For several years now same sex couples in the UK wanting to legalise their relationship have been given the choice between entering into a civil partnership or getting married. However, following a long-awaited change in the law, mixed sex couples looking to put their relationship on a legal footing will now also benefit from the right to choose between marriage and civil partnership.

Since 2nd December 2019, by virtue of the Civil Partnership Act (CPA) 2004, as amended, a new “civil partnerships for all” approach finally came into force.

What is the law relating to same sex couples?

At a time when same-sex couples were not legally permitted to marry, the Civil Partnership Act 2004 made it possible for gay men and women in the UK to enter into a legally binding union, similar in many ways to a marriage.

A civil partnership is essentially a legally recognised relationship between two people, where civil partners automatically have access to responsibilities and rights akin to those that arise for married couples, including tax and pension benefits, as well as an entitlement to the same inheritance rules as spouses.

In due course, albeit almost a decade on, the Marriage (Same Sex Couples) Act (MSSCA) 2013 went on to legalise same-sex marriage, thereby giving gay couples the same rights, benefits and entitlements as married heterosexual couples – as well as the choice between entering into a civil partnership and getting married.

What is the law relating to mixed sex couples?

In addressing the inequality of treatment between same and mixed sex couples, the fact that the CPA was not repealed when the MSSCA was enacted created a new and different imbalance insofar as the right afforded to same sex couples to choose between entering into a civil partnership or getting married was not extended to couples of the opposite sex.

By virtue of section 3(1) of the CPA 2004, as originally enacted, two people not of the same sex were not eligible to register as civil partners. The CPA was, therefore, explicitly and emphatically designed for same sex couples only.

It was not until a Supreme Court (SC) ruling in 2018 that the stage was set for legislative change so as to address this imbalance. In the landmark case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development, all five SC justices found that the prohibition against mixed sex couples from entering into a civil partnership was incompatible with the right to respect for private life under the European Convention on Human Rights.

In response, the new Civil Partnership (Opposite-sex Couples) Regulations 2019 expressly amend the eligibility criteria in the CPA 2004 to allow opposite sex couples to register civil partnerships under the law of England and Wales. This means that heterosexual couples may now also opt for civil partnership instead of marriage.

So what does the new law mean for mixed sex couples?

There are various reasons why a mixed sex couple may want to enter into a civil partnership as opposed to getting married, not least that marriage, as a historical institution, has certain religious connotations.

For many, marriage also no longer fits with modern day ideologies. In particular, it is commonly perceived as being steeped in patriarchal tradition, whereby women are “given away” by their fathers and promise to “obey” their husbands.

For those who object to marriage for these, or indeed any other reasons, civil partnership is an ideal way of legalising their relationship, providing similar financial and legal protection as that afforded to spouses.

By offering heterosexual couples a genuine secular alternative to marriage, the law may even encourage more couples to enter into a legally recognised relationship, paving the way for the new “modern marital-style union”, and thereby avoiding the legal pitfalls of the mythical common law marriage.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.