News

Supreme Court Ruling
for heterosexual couple
puts pressure on Parliament

Supreme Court Ruling for heterosexual couple puts pressure on Parliament

Published: 28th June 2018
Area: For the individual
Author: Caroline Elliott

Yesterday, a heterosexual couple took a massive step towards a civil partnership following an emphatic ruling by the Supreme Court.

The unanimous ruling by five judges in the highest court in England and Wales sends a strong signal to parliament and reinforces the urgent need for family law reforms. The list of legal areas that are no longer fit for purpose is continuing to grow – from ‘no fault’ divorce to heterosexual civil partnerships and better protections for cohabiting couples – the law must change to better reflect and protect current society.

Family law partner, Caroline Elliott, breakdown the current challenges:

Civil Partnerships

According to the courts, the Civil Partnership Act 2004, that only applies to same-sex couples, is incompatible with current societal norms and therefore discriminates against heterosexual couples.

Before same-sex couples could get married, the Civil Partnership Act was introduced to remove discrimination. It was designed to ensure that, along with marriage, every couple was able to have the same rights, no matter what their gender or sexual orientation.

However, all couples, regardless of gender, can now get married in a civil registry or a church, therefore they are all afforded the same rights in relation to inheritance and property issues. Ironically, now same-sex couples have more rights – in terms of legal protection and options on separation – than heterosexual couples because they can either get married, or enter into a civil partnership if marriage is not for them.

Couples should be able to make an emotional and financial commitment in the eyes of the law, without the requirement of marriage, regardless of their gender. Such policies must be reflective of the diversity of modern Britain, and the way in which people choose to live.

This decision from the Supreme Court will no doubt be putting pressure on the Government to review our outdated systems, but before heterosexual couples can have a civil partnership, Parliament will need to change the law.

Cohabiting couples

The current legal system leaves unmarried couples with very few rights compared to those that are married or in civil partnerships. While getting married isn’t for everyone, arranging legal protection if something were to go wrong should be a high priority, particularly if no ‘legally binding’ commitment has been made.

There is no denying that co-habiting couples are significantly disadvantaged when compared with the legal rights of married couples or those in civil partnerships. However, until the Government reforms co-habitation law, couples should make provisions to protect themselves before they move in with their significant other.

A cohabitation agreement is one option. This could include areas such as, who owns the property at the point of which the agreement is made, as well as if anyone owes anything. You can draw up a financial arrangement to ensure transparency while living together and how property, assets and financials can be divvied in the event of a split.

‘No fault divorce’

Under the current legal system, a spouse filing for divorce who does not wish to wait for either two or five years before starting proceedings must prove that the other party has ‘behaved unreasonably’ or committed adultery. This can lead to couples being trapped in a marriage with someone who they simply have fallen out of love with and trying to think of reasons to blame for the breakdown of the relationship. For people who have children and assets to separate, apportioning unfounded blame can unnecessarily lead to more tension and resistance throughout the divorce process.

The introduction of a ‘no fault’ divorce will help to remove some of the emotion and financial pressures of divorce proceedings, leading to more couples separating amicably and swiftly.

Reforms

Unfortunately, this is a political hot potato. Some 20 years ago, there was an attempt to reform the divorce law system, but it failed to have a real impact due to some political resistance and feelings of undermining society and the sanctity of marriage.

However, since then, things have moved on even further and broadened the gap between how society operates and how legal protections are structured.

Unfortunately, with Brexit dominating the agenda for policy makers, it is unlikely that we’ll see family law reforms any time soon. But, on the plus side, with cases such as this, as well as Tini Owens and Graham Mills gaining more momentum in the courts, it is likely that these rulings will be used in case law moving forward.

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