THE ODYSSEUS TRUST
Civil Partnerships Act 2004
The Civil Partnership Act allows same-sex couples to register their partnerships and to take advantage of a set of rights and responsibilities that mirror civil marriage. The Act provides long over-due legal recognition to committed, monogamous same-sex relationships. It will relieve hardship in key areas such as rights in relation to communal property, exemption from inheritance tax on a shared property and the right to be treated as next of kin by state agencies (for example, in the event of the illness or death of a partner).
The Act received Royal Assent on 18 November 2004, and was brought fully into force at the end of 2005.
The Act had its Second Reading in the House of Lords on 22 April 2004.
The Trust was closely involved with all parliamentary stages of the Bill. One of the Legal Officers spoke about the Bill at the London Pride Rally in July 2004.
There was a pressing need for UK law to recognise and protect the dignity of committed, monogamous, loving relationships, regardless of a couple's sexual orientation. The Act seeks to give effect to a basic human right guaranteed by the European Convention on Human Rights and the Human Rights Act - to be treated equally without discrimination in one's private life.
The UK lagged behind other European and Commonwealth countries in this regard. Belgium, the Netherlands and the Canadian provinces of Ontario, Quebec and British Columbia had already legalised same-sex marriage. A bill had been drafted to extend same-sex marriage rights throughout Canada. Denmark, Finland, France, Germany, Iceland, Norway, Sweden, Switzerland, Vermont, California, Hawaii, New Jersey and Nova Scotia provide most of the rights and responsibilities of same-sex marriage but use a different label.
The Act's predecessor was Lord Lester's Private Member's Bill introduced in 2002, the Civil Partnerships Bill 2002. The Bill was given a Second Reading in the House of Lords on 25 January 2002. The decision was taken not to take the Bill further following Second Reading in order to give the Government the opportunity to conduct an inter-departmental review in relation to civil partnerships and formulate its position on the proposed civil partnership registration scheme.
In June 2003, the Women and Equality Unit in the Department of Trade and Industry published a consultation paper entitled, 'Civil Partnership: A framework for the legal recognition of same-sex couples'. The paper sets out the Government's proposals for a civil partnership registration scheme. The Odysseus Trust responded to the consultation by sending in a copy of Lord Lester's Civil Partnerships Bill which was more far-reaching in its scope not least because it sought to provide protection for unmarried heterosexual couples as well as same-sex couples.
In November 2003, the Women and Equality Unit published the responses to their consultation paper. 84% of individuals responding supported the principle of a civil partnership scheme.
The Act has been widely welcomed, though it encountered some obstacles in its passage through Parliament. It faced determined opposition from the Conservative Party within the House of Lords. A wrecking amendment was made to the Act which would have allowed certain groups of relatives to register as civil partners, provided that they were both over thirty years old and had lived together for a continuous period of twelve years. They could have been of the same-sex or opposite-sex. The amendment was widely condemned, most notably by the Parliamentary Joint Committee on Human Rights, of which Anthony Lester was a member. When the Act reached the House of Commons it was restored to its original purpose. The status of civil partnership, being akin to civil marriage, is completely inappropriate for this wider group. The majority of the House of Lords accepted this when the Bill returned to them, and the second attempt to wreck the Bill was defeated.
The key flaw with the Act as initially drafted concerned survivor pensions. It perpetuated unfair discrimination against the survivors of civil partnerships by allowing pension schemes to base survivor pension provision on service from the date of enactment of the Bill, whereas a married surviving partner will receive a pension calculated on the whole length of his/her service. The Government argued that schemes could not afford to provide equality to civil partners. Fortunately, an amendment drafted and backed by the Trust succeeded in backdating survivor pensions for civil partners to the beginning of the 1988/89 fiscal year. The amendment therefore puts surviving civil partners in the same position as widowers, and is a great improvement to the rights of same-sex couples who enter into a civil partnership.
The Trust has also widened the list of countries that are explicitly recognised as having a scheme equivalent to the UK's civil partnership scheme. The Government accepted an amendment the Trust had drafted and the Canadian provinces of Quebec and Nova Scotia were added to the list. Massachusetts also meets the requirements of the Act, however has not yet been added to the list. The Trust has, however, been working in partnership with a human rights group in Massachusetts. This has resulted in a letter from the General Court of Massachusetts, with signatures from the State Senator and 24 State Representatives, being sent to the UK Government, which will force them to keep this situation under review.
The Civil Partnerships Bill 2002 was the joint initiative of the Odysseus Trust and Stonewall. The Bill sought to enable unmarried couples, both same and opposite sex, living in a mutually supportive relationship to make legal provision for their joint protection.
The Civil Partnerships Bill proposed a new legislative scheme for the recognition of the relationships of unmarried couples and provides a package of benefits and responsibilities for registered couples. It established a framework for the mutual care and support of the partners in a civil partnership and the organisation of their common life together. The Bill provided for the registration of a relationship between two individuals, setting out the conditions that must be satisfied before the relationship can be registered. It made provision relating to the partners' property, allowing partners to decide for themselves, so far as possible, the arrangements for allocating property between them but including a default procedure in the event that no satisfactory arrangements can be agreed. Other fundamental protections in the Bill included safeguards for partners in adverse circumstances such as ill health or domestic violence. There was also a provision to treat civil partners as a single unit for the purpose of assessing certain means-tested benefits.
International human rights law does not yet require that the ban on same-sex marriages be lifted. However, it is established in the case-law of the European Convention on Human Rights (the Convention) that a difference in treatment based on sexual orientation is covered by Article 14 (which guarantees enjoyment of the other rights without discrimination on any ground) and that where sexual orientation is the ground for different treatment, there is a need for particularly weighty justification. In 2004 the House of Lords considered the implications of these developments under the Human Rights Act 1998, in the landmark case of Mendoza Ghaidan v Godin-Mendoza (FC)  UKHL 30 (21 June 2004). The Law Lords decided that the phrase in the Rent Act "living together as husband and wife", in relation to succeeding to a statutory tenancy on the death of a partner, must be interpreted to include same-sex couples in order to be compatible with Convention rights. They found that as same-sex couples can have exactly the same sort of interdependent relationship that heterosexuals can, they should be treated in a comparable way. The Law Lords pointed out that affording heterosexual couples more favourable treatment did not serve the aim of protecting the family or encouraging stable relationships. Excluding same-sex couples from the protection given to the security of tenure of heterosexual couples failed to serve any legitimate aim and was incompatible with Article 14. It is strongly arguable that continuing to define marriage as a relationship "between man and wife" will soon be held to be in conflict with the Convention.
Schalk and Kopf v Austria
Last updated August 2009