In 2018, the Supreme Court handed down two very significant family law judgments – R (Steinfeld and Keidan) v. Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) 1 and Owens v. Owens.
In the first of the two cases, the Supreme Court considered the current law relating to civil partnerships, which restricted entry into that status to same-sex couples, and held that the provisions of sections 1 and 3 of the Civil Partnership Act 2004 (CPA) were discriminatory.
In the second case, the Supreme Court explored the meaning of the divorce provisions in sections 1(1) and 1(2)(b) of the Matrimonial Causes Act 1973 (MCA). It was with great regret that the Court decided to deny the appeal of a woman against the decision of the Court of Appeal to dismiss her appeal for a decree of divorce. However, in so doing, the Supreme Court drew attention to the problematic, and outdated, nature of a divorce law which has remained unchanged since 1973.
Both decisions show the necessity for a reform of the law and although such reform is under consideration by the government, no final plans have yet been published.
In light of these two important judgments with their potential consequences for family law reform, this year's chapter on family law in the jurisdiction of England and Wales is devoted to a consideration of the rights to enter into, or exit from, legally recognised familial relationships.
THE BACKGROUND TO THE LAW
In 1997, following a landslide election, the Labour government of Tony Blair became concerned with the issue of gay rights and, in particular, the right of same-sex couples to enter into a legally recognised relationship. However, it took a number of years for legislation to be introduced. One of Mr. Blair's cabinet members, Stephen Twigg, suggested that the government had been nervous about doing so because of the risk of adverse media, and public, reaction. It was this nervousness that made the government opt to allow same-sex couples to enter into the newly created familial status of civil partnership and not enact legislation to allow them to marry. Mr. Twigg explained that:
The pragmatic view at the time was that we could achieve the basis of equal rights without it being called marriage, … it would be less controversial.