Author: Martine Hardwick | Year and BULR role: Lecturer in Law, PhD Candidate
On 31st December 2019, Champagne will flow freely in England and Wales for opposite sex couples who will finally be able to register their civil partnerships after the long campaign led by Rebecca Steinfeld and Charles Keidan. Up until now, civil partnerships were not available for heterosexual couples. It was something reserved for same sex couples. This will change on 31st December 2019, signalling celebrations amongst couples of the opposite sex. However, the mood will still be low amongst cohabitants. Despite longing for more protection and fairness from the law, co-habiting couples will not be presented with the opportunity to celebrate on New Year’s Eve as they will still be bound by the strict rules of formation and dissolution which mirror those of marriage.
The Civil Partnership Act 2004 was enacted to enable same sex couples who could not marry but wished to commit to each other in the way married couples do, to have access to responsibilities and rights akin to those which arise on marriage. It was a huge step forward for same sex couples although referred to as a mere “consolation prize” in Wilkinson v Kitzinger (2006). It was not until 2013 that the (Same Sex Couples) Marriage Act finally brought equality amongst all sex couples.
Whilst hailed as a victory, the 2013 Act however proved more advantageous to same sex couples who could then choose between marriage or civil partnership – a choice not open to heterosexual couples. May be, Civil Partnerships could have been abolished at that time; instead it led to a feeling of inequality of treatment amongst couples like Steinfeld and Keidan (2017), a heterosexual couple, who, because of their deep-rooted and genuine objections to marriage, were still not able to register their relationship as civil partners to each other because they were not of same sex. Their Supreme Court win in 2018 eventually led to secondary legislation being approved in the House of Lords on 5th November 2019 and will become law on 31st December 2019.
This recent change to the law will undoubtedly spark celebrations on New Year’s Eve as heterosexual couples make their way to the registry office for registering a Civil Partnership for the first time in history.
What about cohabitants? Should they celebrate or commiserate on New Year’s Eve?
Cohabitants are the most vulnerable and fastest-growing type of family in the UK in the 21st century. Considering their relationships are the most likely to breakdown at a time when they are usually parenting young children, they should be given the opportunity to have the legal redress they deserve to avoid the harsh consequences they endure on separation. If they are not ready to marry or make the choice not to marry because of the constraints of the law or the fear of committing to too many obligations, cohabitants are not going to be attracted by a Civil Partnership which offers the same complexities as marriage.
The whole point of Civil Partnership is that it should be easy, but it is not. In fact, it produces the same challenges to those in a marriage. This was highlighted in the case of Owens v Owens (2017) when the Supreme Court ruled in July 2018 that Mrs Owens should remain wrapped up in a loveless marriage for another 5 years as she did not pass the test for “Unreasonable Behaviour”.
Therefore, even if the good news on New Year’s Eve are a cause for celebrations for some couples, is it not really a missed opportunity for cohabitants? Or to frame it differently, how could Civil Partnership, in its current form, attract cohabitants who wish to be legally recognized but without the burden of long- established rules?
Bonjour Le PACS?
Looking at the popularity of the Pacte Civil de Solidarité (PACS) in France, it seems as if this could be a very suitable option to bridge the gap between marriage and cohabitation.
Le PACS is a civil union which was created in 1999 to bring equality between same sex and different sex couples. It is simple, cheap, clearly explained and fair. This is equality from the beginning. Its supporters welcomed the reforms of la loi du 23 juin 2006 (the law of June 2006) which simplified the system by putting an end to the presumption of “indivision” (shared assets) in favour of “séparation des biens” (separation of assets) and giving parties the choice to contract how to hold their assets.
Unlike the complexities of Civil Partnership, it is quick. The parties can choose to register Le PACS at the “mairie” (registry office/townhall) of their residence where “le maire” (mayor) who, after checking the paperwork, will return the signed joint declaration to the parties with a registration number. Alternatively, the parties can register with their “notaire” (notary) if they wish to have a convention drafted at the same time.
Le PACS is also a cheap option. It does not cost anything if registered at the “mairie” and is very affordable if certified by the “notaire”.
Finally, the termination of the PACS is as simple as the registration and even better, it can be done jointly or unilaterally without the need to fabricate lies, find fault or experience lengthy acrimonious damaging and expensive litigation as for divorce or dissolution. Once the application for dissolution of the PACS is handed to the “mairie” or the “notaire”, where the PACS was recorded, the dissolution will have immediate effect.
Both parties will then be responsible for an amicable private arrangement and in the absence of a convention, will get their own assets back (séparations des biens). So far, so good.
What are the rights and obligations of the PACS then?
Le PACS is available for all cohabitants who are not blood related, already married or “pacsés”. Once “pacsés” (having registered their PACS), the parties can enjoy tax and health benefits and despite being financially responsible for the duration of the PACS, have no duty to maintain each other after the dissolution.
Le PACS gives couples an opportunity to register a civil union which is clearly tailored to their wishes either as a preliminary stage to marriage or as a status on its own.
As previously stated, there is an increase of young people living together, often with children, but not yet ready to engage in marriage, while still wanting to form a committed relationship. In this context, it is unlikely that Civil Partnerships, as they stand, provide the requirements and flexibility to meet the needs of the modern families.
Introducing a scheme similar to Le PACS borrowed from the French legal system has to be the way forward giving cohabitants protection while respecting their autonomy.
If Steinfeld and Keidan have paved the way towards legislation to bring equality between same sex and different sex couples, then this is victory. However, if the difference between marriage and civil partnership is in name only, then it is a wasted opportunity.
Even if the joyful and exciting New Year’s Eve celebrations go in full swing to the big countdown into 2020 for some, they will definitely go flat for others.