21 February 2017

Heterosexual couple loses appeal to enter into a civil partnership, discussed Jo Edwards on BBC Radio 5 Live

Jo Edwards, Head of Family here at Forsters LLP, spoke to BBC Radio 5 Live about the Court of Appeal decision in a case involving two cohabitants, Rebecca Steinfeld and Charles Keidan, who want the law to be changed to permit opposite sex couples to be able to enter into civil partnerships. Although they lost their appeal, it was by a majority and Jo argued that the law is discrimatory and needs urgent review by government. Jo also spoke about the wider plea for rights for cohabitants on separation or death.

Jo was asked what significant differences there are between a civil partnership and a marriage legally:

"Legally there aren't very significant differences. I think as this couple say it's a question of degree, it's about them wanting to be treated in the same way as same sex couples and so people can form marriages, of course there are religious and patriarchal connotations of that, or they can choose civil partnerships if they are the same sex couple but not as the law stands as an opposite sex couple. At the other end of a relationship when a civil partnership or marriage comes to an end, effectively those couples have available to them exactly the same rights. Now one of the things that's been highlighted by the case that was decided today is that for opposite sex couples who simply cohabit, unfortunately for them at the end of their relationship they really struggle in very many cases to pursue financial remedies which are available to others and that's the wider story that a lot of familiar lawyers are particularly concerned about."

Jo was asked if there is still a place for civil partnership given that these predated same sex couples being able to marry:

"I think that's a really interesting question and that's precisely the question upon which the government is dwelling and has been dwelling for some time, because as you will be aware same sex couples had to fight for quite a long time to have the right to marriage. Finally they got that right in this country in march 2014. What we have seen since that time is, in the first I think 15 months or so of same sex marriages being available, about 7,500 couples availed themselves of that. The most recent year in respect of which we have statistics for civil partnerships for same sex couples, 2015, there were only 861 formed. That was a significant reduction. I think there were about 5,000/6,000 civil partnerships two years prior to that, so what the government says is well actually maybe that form of relationship is now otiose or will become so. Let's see how things pan out, but for so long as civil partnerships do exist clearly on any view it is discriminatory to have that type of relationship available to same sex couples without allowing opposite sex couples to have the same rights."

Jo was asked about a common misconception where people believe that by cohabiting for a certain period of time you can become common law husband or common law wife, and that this gives you a certain degree of rights:

"It's far from being correct unfortunately. Now there's a distinction here between the position in Scotland and the position in England and Wales. In Scotland, with effect from 2006, there have been rights for cohabitants by statute, they are more limited than the rights available at the end of a relationship for married couples or civil partnership couples but there are those rights available to pursue limited forms of maintenance. For example, property transfers etc. etc. Conversely in England and Wales, despite the fact that our Law Commission recommended as long ago as 2007, now ten years ago, that there should be those rights available here, unfortunately the government's consistent position has been "let's see how things develop in Scotland". The reality on the ground and what family lawyers see is a lot of confusion, a lot of people as you say who simply don't know about their lack of rights until its too late and by the time they see a family lawyer either because their relationship has ended through separation or through the death of one of the parties, they can find themselves really high and dry. Because there are now, I think its 3.3 million cohabiting couples in this country, and there are expected to be 6 million by 2032, this is a growing crisis and something which needs urgent attention."

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