Marriage and civil partnership 





As well as being a protected characteristic under the EA 10, marriage and civil partnership discrimination is likely to infringe Article 8 of the European Convention on Human Rights (the right to respect for private and family life), brought into UK law by the Human Rights Act 1998. 


To be protected because of marriage (heterosexual or same-sex) or civil partnership, you must be married or have a civil partner. Civil partnerships are lawful throughout the United Kingdom. Same-sex marriage is lawful in England, Wales and Scotland, but not yet in Northern Ireland. In Close & Ors, Re Judicial Review [2017] NIQB 79, the Northern Ireland High Court ruled that the issue of same-sex marriage in Northern Ireland is a political matter, to be resolved by the Northern Ireland Assembly, not the courts. 





Someone who intends to marry or enter into a civil partnership but has not yet done so is not protected by the EA 10. Neither is someone who is cohabiting, widowed, single, engaged or divorced (section 8, EA 10). 



The protection is against discrimination linked to the status or “institution” of marriage or civil partnership, as opposed to because you are married to a particular person (Hawkins v Atex Group Limited [2011] UKEAT0302/11/1303). In Gould v Trustees of St John’s Downshire Hill [2017] UKEAT/0135/17/DA, the EAT ruled that there could be marital status discrimination when an evangelical church dismissed a priest because his marital difficulties clashed with the congregation’s ideas about the institution of marriage. 



Same-sex couples who are married or in a civil partnership now have all the same legal rights as married heterosexual couples, including rights to pensions. Specifically, in Walker v Innospec Limited [2017] UKSC 47, the Supreme Court ruled that same-sex married couples and civil partners have the same pension survivorship rights as heterosexual married couples. This ruling abolished an exemption under the EA 10 concerning occupational pension survivorship benefits. That exemption had stated that it was not sexual orientation discrimination to deny civil partners and same-sex marriage partners pension survivorship benefits built up before 5 December 2005 (the date the Civil Partnerships Act 2004 came into force). The Supreme Court declared the exemption an unlawful breach of EU law. 


In R (on the application of Steinfeld) v Secretary of State for International Development [2018] UKSC 32, the Supreme Court declared unlawful the government’s ban on allowing opposite sex partners to enter into civil partnerships. The ban was ruled both discriminatory and incompatible with the Human Rights Act 1998. The Civil Partnerships, Marriages and Deaths (Registration) Act will come into force on 26 May 2019, lifting the ban. In Scotland, separate legislation is needed, as this is a devolved issue. A website, http://equalcivilpartnerships.org.uk, has been tracking the progress of the campaign.