimately created towards the end of 2019 and they came into force on New Year's Eve So let's have a little bit of a closer look at equal civil partnerships being achieved and those regulations So sections 2 and 5 of the Civil Partships Marriages and Deaths Act provide the basis for the regulations Now the regulations largely transpose the existing regime for same-sex couples onto mixed sex couples and this is hardly surprising I think for it to try and create something different or to align mixed sex civil partnerships more with marriage would have caused a lot of problems and consternation particularly because of the campaign for mixed sex civil partnerships was predicated on the idea that they were fundamentally different to marriage and in many ways in opposition to marriage the same-sex regime so nullity provisions for example obtaining a decree of nullity for non-consumption or willful refusal to consummate those are equally excluded from mixed sex couples and as they are from same-sex couples civil partners We then see religious protections also being created and this is quite curious seeing as civil partnerships were conceived as a secular entity from 2010 onwards civil partnerships could actually be performed on religious premises provided that they consent but from their inception they really were viewed as more of a civil or secular entity so it's quite odd that we see strong religious protections coming in and these protections through the regulations involve a non-compulsion clause so a religious member is not going to be compelled to officiate a same-sex civil partnership a mixed-sex civil partnership or both if they do not want to do so Have a look at the work of Russell Sandberg on this who has researched this idea and the way which the religious protections are actually quite heavy-handed but they largely echo those religious protections that were created around the time of same-sex marriage the so-called quadruple lock We then have reciprocal recognition of overseas mixed-sex civil partnerships so partnerships conducted overseas will then be recognised in this jurisdiction and then also there have been some amendments to gender recognition so these regulations permit the full change of gender without the need to dissolve a union provided that the other civil partner consents but at the same time whilst generally we see transposing of the existing civil partnership act there are some new additions and some distinctions we have a new part S presumption that's created for mixed-sex civil partners whereby a male civil partner is presumed to be a father of a child born to that union just like a husband is presumed to be the father of a child born to marriage and then we also have some distinctions created in relation to conversion so at present only same-sex couples can actually convert a civil partnership they can only convert a civil partnership to marriage they can't convert a same-sex marriage to a civil partnership at present mixed-sex couples have no method of conversion and that area is currently being reviewed now I want to look more closely at some of the reform discourse and some of the claims that have been made in the media coverage and also the parliamentary debates as to civil partnerships and in particular I want to try and do a bit of myth-busting partly because we have seen some rather erroneous and inaccurate claims being made so one idea is that civil partnerships can challenge patriarchy and they challenge heteronormativity and there's a fantastic piece by Joe Miles and Rebecca Probert on this in the CFLQ that I've put in the resources at the end of this presentation so some would argue that civil partnerships are beneficial because they challenge patriarchy marriage is viewed as a patriarchal institution and they do not want any involvement in that institution and in many ways you could say marriage does have that baggage think about ceremonial rights the idea of the father of the bride handing the bride over to the groom think about some of the passages that often said in the marriage ceremony itself civil partnerships are something that is different to that the reason being as one judge called them they're a construct of statutes they don't have the same social script so they're the same legacy of marriage now there's something to that but I think we need to be quite careful of those claims and drill down into them a little bit more so if we start from first principles for example I think we have to ask whether or not marriage today remains patriarchal for some individuals they will accept that it is and we can't change that but others would say and it has in fact transformed itself and evolved so the idea of the bride having to obey the husband of the groom in the marriage ceremony that particular passage is largely excised from the marriage ceremony today also if it is patriarchal Joe Miles and Rebecca Probert have made the valid point that well shouldn't the Steinfeld couple or anyone campaigning for equal civil partnership actually just marry because by entering marriage they could actually change the institution from within and make it not patriarchal and make it more of a vision that they wanted to be the difficulty I have with that viewpoint is that this is just simply not an option couples who have strong ideological opposition to marriage are just simply not likely to engage at all with that institution and therefore they're more likely to cohabit now what about whether or not equal civil partnerships are perhaps more egalitarian now there's certainly something here the lexicon of civil partnerships is neutral so we're not talking about husband and wife and slotting people into pre-ordained roles created by the state with social expectations instead we're talking about partners which suggest that there is a more egalitarian flavour to civil partnerships it has a different signalling function but we need to then look at this a little bit more now what might happen is the anti-egalitarian rhetoric that we see or rather the egalitarian rhetoric that we see might phase out in a few years time because once the duster settled civil partnerships have actually been fully recognised in this jurisdiction and then couples have a real choice between a civil partnership or a marriage are we going to see civil partnerships kind of aping or mimicking marriages to some extent couples who are not so conscious of the battle and the motivations behind equal civil partnerships choosing a civil partnership and then perhaps emulating some of the problematic norms and traditions that we see associated with marriage what about also the lived realities and I think one area that we really need to look at here would be the division of assets now in order for you to petition for a dissolution of a civil partnership you have to be in a civil partnership for one year that one year is soon going to be up for mixed sex couples and therefore there is going to be a potential for dissolutions and following from dissolution applications to divide assets now here what we have is a battle between gender norms gender inequality property owning and power and all of these things are going to actually be exposing perhaps some inequalities when it comes to the division of assets between civil partners we see this quite clearly through the work of Sharon Thompson who has looked at pre-nuclear agreements and noted that they are actually an area where we can see gender imbalance and inequalities coming to the fore now we could argue that equal civil partnerships might not emulate this and that the division of assets is not going to see these gender inequalities come to fruition partly because these couples predicated their relationship on more than egalitarian footing but as I said before 20, 30 years down the line are we going to see gender norms creeping back into the division of assets and this will be particularly interesting when we note that for same-sex civil partnership there are relatively few reported cases of division of assets and cases that we have seen Lawrence and Gallagher for example that the division of assets is identical to that of division of assets between spouses so that's one area that we're going to have to watch whether or not civil partnerships are actually going to stay true to that egalitarian promise we then want to look at redefining commitment and the capacity for personalisation now will civil partnerships create a lighter form of commitment or elusive form well the answer is in a legal sense no the reason being that civil partnerships are identical to marriage in terms of legal consequences similarly when it comes to personalisation we do see that the ceremonial rights of civil partnerships seem to be different if we look at newspaper reports of civil partnership ceremonies we often see that the ceremonies are much more stripped back they're more informal they seem to be more relaxed than say the pub that we normally associate with marriage but in terms of personalising it by way of legal rights and protections there isn't really any scope to do this whatsoever it is a pre-ordained package of rights equating to that of marriage and it's not like for example the French PACs Belgium civil partnership or registered partnership region where the parties themselves can create something that is very individualised and very bespoke in terms of what they want out of this particular union and the other myth that we seem to have is that equal civil partnerships are going to help cohabitants now this is something that I've challenged in my own writing but you see it quite clearly in terms of the media coverage and also the government announcements they have been positioning equal civil partnerships as a solution to the fact that we have 3.5 unmarried cohabiting couples in the UK and by granting this new status that we're going to be able to bring that number down and encourage more people to formalise the difficulty really here is that equal civil partnerships will be attracted to some couples but clearly not all and therefore what we really need is a default system of cohabitation protections a baseline layer of protections that couples can then reject if they want the scheme to dis-apply to them so equal civil partnerships will be certainly attracted to certain types of cohabitants often legally rational ideal of couples who understand the legal position they're in but often they're not going to be attractive to a wider range of cohabitants many of them laboring under the common law marriage myth that by merely living together they generate entitlements and protections so where next for civil partnerships where do we need to go well first of all we need some statistical data on equal civil partnerships we have one piece of data which was recently released and that is on the 31st of December last year 2019 we had 167 mixed sex civil partnerships entered into but we don't have any data for 2020 so we need to really get a sense of what is the uptake for equal civil partnerships going to be like the Government Equalities Office did an impact assessment at the time of creating the regulations and they said that between 2020 and 2029 there could be as many as 84,000 registrations or as few as 2,600 so at the moment we simply don't know how popular mixed sex civil partnerships are going to be now we can have a look at general civil partnership trends and if you look at the chart from the Office of National Statistics on the slide we see that in 2006 we have the boom in registrations around 40,000 we then have a period of it plateauing of around 6,000 registrations on average each year and then a dramatic drop following the enactment of same sex marriage in 2014 now from 2014 onwards when same sex couples exclusively were able to register civil partnerships we're starting to see a very very slight increase in civil partnership registrations now clearly following the enactment of equal civil partnership there's going to be a much more dramatic increase in civil partnership registrations but we need to disaggregate those stats we need to look at what is the position of same sex civil partners what's the position of mixed sex civil partners there's going to be a little bit about the impact of Covid too because Covid had a pausing effect on registrations this year for both marriage and civil partnership when the lockdown was initiated in March civil partnership registrations were paused and so that will have to be factored into the statistics of 2020 we then want to look at some of the demographics as well so the age of registration of civil partnerships now if we look at the demographics it's quite interesting for same sex civil partnerships what we tend to find is that older people tend to go for a civil partnership whereas younger same sex couples tend to marry so the average age for a same sex civil partnership registration in 2019 was 51.6 for women we then see that in 2019 one in five civil partnerships registered were two individuals aged 65 and over so is that pattern going to map on to mixed sex civil partnerships or are we going to see a younger cohort access those so we need to have a more sophisticated breakdown of these statistics we need to explore a little bit more as to the lived experiences too so here we need empirical and social legal analysis to get a sense of the reality of living as a civil partner and whether or not it is different or distinct from marriage so in conclusion civil partnerships are clearly going to be attractive for some couples and in my own research I have supported the campaign for equal civil partnerships but we do have to be a little bit careful in relation to the claims made and to their so-called transformative potential they are certainly not a solution for the absence of default cohabitation protections in England and Wales one thing that will be particularly interesting to see is whether or not we are getting an ideology of civil partnership being created now Nicola Barker's work on same sex marriages particularly informative here the lens of legal consequences structure an ideology now if by transposing that civil partnership we clearly have consequences we know the consequences of civil partnership and we also know the structure but as of yet we don't really have a sense of an ideology forming and it would be interesting to see what type of motivations are driving people to enter civil partnerships as opposed to marriages now also we have a new position created early on this year whereby there is a choice couples are no longer forced to take a particular formalisation that they didn't want because of the past they now have an ability to enter a particular type of marriage if they wish or a particular form of civil partnership if they wish so that then leads us to the debate as to whether or not we are going to see greater innovation between marriage and civil partnership so at the moment only time will tell it's a new innovation but I have to say ultimately a welcome one