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Published online by Cambridge University Press: 28 January 2019
The Steinfeld and Keidan campaign for ‘equal civil partnerships’ is focussed on English domestic law. However, it also has profound implications from a private international law perspective. If the UK parliament extends civil partnership to include different-sex couples, this will close a long-standing gap in English private international law. If, on the other hand, it was decided to abolish civil partnership, this would extend the existing lacuna in English private international law, and might generate further collisions with human rights norms. This article explores these lacunae and associated human rights concerns—and suggests possible solutions.
1 Marriage (Same Sex Couples) Act 2013.
3 Art 14 ECHR provides: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
4 Art 8(1) ECHR provides: ‘Everyone has the right to respect for his private and family life … .’
5 The claimants contended before the Court of Appeal that they had ‘deep-rooted and genuine ideological objections to marriage’ based on ‘its historically patriarchal nature’. They preferred civil partnership as a secular institution which would ‘give due recognition to the equal nature of their relationship’: Steinfeld and Keidan v Secretary of State for Education  EWCA Civ 81;  3 WLR 1237 .
6 Steinfeld and Keidan v Secretary of State for Education  EWHC 128 (Admin);  4 WLR 41.
7 Steinfeld (CA) (n 5).
8 R (on the application of Steinfeld and Keidan) v Secretary of State for International Development  UKSC 32.
9 For a critique of the High Court judgment, see Ferguson, L, ‘The Denial of Opposite-Sex Couples’ Access to Civil Partnership as Discrimination’ (2016) 38 Journal of Social Welfare and Family Law 450CrossRefGoogle Scholar; Hayward, A, ‘Justifiable Discrimination: The Case of Opposite-Sex Civil Partnerships’  CLJ 243CrossRefGoogle Scholar.
10 Steinfeld (CA) (n 5) , .
11 Steinfeld (CA) (n 5) , –.
12 Steinfeld (SC) (n 8) –.
13 Steinfeld (SC) (n 8) .
14 Steinfeld (SC) (n 8) .
15 See Civil Partnerships, Marriages and Deaths (Registration Etc.) HC Bill (2017–18) ; also Hayward, A, ‘The Future of Civil Partnerships in England and Wales’ in Scherpe, J and Hayward, A (eds), The Future of Registered Partnerships: Family Recognition Beyond Marriage (Intersentia 2017) 550–1Google Scholar.
16 See Steinfeld (CA) (n 5) ; also HC Deb 2 February 2018, vol 635, cols 1121–1122.
17 Secretary of State for International Development, The Future Operation of Civil Partnership: Gathering Further Information (Cm 9606, 2018) paras 28–29.
18 HC Deb 3 July 2018, vol 644, col 186. At the time of going to press, extension seems the more likely course of action. Prime Minister May issued a statement on 2 October 2018 pledging to open civil partnerships to different-sex couples: Murphy, J, ‘Straight Couples to Be Allowed to Enter Civil Partnerships, Theresa May Reveals’ Evening Standard (London, 2 October 2018)Google Scholar.
19 Gaffney-Rhys, See R, ‘Same-Sex Marriage but Not Mixed-Sex Partnerships: Should the Civil Partnership Act 2004 be Extended to Opposite-Sex Couples?’ (2014) 26 Child and Family Law Quarterly 173Google Scholar; Gaffney-Rhys, R, ‘Opposite-Sex Civil Partnerships in England and Wales? Let's Wait and See’  Family Law 1216Google Scholar; Wintemute, R, ‘Civil Partnership and Discrimination in R (Steinfeld) v Secretary of State for Education: Should the Civil Partnership Act 2004 Be Extended to Different-Sex Couples or Repealed?’ (2016) 28 Child and Family Law Quarterly 365Google Scholar; Ferguson, L, ‘The Curious Case of Civil Partnership: The Extension of Marriage to Same-Sex Couples and the Status-Altering Consequences of a Wait-and-See Approach’ (2016) 28 Child and Family Law Quarterly 347Google Scholar; Bendall, C, ‘Court of Appeal Rules Against Civil Partnerships for Different-Sex Couples … For Now’ (2017) 39 Journal of Social Welfare and Family Law 354CrossRefGoogle Scholar; Fenwick, H and Hayward, A, ‘From Same-Sex Marriage to Equal Civil Partnerships: On a Path Towards “Perfecting” Equality?’ (2018) 30 Child and Family Law Quarterly 97Google Scholar.
20 Section 1(1) CPA: ‘A civil partnership is a relationship between two people of the same sex (“civil partners”) –
(a) which is formed when they register as civil partners of each other – (i) in England or Wales …
(b) which they are treated under Chapter 2 of Part 5 as having formed (at the time determined under that Chapter) by virtue of having registered an overseas relationship.’
21 See Department for Culture, Media and Sport, Civil Partnership Review (England and Wales): A Consultation (January 2014) 24.
23 Section 215(1) CPA. Thus, questions of formality and capacity are referred to the law of place of registration (celebration) where registered partnerships are concerned: this allows for recognition even in the event that one of the partners is domiciled in a country where registered partnership is unknown or where there is a hostility to same-sex relationships. Section 212(2) CPA defines the law of the place of registration as ‘including its rules of private international law’ but this renvoi is not thought to be of significance in practice: see Hill and Ní Shúilleabháin (n 22) 390.
24 The imposition of domiciliary capacity rules tends to nullify attempts to sidestep domestic law: the unwanted incapacity travels with the forum shopper, thwarting evasive action.
25 A ‘limping’ partnership is one which is valid and recognized in one country, but denied validity and recognition in another.
26 For example, in Ireland, the Marriage Act 2015 closes off civil partnership to new entrants and removes the statutory recognition mechanism for overseas registered partnerships concluded after 16 May 2016 (see further, F Ryan, ‘The Rise and Fall of Civil Partnership’ (2016) 19 Irish Journal of Family Law 50; Harding, M, ‘Marriage Equality: A Seismic Shift for Family Law in Ireland?’ in Atkin, B and Banda, F (eds), The International Survey of Family Law (Jordan 2016) 266, 272–3Google Scholar). The Appendix to the Court of Appeal judgment in Steinfeld (n 5) indicates that a number of other European States (including Finland and Sweden) abolished the institution of registered partnership at the time of introducing same-sex marriage.
27 Norrie, K, ‘Recognition of Foreign Relationships under the Civil Partnership Act 2004’ (2006) 2 JPrIL 137, 150ffGoogle Scholar. See also Department for Culture, Media and Sport (n 21) 19 acknowledging that ‘overseas opposite sex civil unions … currently are not legally recognised in the UK’. Pt 5 CPA is specifically restricted to overseas same-sex registered partnerships (see sections 1, 212 and 216).
28 Gaffney-Rhys (2017) (n 19) 1221; Rowlings, N, ‘The Quest for Equal Civil Partnerships’  Private Client Business 28, 34–5Google Scholar; C Fairbairn and O Hawkins, The Future of Civil Partnerships (House of Common Library, Briefing Paper No 7856, 1 February 2018) 22.
29 Wintemute (n 19) 380 refers to the fact that in 2015 in the Netherlands, 84 per cent of different-sex couples opted for marriage, whilst only 16 per cent opted for registered partnership.
30 Butruille-Cardew, C, ‘A French Approach to Civil Partnerships: le Pacte Civil de Solidarité’  International Family Law 414Google Scholar; Cressent, A, ‘Civil Partnership in France: Pacte Civil de Solidarité’  International Family Law 57Google Scholar; Swennen, F and Eggermont, S, ‘Same-Sex Couples in Central Europe: Hop, Step and Jump’ in Boele-Woelki, K and Fuchs, A (eds), Legal Recognition of Same-Sex Relationships in Europe (2nd edn, Intersentia 2012) 31Google Scholar.
31 Norrie (n 27) 151.
32 As indicated above (text to n 22), under English choice-of-law rules for validity of marriage, capacity to marry is governed by the law of the domicile: see Norrie (n 27) 151. Under French law, a registered partnership (pacte civil de solidarité—PACs) is automatically dissolved by marriage (whether to the partner or another) so no such impediment would arise in the event that French law is the law of the domicile and the registered partnership was by way of PACs: see I Curry-Sumner, ‘A Patchwork of Partnerships: Comparative Overview of Registration Schemes in Europe’ in Boele-Woelki and Fuchs (n 30) 76. However, under Dutch law, a registered partnership is an impediment to marriage: see P Wautelet, ‘Private International Law Aspects of Same-Sex Marriages and Partnerships in Europe – Divided We Stand?’ in Boele-Woelki and Fuchs (n 30) 177 (fn 154).
33 See Draghici, C, ‘Equal Marriage, Unequal Civil Partnership: A Bizarre Case of Discrimination in Europe’ (2017) 29 Child and Family Law Quarterly 313, 328Google Scholar. Also Crown, B, ‘Civil Partnership in the UK – Some International Problems’ (2004) 48 NYLSchLRev 697, 708–9Google Scholar: ‘One would not expect married couples to have to get married again every time they move to a foreign country. The same principles should apply here.’
34 Registered partnerships probably fall outside of the material scope of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000  OJ L338/1 (the ‘Brussels II bis Regulation’ allocating jurisdiction in divorce matters): see R Lamont, ‘Registered Partnerships in European Union Law’ in Scherpe and Hayward (n 15) 517. Even if they fell within the material scope of the Brussels II bis Regulation, however, subject-matter jurisdiction remains a matter for individual Member States, and it follows that the Regulation does not impose any obligation to facilitate dissolution of different-sex registered partnerships, where national law makes no provision for such dissolution: see Shúilleabháin, M Ní, Cross-Border Divorce Law: Brussels II bis (Oxford 2010) 103–19Google Scholar.
35 Pursuant to Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations  OJ L7/1. This possibility may be lost when the UK withdraws from the EU.
36 Nor did the UK participate in Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law, and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships  OJ L183/30.
37 Torremans (n 22) 1078.
38 See Willenbrink, Z, ‘Conflicts of Law and Policy Relating to Same-Sex Marriage Recognition in Wisconsin’ (2010) 94 MarqLRev 721Google Scholar, 747 (making a similar argument in the context of non-recognition of same-sex marriage).
39 Fawcett, J, Shúilleabháin, M Ní and Shah, S, Human Rights and Private International Law (Oxford 2016) 594Google Scholar.
40 See Kinsch, P, ‘Recognition in the Forum of a Status Acquired Abroad – Private International Law Rules and European Human Rights Law’ in Boele-Woelki, K et al. (eds), Convergence and Divergence in Private International Law – Liber Amicorum Kurt Siehr (Eleven International 2010) 259Google Scholar; Kinsch, P ‘Private International Law Topics Before the European Court of Human Rights: Selected Judgments and Decisions (2010–2011)’ (2011) 13 YrbkPrivIntlL 37Google Scholar; Watt, H Muir ‘European Federalism and the “New Unilateralism”’ (2008) 82 TulLRev 1983Google Scholar; Franzina, P ‘Some Remarks on the Relevance of Article 8 of the ECHR to the Recognition of Family Status Judicially Created Abroad’ (2011) 5(3) Diritti Umani e Diritto Internazionale 609Google Scholar.
41 App No 76240/01, Judgment of 28 June 2007.
42 App No 56759/08, Judgment of 3 May 2011.
43 Wagner (n 41) –.
44 App No 65192/11, Judgment of 26 June 2014 .
45 Steinfeld (SC) (n 8) , , .
46 Hill and Ní Shúilleabháin (n 22) 390, 393.
47 See Norrie (n 27) 152; Gaffney-Rhys (2017) (n 19) 1222–3.
48 See text nn 32–34.
49 Norrie (n 27) 152–3.
50 See section 215 CPA.
51 See section 37 and Sch 5 CPA.
52 See K Norrie, ‘Registered Partnerships in Scotland’ in Scherpe and Hayward (n 15) 250 arguing for abolition of civil partnership on the basis that international recognition is much more straightforward for marriage.
53 See eg I Lund-Andersen, ‘The Nordic Countries: Same Direction – Different Speeds’ in Boele-Woelki and Fuchs (n 30) 14 indicating that different-sex registered partnerships would not be recognized in any of the Nordic countries.
54 The possibility of an international instrument is being considered by the Hague Conference on Private International Law: see Permanent Bureau, ‘Update on the Developments in Internal Law and Private International Law Concerning Cohabitation Outside Marriage, Including Registered Partnerships’ Prel Doc No 5 (March 2015), available at <www.hcch.net>. The International Commission on Civil Status adopted a Convention on the Recognition of Registered Partnerships in 2007 (see <www.ciec1.org>). This Convention covers different-sex as well as same-sex partnerships. However, it has attracted only one ratification (by Spain).
55 See text nn 40–44.
56 This was the approach adopted in Ireland: see (n 26) above.
57 See Orlandi v Italy, App Nos 26431/12, 26742/12, 44057/12 and 60088/12, Judgment of 14 December 2017 : it seems there are 11 Council of Europe Contracting States which extend registered partnership (but not marriage) to same-sex couples: Andorra, Cyprus, Croatia, the Czech Republic, Estonia, Greece, Hungary, Italy, Liechtenstein, Slovenia and Switzerland. Following Oliari v Italy, App Nos 18766/11 and 36030/11, Judgment of 21 July 2015, it seems likely that other Council of Europe Contracting States will also extend registered partnership to same-sex couples in the near future. (In Oliari, the ECtHR indicated that—at least where there is a popular consensus in favour of recognition of same-sex couples—Contracting States owe a positive obligation under art 8 ECHR to make available a specific legal framework for the recognition and protection of same-sex unions.)
58 On ‘asymmetry of access’ and the ECHR, see generally H Fenwick and A Hayward, ‘Rejecting Asymmetry of Access to Formal Relationship Statuses for Same and Different-Sex Couples at Strasbourg and Domestically’  EHRLR (6) 544.
59 See text nn 40–44.
60 App No 51362/09, Judgment of 30 June 2016.
61 Orlandi (n 57).
62 (2001) 31 EHRR 15.
63 Orlandi (n 57) , .
64 Orlandi (n 57) .
65 Orlandi (n 57) . cf Wagner (n 41) .
66 Orlandi (n 57) . The Court also emphasized that the margin of appreciation allowed to Contracting States is restricted where a particularly important facet of an individual's existence or identity is at stake (at ).
67 See text nn 32–34.
68 See Orlandi (n 57) , : the Contracting State must put forward a ‘community interest’ to justify non-recognition.
69 ie a failure to treat differently persons whose situations are significantly different.
70 App No 28475/12, Judgment of 26 October 2017.
71 This would not be without precedent: in Hincks v Gallardo  ONSC 129 the Ontario Superior Court of Justice ruled in favour of recognizing a UK civil partnership as a Canadian marriage. However, it is noteworthy that the Ontario court emphasized the non-availability of marriage to same-sex couples in the UK (at the time). It was therefore implicit in the judgment that recognition would have been denied if this couple had opted for civil partnership in preference to marriage (and if both methods of formalization had been on offer in the UK). It follows that civil partnerships registered in England since the coming into force of the Marriage (Same Sex Couples) Act 2013 are no longer entitled to recognition as ‘marriage’ in Ontario: S Wiggerich, ‘Civil Partnership as Marriage: the Recognition of Foreign Same-Sex Unions in Canada’  International Family Law 42.
72 Text (n 49).
73 See (n 5).
74 For a contrary view that reclassification is a human rights violation, see A Lester, ‘Should Same Sex Marriage Be Legally Recognised in Northern Ireland?’  (5) EHRLR 432 criticizing the rejection of the application in Re X  NIFam 12. In Re X the applicant sought a declaration that the recognition of an English same-sex marriage as a civil partnership in Northern Ireland is inconsistent with the ECHR.
75 See Wilkinson v Kitzinger (No 2)  EWHC 2022 (Fam)  where the reclassification of a Canadian marriage as an English civil partnership was considered to be ‘offensive and demeaning’.
76 See Cressent (n 30).
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