Family Law: Legislation and Modern Family

Jun 13, 2019

Written By Emma Finamore

Now that civil partnerships are available for everyone, we explore the differences between civil partnerships and traditional marriages, and look at the upcoming changes in law regarding today’s families.

Plans to allow mixed-sex couples to form civil partnerships as an alternative to getting married are on the verge of becoming law after clearing their final parliamentary hurdle in March. The Civil Partnerships, Marriages and Deaths (Registration etc) Bill now just needs Royal Assent on March 23. But what exactly are civil partnerships, how are they different to marriages, and why have people been campaigning for equal access to them?

The differences between civil partnerships and marriages

First up, let’s get to grips with the differences between civil partnership and marriage. Essentially, the fundamental difference has been that, until now, only same-sex couples could enter into a civil partnership.

Civil partnerships are a legal relationship, giving legal recognition and added rights as well as responsibilities, and they were introduced in the UK in 2004 to give same-sex couples legal recognition and rights. Basically, civil partners have the same legal rights as married couples in many areas of the law, including parental responsibility, child maintenance, inheritance tax, social security, tenancy rights, full life-insurance recognition and next-of-kin rights.

From 2014, couples who registered a civil partnership in England and Wales have been able to change this to a marriage through a simple administrative process called a ‘standard’ conversion, or a two-stage process whereby the conversion may be followed by a ceremony. There is a £4 fee for a marriage certificate, and couples need to be able to present the original partnership certificate and provide the necessary ID.

Here’s a breakdown of some subtle contrasts in various areas between the two legal relationships.

Ending the relationship: A civil partnership is ended by a Dissolution Order, whereas a marriage is ended by a Decree Absolute of divorce.

The ceremony: Civil partnerships are registered by signing the civil partnerships document, and there isn’t a requirement for a ceremony to take place or to exchange vows. Marriages are established by the exchange of words and in the form of a religious or civil ceremony.

Certificates: Civil partnership certificates include the names of both parents of the parties whereas marriage certificates only include the fathers’ names. The Private Members Bill has called for mothers’ names to be included too.

Overseas: Some countries recognise civil partnerships while others do not, so when it comes to travelling or decisions to move abroad, this could cause issues. Marriage is recognised as a legally binding institution throughout the world.

The battle to make civil partnerships available for everyone

With the introduction of same-sex marriages in England and Wales in 2014, the number of civil partnerships fell. According to House of Commons library research, in 2015 there were just over a thousand civil partnerships formed. In contrast, there were 7,366 marriages between same-sex couples in England and Wales between March 29, 2014 and June 30, 2015.

While same-sex couples have equal access to marriage, until now mixed-sex couples have not had the same access to civil partnerships.

For some people, that’s an issue. Many couples prefer the idea of a civil partnership for a variety of reasons: it gives them legal and financial protection; they may object to marriage as an institution and its associations with property and patriarchy; it’s free of the religious connotations of marriage; they see it as a more modern way of formalising their relationship.

To remedy this, Tory MP Tim Loughton introduced the The Civil Partnerships, Marriages and Deaths (Registration etc) Bill proposal (along with Baroness Fiona Hodgson in the Lords) and chairs the Equal Civil Partnerships Campaign Group—focused on changing the law so that all couples have the same access to choose the type of framework they want for their relationship, a framework that will protect all couples, legally and financially, in the eyes of the law.

The group outlines on its website why equality in civil partnerships is especially vital in our modern society: “In the UK today there are around 2.9 million different-sex couples that live together without being married, 39% of whom have dependent children. This number has doubled in the last 15 years according to official figures. Some of these couples don’t want to make a legal commitment, some are unaware of their lack of rights if they don’t, and others chose not to marry because they object to the history and trappings of the institution.

“Extending the right to civil partnerships to different-sex couples would help this latter group access greater legal protections for their family. While it would not address the inequalities faced by families who do not choose legal union, or those that are unaware of their lack of rights if they don’t, it would be an important step in the right direction to giving all families full choice and protection under the law.”

There are also important feminist arguments for extending the right to a civil partnership to everyone. Many of those who support equality between women and men view marriage as a sexist institution—typified by traditions such as the father ‘giving the bride away’ to the husband, or the bride playing the role of ‘unspoiled’ virgin though the wearing of white. While some people choose to do away with such symbolism, many other different-sex couples seeking legal union would prefer to drop the sexist associations of marriage entirely and form a civil partnership instead.

Martin Loat, chair of the Equal Civil Partnerships campaign, welcomed the passing of the bill in March: “We have battled long and hard to achieve this victory. We congratulate Tim Loughton MP for his determined and skilled championing of this Private Members Bill through Parliament. The government now plans a consultation to assess just how equal civil partnerships for all are going to work. The Equal Civil Partnership campaign will play a full part in this and will continue to speak up for our supporters.”

Loughton said: “This has been a long and hard-fought journey, but will be well worth it for the recognition and stability it will provide many thousands of mixed-sex couples. I am grateful to the work done by the Equal Civil Partnerships campaign and all others who have supported us in securing this vitally important piece of legislation.”

His colleague in the House of Lords, Baroness Hodgson, added: “It was a privilege to steer this Bill through the Lords. I have had a huge mailbag from people who are desperate to have a civil partnership and I hope it changes many people’s lives for the better.”

Others have been campaigning for this too. In 2016, a heterosexual couple—Clare Phipps and Matt Hawkins—drew attention to the issue by taking their case to the Court of Appeal in an attempt to change the law.

"I want to have a way to formally recognise the partnership that I have and love,” said Matt. “The other side is that we want financial and legal protection. There should be a way for couples like us to be able to get that without having to get married."

Similarly, Charles Keiden and Rebecca Steinfield launched a petition to extend civil partnerships to heterosexuals, which amassed 75,000 signatures. The couple took their case to the High Court, stating that it was a violation of their human rights that heterosexuals were excluded from civil partnerships. They were successful: in 2017, the court said the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights, setting the wheels in motion for the Civil Partnerships Bill.

Civil partnerships as a means to make some marriages legally binding

As well as equality of access, extending civil partnerships to all couples could also help legally bind other types of marriage under British law. The traditional Muslim ceremony—a nikah—for example, does not currently grant both parties marital rights under British law. If a couple have a nikah but not also a civil ceremony, they aren’t considered married in the eyes of the law.

Last year, the case of Nasreen Akhter demonstrated how this leaves people vulnerable. She wanted to divorce Mohammed Shabaz Khan, her husband of 20 years, but he blocked it, arguing that the couple were not married under English law—they had only undergone a nikah, conducted by an imam in 1998.

When Akhter, a solicitor, petitioned for divorce, saying the nikah constituted a valid marriage, Khan, a businessman, sought to prevent Akhtar from bringing a case for a divorce settlement to court, and said they were married only under sharia or Islamic law. However, in a written ruling, Mr Justice Williams, who heard the case in the family division of the high court in London, concluded that the marriage fell within the scope of the 1973 Matrimonial Causes Act.

He said the marriage was void under section 11 of the act because it was “entered into in disregard of certain requirements as to the formation of marriage. It is, therefore, a void marriage and the wife is entitled to a decree of nullity”.

Previous cases involving nikah marriages have concluded that they were legally non-existent, meaning spouses had no redress to the courts for a division of matrimonial assets such as the family home and spouse’s pension if a marriage broke down.

Hazel Wright, a family law specialist at Hunters Solicitors, told reporters at the time that the ruling had “given heart to many who otherwise suffer discrimination”. She said it was vital for Akhter that the “English divorce court rule in her favour, that the marriage should be recognised as void and not a non-marriage. Otherwise, she would not have any rights to make any financial claims for herself”.

An independent review of sharia councils recommended last year that Muslim couples should undergo a civil marriage as well as a religious ceremony, to give women protection under the law. The review, prompted by Theresa May in 2016 when she was home secretary, found that a significant number of Muslim couples did not register their marriages under civil law, and “some Muslim women have no option of obtaining a civil divorce”.

A survey in November 2017 found that nearly all married Muslim women in the UK had had a nikah and almost two-thirds had not had a separate civil ceremony.

Aina Khan, a specialist in Islamic law, said at the time of the findings being announced: “My experience of 25 years as a lawyer specialising in Islamic marriage and divorce is that this is not only a major problem but a growing problem. My anecdotal evidence suggests that in the last five years the proportion of people under 40 having nikah-only marriages is as high as 80%.”

Another case in which civil partnerships can help couples is that of so-called ‘common law’ husbands and wives—terminology used to refer to couples who cohabit but aren’t married. Despite popular beliefs, these couples (those who believe they are in ‘common law’ marriages) do not have the same legal rights as marriage, but the same as single people.

They can already formalise their living status via a cohabitation contract, though it's unclear as to whether the rights and obligations outlined would have any legal standing—a civil partnership would offer this legal certainty.

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