Equality cannot be achieved by abolishing civil partnerships

The days may be numbered for the strange anomaly that allows gay couples to marry or enter into a civil partnership, but which prohibits straight couples from having a civil partnerships.

A private members bill introduced by Conservative MP, Tim Loughton, has just successfully had its second reading in the House of Commons. The bill is a pretty mild measure; if passed, it will not introduce heterosexual civil partnerships, but it will commit the government to a consultation on the issue, a report and commitment to “regulate for equality” (something to which you would have thought it is already supposed to be committed).

The need for reform of this area is vast. Cohabitation is increasingly the choice made by couples. Fewer people are marrying. Cohabiting couples often mistakenly believe that they are common law husbands and wives, whereas in fact there is no such thing as common law marriage (or to be pedantic, there is not such thing as legally recognised common law marriage) in England and Wales.

This can often lead to horribly unfair outcomes; for example:

  • After the death of one cohabitant, his or her estate may be subject to a large inheritance tax bill; an inheritance received by the spouse of a deceased person is exempt from inheritance tax.
  • When a cohabiting couple separate, one partner may find that he or she is homeless and that he or she cannot make a claim for a fair share of their former partner’s assets. You may think “Why should a person have a right to a share of someone else’s assets just because they have lived together?” There will be times when it would not be fair for them to get anything. However, sometimes it would not be fair. I have seen many cases where a couple split up after cohabiting for many years, but because the house is solely owned by one partner, the other partner finds himself or herself without any assets to meet their needs, while someone who divorces after a much shorter marriage would have been entitled to a fair share.
  • Even in cases where a cohabiting couple jointly own a house, they may end up getting half each because they decided to hold the property as joint tenants when they bought it. You might think that is fair – but what if one party needs a greater share because his or her income is lower and they cannot rehouse themselves without a greater share? What if one party paid a larger share of the deposit or the mortgage? In a divorce the court has discretion to divide the parties’ assets between them in such a manner that balances both fairness and meets the parties’ needs. In an unmarried couple case, the court’s hands are tied. Such a lack of discretion leads to injustice.

There are of course many people who prefer to never formalise their relationship. They need better laws to allow them to divide their assets fairly if they split up. They also need to be able to use the better designed procedures used by the Family Court, rather than the less suitable civil procedure employed by the County Court, where for some bizarre reason most property disputes between unmarried couples must currently take place.

There are also many people who do not want to be married, but nevertheless wish to have a formalised relationship so that they can have the same rights as a married couple. Allowing civil partnerships for heterosexual couples is the obvious solution.

There are the predictable opposing voices from the awkward squad of the right-wing Conservative backbenchers, with the usual complaint that allowing civil partnerships for straight couples will weaken the institution of marriage. This is nonsense. The legal difference between a marriage and civil partnership is vanishingly small. The main difference is one of terminology. Most right-wingers believe that marriage is a good thing. Surely a new law that results in more people being “married” (whether that be by a marriage or a virtually identical civil partnership) must be a good thing. Even The Marriage Foundation, (an institution with whom I often do not agree) is in favour.

There is some concern amongst campaigners that a watered-down law committing the government to equality could be used as an opportunity to achieve equality by abolishing civil partnerships for gay couples. After all, the reactionaries argue, now that gay marriage is possible, why does anyone need a civil partnership? I think that would be a terrible idea. Not only would it cause the government to lose support from the LGBT community (at a time when I believe that the government needs to start showing that it is socially progressive), it would also fail to recognise that the huge numbers of people who are choosing not to marry need a way of finalising their union.

3 February 2018

 

You can read my earlier blogs on this issue here:

Cohabitation Awareness Week #abetterway

Some couples are more equal than others

Is ignorance bliss?

Supporting marriages this way penalises those who divorce or who stay unwed

Gay marriage – is it all a fuss about nothing?

Why cohabitation law needs reforming now

 

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