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Civil Partnerships and Marriage: Labels or a state of mind?

David Bedingfield, barrister, 4 Paper Buildings, traces the development of the law relating to marriage and civil partnership up to and including the Court of Appeal’s recent judgment in Steinfeld & Keidan.

David Bedingfield, barrister, 4 Paper Buildings

















David Bedingfield, barrister, 4 Paper Buildings 

The concept of "marriage" has been with us at least since partially clad Anglo-Saxons roamed this green and pleasant isle, according to the historian Stephanie Coontz. She tells us in Marriage, A History: How Love Conquered Marriage,1 that early marriage contracts were really nothing more than tools to establish diplomatic and trade ties between families and groups of families. Coontz argues that once there developed differences in wealth between the various family groups, marriage became a matter of intrigue and (sometimes) betrayal.

Most historians cite a text by the Benedictine monk Gratian in 1140 that sought to formalise the notion that the consent of both bride and groom was required before a marriage could be created.2 Previously, the parents of the parties to the marriage could consent to marriage, and consent by bride and groom, whether verbal or by other means, was not a formal aspect of any marriage ceremony. In the view of the historian Joanne Bailey, Gratian's test ". . . (s)et out the rules for marriage and sexuality in a changing social environment."3  

Marriage was officially deemed one of the seven sacraments of the Catholic Church by the Council of Trent in 1563. 

Thomas Cranmer, sometimes described as the architect of English Protestantism, set out the purpose for marriage in his Book of Common Prayer. The book was revised in 1552 and 1662, but the phrases "to have and to hold, from this day forward, for better, for worse, for richer, for poorer"—all are found in Cranmer's original text.

The evolution of marriage law for opposite sex couples
The Clandestine Marriage Act of 1753, popularly known as Lord Hardwicke's Act, marked the beginning of state involvement in marriage. The act required couples to get married in a church or chapel by a minister. Otherwise the union was void. Couples also had to issue a formal marriage announcement, called banns, or obtain a licence. Most prospective newly weds were already following these directives, which were enshrined in canon law. But with the act, "the penalty for not complying became much, much harsher," the historian Rebecca Probert  tells us.4 The Act put the formalities required for a valid marriage on a statutory footing for the first time.

The Marriage Act of 1836 allowed for non-religious civil marriages to be held in register offices. These were set up in towns and cities across England and Wales. The act also meant nonconformists and Catholic couples could marry in their own places of worship, according to their own rites.  The Registration Act 1836 also established the General Register Office for registering births, deaths and marriages. It also permitted the purely civil, or secular, marriage to be registered and to receive the same legal effect as a traditional wedding in church. It was the first time (apart from a short period during the Cromwell era) that non-religious marriages were solemnised by the state and recognised as a marriage.5 

Catholic and Anglican doctrine historically elevated procreation as one of the primary reasons for marriage. But in the late 19th Century, a "silent revolution" began taking place, many historians now believe. With more children surviving and family sizes ballooning, couples started using rudimentary methods of birth control to limit pregnancies.  

The Anglican Church cautiously accepted artificial contraception in the 1930s at a conference of bishops, but only where there was a "clearly felt moral obligation to limit or avoid parenthood". Today, the Church of England does not regard contraception as a sin or going against God's purpose.

For the Catholic Church "the procreation of children" remains "one of the essential things that marriage is about," Father Ashley Beck at St Mary's University College, London, told BBC reporter Laurie Everett. When a couple is preparing to marry, the subject of children is often discussed with a priest. "If they were going to rule out having children, then we wouldn't marry them," he says.6  

The legal effect of marriage is vitally important. A marriage grants to both parties certain rights in property previously owned solely by one party or the other. The Matrimonial Causes Act 1973, which governs property disputes between married couples who are seeking a divorce, sets out numerous factors to be used by a judge to assess a division of assets.  One of the factors to be used is the "need" of either party. Where appropriate, courts have had no difficulty in forcing the wealthier party to part with property that party brought into the marriage.

The legal consequences of cohabitation
There is no principle or concept in the common law of England and Wales known as a "common law marriage." One is either married, by following the steps set out by statute, or one is not. If no marriage subsists, the parties are living together as a couple (or "cohabiting"), and there can be no application under the MCA 1973. (There can, on the other hand, be applications under the Children Act 1989 regarding any children of the relationship, and there can be an application for property to be held under trust for the subject child under Schedule 1 to the Children Act 1989.)

There is no universally accepted statutory or social definition of heterosexual non-marital cohabitation. This leads to a number of problems, not least the need for a judicial finding in each case that there is indeed cohabitation. How long should the relationship last in order to merit legal recognition? As Peter De Cruz points out in his comparative study Family Law, Sex and Society, the law has been clear about the regulation of marriage but not about the status of cohabitation. English courts initially did not recognize cohabitational relationships other than marriage. Recent legislation, however, such as the Adoption and Children Act 2002, defines a couple as "two people (whether of different sexes or the same sex) living as partners in an enduring family relationship." (See s144(b) of the AACA 2002.)

Lord Hardwicke's 1753 Act removed legal recognition from informal "common law marriages."  As Barlow and others have stated, the law in Britain ever since "accepts that married families should be regulated in a special and privileged way, but is unclear about the status of cohabitants."  As de Cruz notes, there are three main areas of inconsistency between married and unmarried couples: 1) during the relationship; 2) after breakdown of the relationship; 3) after death of one of the parties.

The first and often most important distinction is that the unmarried father does not automatically acquire parental responsibility for his child. He must either be registered on the birth certificate, or he must enter into a parental responsibility agreement with the mother. Failing that agreement, he must apply to the court for an order.  (See s.4 of the CA 1989.) Therefore the unmarried father does not have to be consulted about decisions made about the child, unless he has acquired parental responsibility.

After relationship breakdown, neither party acquires rights against the other, save in limited circumstances. There is thus no duty to pay maintenance to a former unmarried cohabitant, or to redistribute property between the partners according to "equitable" principles or according to the factors set out in section 25 of the MCA 1973.  The distribution of property will be decided on principles of trust law, and in particular on principles set out in the case of Stack v Dowden [2007] UKHL 17, [2017] 1 FLR 1858. Here a heterosexual unmarried couple lived together for 20 years and had four children. The woman earned more than her male cohabitant. (He was a builder; she was an electrical engineer.) They had bought two properties together, the first in her name only, the latter with both their names on the deed. After the couple's relationship broke down, the male partner was granted half the proceeds of the house. The woman appealed. The Court of Appeal found that both parties intended to have an interest in the property, but there was no evidence of an agreement (or even of a discussion) between them as to quantum. The court looked at the common intention, and was persuaded by the fact the woman had contributed much more to the house than the man. She was awarded 65 percent of the value. The House of Lords dismissed the man's appeal. The parties' beneficial interest, the House of Lords held, should reflect their financial contributions, in the absence of any express agreement.

The European Court of Human Rights had occasion to visit the question of the unequal treatment of some cohabitants in the case of Burden v United Kingdom [2008] STC 252. Here two sisters had been living tougher for 31 years in a property owned in their joint names. The sisters claimed that the survivor would have to pay 40 per cent inheritance tax on the property. She claimed she should have the right to a tax exemption on the death of the other sister given that a spouse or a civil partner in the same situation would be granted that. She claimed that she and her sister were prevented from marrying by the relevant statute, and that this was a breach of Article 14's prohibition against discrimination. The European Court found that the relationship between siblings is qualitatively different from that between spouses or civil partners. The absence of a "legally binding agreement" meant the cohabitation was fundamentally different from marriage or civil partnership, and therefore the state would be permitted to treat them differently. Their claim failed.

If a cohabitant dies without making a will, the surviving cohabitant will have no automatic right to inherit a share of the estate. (The surviving spouse or civil partner, of course, does have certain protections regarding inheritance rights.) The spouse or civil partner of someone killed in an accident may claim damages under the Fatal Accidents Act 1975. A cohabitant can make that claim only if he or she has been living with the deceased for at least two years prior to the death. A cohabitant cannot receive statutory bereavement damages. There have been no cases where a court has held that this differential treatment of cohabitants and married partners breaches the Human Rights of the cohabitants or children of their relationship.

Civil partnerships for same sex couples
The Labour Party in 2002 promised an Act permitting gay couples to become "civil partners," but the Act that was passed—the Civil Partnership Act 2004—made a distinction between "civil partnerships" and marriages between men and women.  The first ceremonies under the Civil Partnership Act 2004 took place in Northern Ireland, Scotland, England and Wales in December 2005. The Act's purpose, of course, was to end inequalities for same sex couples.

To many Christians, however, while a civil partnership confers all the legal rights of marriage, a church wedding is seen as a mystical event, the making of promises before God in a sacred setting, endowing the relationship with a special "blessed" quality. Many same sex couples felt that the Civil Partnership Act in one sense provided only a state-blessed union, and that was not what those couples sought. They wanted the same "marriage" offered to heterosexual couples.

The question of discrimination against same sex partners came before the High Court in 2006, when Celia Kitzinger and Sue Wilkinson, both British university professors who had legally married in 2003 in  British Columbia, Canada, sought to have the United Kingdom recognise their marriage.  The state declined to do so, noting that the marriage was not recognised under British law. Under the Civil Partnership Act 2004, it was instead converted into a civil partnership. The couple sued for recognition of their marriage, arguing that it was legal in the country in which it was executed and met the requirements for recognition of overseas marriages and should thus be treated in the same way as one between opposite-sex couples. They rejected the conversion of their marriage into a civil partnership believing it to be both practically and symbolically a lesser substitute.

The High Court announced its judgment on 31 July 2006, ruling that their union would not be granted marriage status and would continue to be recognised in England and Wales as a civil partnership.  The President of the Family Division, Sir Mark Potter, gave as his reason that "abiding single sex relationships are in no way inferior, nor does English Law suggest that they are by according them recognition under the name of civil partnership", and that marriage was an "age-old institution" which, he suggested, was by "longstanding definition and acceptance" a relationship between a man and a woman.   The President held that the provisions of the 2004 Act, which precluded recognition of a marriage between persons of the same sex, did not breach rights protected by Article 12 or Article 8 of the European Convention for the Protection of Human Rights. In Potter P's view, Parliament had enacted the 2004 Act to accord same sex relationships all the rights, responsibilities, benefits and advantages of civil marriage save the name, and to remove the legal, social and economic disadvantages suffered by same sex couples. To the extent there was discrimination, in his view that discrimination had a legitimate aim, was reasonable and proportionate and fell within the margin of appreciation accorded to Convention States. He agreed with the couple's claim that they were being discriminated against by the Civil Partnership Act 2004, but considered that "[t]o the extent that by reason of that distinction it discriminates against same sex partners, such discrimination has a legitimate aim, is reasonable and proportionate, and falls within the margin of appreciation accorded to Convention States." The Attorney General, as Second Respondent, sought £25,000 in legal costs from the couple, which the High Court ordered them to pay. The couple had to abandon their appeal because of a lack of funds.

The introduction of same sex marriage
Their battle may have been lost, but with the coalition government's decision to enact the Marriage (Same Sex Couples) Act 2013, the war may well have been won. The Act, however, does not seek to provide the same "right to marry" that heterosexual couples have. The Act included specific protection for religious organisations and individuals who did not wish to solemnise same sex marriages, and the Church of England was not entitled under the Act to decide on same sex marriages. It was prohibited from conducting same sex marriages without further legislation.  Other places of worship could "opt in" to religious marriage of same sex couples, but no organisation could be compelled to opt in, and no one could be compelled to carry out a same sex marriage. There was a significant majority of MPs in favour of the Act. The 2013 Act provides routes for conversion of existing civil partnerships to marriages. The Act also amends the Equality Act 2010 to exclude the provision of religious marriage of same sex couples. Sections 4 and 5 of the 2013 Act amend the Marriage Act 1948 to allow a same sex couple to be married in a registered place of worship, "according to such form and ceremony as the persons to be married see fit to adopt," but only where the governing authority has given written consent to marriages of same sex couples. 

The future for civil partnerships?
During the parliamentary passage of the 2013 Act questions had been raised about the future of civil partnership. Therefore in January 2014 – as required by section 15 of the Act – the government launched a consultation to seek people's views on the main options for any future changes. In June of that year it reported that of the more than 10,000 online survey answers to each of the relevant questions: less than a third of respondents supported abolition of civil partnership; the majority opposed closing civil partnership to new couples; and over three-quarters opposed opening up civil partnership to opposite sex couples. Given the lack of apparent consensus on the way forward, the government decided against making any changes at that stage. In particular, it noted that at that time it was not known how many same sex couples would remain in civil partnerships rather than convert them to marriages.

Civil partnerships for opposite sex couples: Steinfeld & Anor v Secretary of State for Education
Hannah Steinfeld and Charle Keidan do not want to get married. They are a heterosexual couple who would prefer a civil partnership because of their "deep-rooted and genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature."  A civil partnership, in their view, would reflect their values and give due recognition to the equal nature of their relationship. Both believe that "marriage" does not reflect the way in which they understand their commitment to each other. It is not how they wish their relationship to be seen.  In particular, they want any children to have to see their parents' relationship as one of total equality reflecting the equal independent contribution which both parties make. 

Ms. Steinfeld and Mr. Keidan were prohibited from seeking a civil partnership, however, because the Civil Partnership Act 2004 expressly prohibits opposite sex couples entering into a civil partnership. In their view that was unlawful. It was a discrimination by Parliament in the provision and recognition of a legal right that is protected by the European Convention for the Protection of Human Rights.

The High Court proceedings
The couple sought judicial review of the decision by the Secretary of State not to amend the CPA 2004, and they sought a declaration that the CPA's bar on opposite sex couples was incompatible with the Convention. In particular, the claim was that the bar "engaged" their rights under Article 8, and that the bar worked to discriminate against their enjoyment of their Article 8 rights by reason of their sexual preference.

The couple presented several witnesses statements in support of their application. One, by the noted Guardian education writer Fiona Millar, set out her reasons for not marrying her partner of 35 years, the journalist and former Labour press secretary Alastair Campbell7: "We have chosen not to get married for 35 years on principle. I do consider marriage to be a patriarchal institution and unnecessary for me to feel either committed or secure in my relationship. .. . The law should protect these families in the same way as it would protect families of same sex couples who opt for civil partnerships or indeed of married couples." Other witnesses in similar positions also submitted evidence of their desire to enter into a relationship protected by the state, but without the historic resonance of a male-dominated understanding of "marriage."

Andrews J disagreed. In her judgment given on 28.1.2016, she dismissed Ms. Steinfeld's and Mr. Keidan's application.8 In her view the bar did not in fact fall within the scope or "ambit" of Article 8. The applicants in her view could achieve formal state recognition of their relationship, with all the rights, benefits and protections that flow from such recognition, by getting married. The judge did not accept that the bar on their seeking a civil partnership somehow meant they were subjected to "humiliation, derogatory treatment or any other lack of respect for their private lives." (See judgment of Andrews J at para 38.) The only obstacle to the couple getting married, in the view of Andrews J, was "their conscience." That in her view was not sufficient damage to implicate Article 8.

Andrews J alternatively held that even if Article 8 is engaged, the state was justified in maintaining the bar until more information was available regarding the formation and dissolution of CPs. This would allow the Secretary of State to evaluate the impact of the 2013 Marriage (Same Sex) Couples Act 2013 on the demand for civil partnerships by same sex couples.

The Court of Appeal
The couple's appeal was heard by Arden LJ, Beatson LJ and Briggs LJ.9 All three accepted that Article 8 was engaged. All three accepted that the bar on opposite-sex couples seeking a civil partnership was discriminatory, and therefore potentially in breach of Article 14 in conjunction with Article 8 of the ECHR.  But only Arden LJ accepted the argument that it is for the Secretary of State to justify NOW, as of the date of the appeal, the discriminatory treatment of opposite sex couples.

Counsel for the government (Dan Squires QC) contended that the only way discrimination could be shown is by focusing improperly and unnecessarily on the label "marriage." In this contention, because marriage between opposite sex couples offers the same legal protection as civil partnerships, the label is irrelevant. Arden LJ disagreed. The argument, as she aptly put, works in reverse. The 2013 Act merely gave same sex couples the same rights as they could obtain by entering CPs but through an institution with the name of "marriage." To same sex couples, this name was important. It removed the implication that their relationship was somehow less worthy than that of opposite-sex couples. 

In the view of Ms. Steinfeld and Mr. Keidan, the term "marriage" is equally important, but for obviously different reasons. In their view the label is inconsistent with equality. For Arden LJ, the fact that there was a private members' bill in Parliament that would extend CPs to opposite-sex couples suggested that Ms. Steinfeld and Mr. Keidan were not alone in their view. (That bill, which does not yet have government support, will not likely be brought up again during this Parliamentary term.)

Andrews J had agreed with the government's contention that Article 8 could be engaged only if the couple showed an adverse impact arising from the discriminatory treatment. Andrews J relied in part on the case of M v Secretary of State for Works and Pensions [2006] UKHL 11, [2006] 2 AC 91, HL, where the House of Lords had before it a clam by a mother of a child who was living with a same sex partner after separating from the child's father. She had to make a larger contribution for child benefit than the father, who also had caring responsibility for the child but who was now in an opposite-sex relationship. The majority of the House of Lords hearing the matter agreed that the rule was discriminatory, but did not agree that the discrimination was within the ambit of Article 8. (Lady Hale dissented on this point.) In the view of the majority, the fact the mother paid more did not in any material way impair her family life with her children and former husband, or her family with her children and her current partner, or her private life. She has less money to spend, of course, but for the majority this fact did not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life. (See Bingham LJ's judgment, at para 5.)

In Arden LJ's view, the refusal to permit this couple to seek a civil partnership rather than a marriage was in fact implicating a "personal interest close to the core values" of Article 8. The core of a right, for Arden LJ, is ascertained by identifying the values at stake. The Convention is only concerned with disputes about discrimination which are "of moment" and not peripheral. Arden LJ had no difficulty in finding that the legal recognition of a couple's relationship will in general be regarded as of moment and a matter in which that couple has a personal interest. She also agreed with the submissions by Karon Monaghan QC on behalf of the appellants that M v SSWP did not set out a rule requiring an adverse impact in cases where the complaint is that the state had breached its positive obligations under Article 8. This was confirmed by the Strasbourg court in the case of Oliari v Italy  (ECHR, Apps nos 18766/11 and 3603/11, 21 July 2015). In Oliari, the European Court held that Italy had failed to provide an avenue for same sex couples to have their relationships recognised by the law. (This is a failure that has lasted some 30 years, after the Italian Constitutional Court had found in favour of same sex couples on this issue.) The European Court held that while there was no obligation on Italy to extend the legal institution of marriage to same sex couples, there would be at least a potential violation (subject to the justification defence of Article 8 (2)) of the Article 8 rights of the same sex couples.  

In the view of Arden LJ, Oliari meant that the Strasbourg Court had held that couples had an interest in the state's failure to provide a means for obtaining appropriate legal recognition of their relationship. There, by extension of this analysis, the couple in this appeal similarly had an interest in the UK's refusal to provide a means for obtaining appropriate legal recognition of their relationship. Therefore Article 8 was engaged. 

But the government argued that because the couple here could marry, there could be no breach of Article 8 in this case. This was of course different (in the government's contention) from the same sex couples in Italy, who had no avenue open to them for legal recognition of their relationship. Arden LJ disagreed. "Non-discrimination requires that the rights of same sex couple and opposite sex couples are the same here unless the difference is justified. Because of the non-availability of CPs, the position of same sex and opposite sex couples is treated differently in a relevant respect. Accordingly, the availability of the option of civil or religious marriage is not a good answer to the appellants' appeal." (See para 37.)

Arden LJ then moved to the "justification" issue: whether the government's policy of inaction and further evaluation was necessary and proportionate, and therefore justified. She noted that the burden of proof rested upon the government to show that the policy of discrimination was justified. This is a two-part analysis: are the measures suitable to achieve a legitimate aim; and is the discrimination necessary (meaning, is it proportionate)?10 Arden LJ tackled the issue of proportionality and fair balance by setting out five reasons the government's policy of  "wait and see" must fail:

  1. The policy is open-ended, and the government sets out no good reason why the statistics already amassed by the government should not suffice;
  2. The policy is directed only to obtain information about same sex couples' attitude to civil partnerships, and therefore not likely to aid the government in constructing a policy that strikes a fair balance between all competing interests, in particular for opposite sex couples;
  3. The policy does not address all of the important issues likely to arise on any legislative change to the CPA, including whether as a matter of public policy opposite sex couples should have the freedom to have a legal framework of their choice, just as same sex couples currently do, and whether it even matters if only a few same sex couples choose to use the CPA in its present form;
  4. The statistics already accumulated provide sufficient information for the government to form a policy, and the Secretary of State's requirement for "many years' data" may provide more data, but is unlikely to provide more relevant information;
  5. The impact on the public purse of a decision to provide civil partnerships for opposite sex couples would appear to be minimal.

What is striking about the judgments of Lord Justice Beatson and Lord Justice Briggs is how much agreement is expressed with the approach and reasoning of Lady Justice Arden.11 The disagreement, as often occurs in cases involving human rights claims against decisions by the government of the day, comes when Beatson LJ addresses the issue of proportionality.
 Beatson first noted that the Secretary of State identified four options available as to how the government might proceed: 1) extend CPs to different- sex couples; 2) abolish CPs altogether; 3) phase out CPs while retaining existing CPs; 4) maintain the status quo. (Dan Squires QC, on behalf of the Secretary of State, made clear in his submissions that the fourth option was not on the table.) The primary contention here by the government is that because the cases involved "questions of social or economic policy" in an area in which there is no consensus among Council of Europe members, the government should be granted a wide discretion. 

Beatson LJ first asked himself whether the government's wait and see policy was in pursuit of a legitimate aim. In his view the government's seeking further time to make a proper assessment and only then form policy is legitimate. It is not simply in this view a matter of making certain the public purse is protected and there is no waste of public money; instead, the more important consideration for Beatson LJ is that these are "difficult and sensitive policy issues." (See para 156.) Beatson LJ noted that in the instant appeal the discrimination that was at issue was the result of a step taken by the government to extend rights to couples whose relationship, until the 2004 Act came into force, had no legal status. A number of differently lawful policy outcomes would eliminate the discrimination that now currently exists, and therefore the resolution of the issue is more complex and may take longer. (See para 157.) In the view of Beatson LJ and Briggs LJ, the position of the government is objectively justified. 

The most compelling points made by Arden LJ are that the government's policy of seeking further information about the views of same sex couples to CPs will not help the government decide whether it is appropriate for CPs to be extended to opposite sex couples, and that the information currently available to the government shows widespread support for extending CPs to opposite sex couples.  In the view of Beatson LJ, the fact that the appellants (and Arden LJ) ". . . consider the government should have gone about the process of deciding on the way forward by some different route, or that it might have done so, does not mean that it was not pursuing a legitimate aim in deciding that the time was not ripe for the determination of policy as to how to eliminate the difference of treatment between the same sex couples and different sex couples." (See para 159.)

Beatson LJ believed the Court was therefore concerned with an ". . . evolving legislation and policy, and with the decision of the legislation in 2013 to make no change to the category of civil partnership, but, by enacting provision for a review of civil partnerships, to recognise that policy in this area remains in a state of evolution." (See para 160.) Beatson LJ believed Lord Bingham's dicta in R (Countryside Alliance) v Attorney General [2007] UKHL 52 are instructive: Where the decision that is impugned had been taken recently by a majority of the country's democratically elected representatives, the democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of  the Act achieve through the courts what they could not achieve in Parliament. 

Beatson LJ noted, however, that in his view the discrimination currently existing cannot be maintained for long. The government accepted this in submissions. Beatson LJ stated categorically that the ". . .  Government will need to make a decision to eliminate the current discriminatory position and to do so within a reasonable timescale." (Para 161.) He did not see it as the role of the court to set a deadline for compliance, nor to micro-manage areas of social and economic policy. It is the court's role instead to determine whether or not the discriminatory measure and the Government's decision to undertake a proper assessment of the optimum way forward is objectively justified now. Beatson LJ agrees that as of the date of this decision it is objectively justified, but that ". . . as time passes it will become increasingly difficult to persuade the court that there is still a need to 'wait and see' or that an approach to civil partnership primarily based on the demand for that status by same-sex couples alone is justifiable. The Government will have to decide whether to abolish the status of civil partnerships or extend it to different-sex couples and it is for the Government and for Parliament to decide how to keep the matter under active review." (See para 163.)
 Briggs LJ in his short judgment agreed with the reasoning of Beatson LJ, and he, too, was critical of some of the reasons put forward by the Government to justify its refusal to eliminate the discrimination and to wait and evaluate. But, again, he agreed that it was for Parliament to decide what to do, not the courts.

Karon Monaghan QC contended on behalf of the appellants that Article 8 imposes a positive obligation for the Government to provide a form of legal recognition for couples. Arden LJ and the Court refused to go that far. In her view, while the bounds of Article 8 may shift with time, at present that is not how Article 8 has been interpreted by either the UK Supreme Court or the ECHR.  It may well be that under current case law, it will therefore be open to Parliament to simply abolish civil partnerships altogether. But why would it do this?  It is right that some 66 per cent of those responding to the Government's consultation in 2012 agreed the CPs should be retained,  and 61 percent supported extension of civil partnerships to opposite- sex couples.    It is likely that number will only get higher. Most people do not care whether a couple seeks to secure their relationship by a formal wedding in a church, by a marriage after a secular hearing in front of a duly authorised non-religious clerk or other recognised person, or by registering the couple's civil partnership after no ceremony at all. It is of no significance to most, save those whose religion (or insecurities) require that they care about how others in their community confirm and secure their family relationships.

Conclusion
The Government should forthwith simply extend civil partnerships to opposite sex couples.  The fact that many see no difference between a civil partnership and a marriage outside of a church is not the point. For some, like the appellants in this case, "marriage" is more than a label. It is a state of mind. Those couples are entitled to secure their family relationships in a manner of their choosing.
______________________________

Footnotes:

[1]
   (Viking 2006).
[2]   The little that is known concerning the author of the "Concordantia discordantium canonum", more generally called the "Decretum Gratiani", is furnished by that work itself, its earliest copies, and its twelfth-century "Summae" or abridgments.  The Encylopedia of Catholicism tells us that Gratian was born in Italy, perhaps at Chiusi, in Tuscany. He became a Camaldolese monk (some say  Benedictine), and taught at Bologna in the monastery of SS. Felix and Nabor.  Nor is it certain at what time he compiled the "Decretum". It did not exist before 1139, according to scholars relied upon by the Encylopedia. The document contains decrees of the Second Lateran Council held in that year. A common opinion places its completion in 1151. Recent research, however, points to 1140, or to a date nearer thereto than to 1151. The "Decretum" was certainly known to Peter Lombard, for he makes use of it in his "Liber Sententiarum". Gratian died before the Third Lateran Council (1179), some say as early as 1160. It is not certain that he died at Bologna, though in that city a monument was erected to him in the church of St. Petronius. He is the true founder of the science of canon law. See http://www.newadvent.org/cathen/ .  See also the World Digital Library, at https://www.wdl.org/en/item/14708/ .
[3]   Joanne Bailey is Professor of History at Oxford Brookes University. Her most recent book is Parenting in England c.1760-1830: Emotions, Self-identity and Generation (Oxford University Press, 2013).  See Probert, Marriage Law in the long 18th Century (Cambridge University Press 2009).
[4]   John Haskey, "Marriage Rites—Trends in Marriages", in Miles, Mody and Probert, eds, Marriage Rites and Rights (Hart Press 2014), p21.
[5]   See Everett, "10 Key Dates in the History of Marriage," BBC Magazine, http://www.bbc.co.uk/news/magazine-17351133 .
[6]   Campbell for some reason is not named in the judgment.
[7]   See [2016] EWHC 128 (Admin).
[8]   Arden LJ here used the language of "strict scrutiny" to be applied by the court when reviewing the Act, language that is usually associated with the US Supreme Court's more rigid categorisation of human rights claims, and not normally associated with analysis of proportionality and fair balancing by European Courts. It would appear she is using the term to mean only that the state bears a heavy burden to show that a policy of discrimination is justified.
[9]   See [2017] EWCA Civ 81.
[10] Both Beatson LJ and Briggs LJ agreed that the claim falls within the ambit of Article 8, and both therefore rejected the contention that Article 8 requires an adverse impact on the claimants, who in this case of course could marry. What is instead the key fact here is that the government chose to legislate in support of or to promote family life, and therefore that measure falls within the ambit of Article 8. See Baroness Hale's judgment in M v Secretary of State for Work and Pensions [2006] 1 AC 91, para para 109-110. Andrews J had held that claims under Article 8 require a showing of adverse impact on their family life. All the judges on this panel of the Court of Appeal rejected that holding.
[11] These statistics are attached to the judgment of Arden LJ as an Appendix.

16/3/17