Arguably, the ingeniousness of the Civil Partnership Act is the fact that it can produce a legal status of ‘civil partner’ that does not depend upon marriage, but which displays virtually all of the characteristics of a civil marriage. This is undoubtedly a strategy on the part of the government to avoid what it perceives as the likelihood of backlash to same-sex marriage in the UK. At the same time, it can fulfil its promise of equality by granting a legal status to committed same-sex couples. The government is strongly on record throughout its term of office as supportive of the institution of marriage for opposite-sex couples — as helping to foster stable relationships and as the best means to raise children — and civil partnership provides an alternative, politically saleable route for same-sex couples. The social benefits that marriage offers can be furthered through civil partnership, while avoiding the criticism that same-sex unions undermine the institution of marriage. As Labour Baroness Scotland made clear during the debate:
This Bill does not undermine or weaken the importance of marriage and we do not propose to open civil partnership to opposite-sex couples. Civil partnership is aimed at same-sex couples who cannot marry. . . . We continue to support marriage and recognise that it is the surest foundation for opposite-sex couples raising children.[112]
The stable couple form, it is argued, is good for the individual, for the couple, and for society (and the economy) as a whole. Long-term, traditional, stable, legally recognised relationships thus become the socially preferred option. Marriage is the ideal, but civil partnership — for those unable to marry — becomes an alternative which can further the same social policy goals. As the Government Minister Jacqui Smith explained in the House of Commons:
[W]e seek to create a parallel but different legal relationship that mirrors as fully as possible the rights and responsibilities enjoyed by those who can marry, and that uses civil marriage as a template for the processes, rights and responsibilities that go with civil partnership. We are doing this for reasons of equality and social justice.[113]
Opponents of civil partnership, not surprisingly, argue that the Act creates ‘a parody of marriage for homosexual couples’.[114] It is same-sex marriage in all but name. Moreover, the challenge offered by critics of the Act is itself ingenious. That is, if this is not marriage, then surely it is a status that should be available to others similarly situated to lesbian and gay couples, namely, all those who care for each other in an interdependent, committed relationship. Otherwise, those individuals (and groups of people, such as home sharers) are discriminated against by this legislation. When that argument is rejected by government, opponents can forcefully claim that this is a status that is marriage in all but name (and vows).
In order to bolster the argument in favour of the extension of civil partnerships to carers, friends, spinsters and spinster sisters, opponents of the Act, as it was introduced by the government, argued that the basis of the legislation should be explicitly contractual. Partnership, they claimed, should focus on recognising and supporting agreements between people to live intertwined, interdependent lives, and the state should provide its support to all such agreements. On this point, an amendment was made in the House of Lords to replace the term ‘relationship’ with ‘contract’, as part of the wider strategy of amendment to include carers, siblings and other dependent relationships. In this way, opponents hoped that the limitation within the Act to same-sex assumed sexual relationships would be rendered more difficult to sustain. If civil partnership is not marriage, then what can it be except a domestic contract? If so, then surely anyone can contract, including spinster sisters (or, for that matter, more than two people).
This argument has much logic. This does look like civil marriage in all but name designed to extend the perceived social benefits of marriage to an (assumed) clearly delineated group who most closely resemble married couples. There is no religious element (by law), and there is no possibility for an ‘official’ ceremony. But, even here, the material produced by the government encourages same-sex couples to plan little (or, one might imagine, lavish) ceremonies to mark the registration. One side benefit, mentioned in the Regulatory Impact Assessment that accompanies the legislation, is that with registration there ‘can be expected. . . a small increase in demand for the hospitality industry as the result of couples entering civil partnership choosing to hold a form of celebration in a similar vein to a wedding reception’.[115]
The conservative critique of the Civil Partnership Act is not wholly dissimilar to criticism of the legislation that can be offered from a more progressive or even radical perspective. The argument from this side of the spectrum is that if the state is going to proceed to recognise relationship forms outside of the institution of marriage, then it is an ideal opportunity to think about alternatives to the marriage model that might better reflect the diversity of relationship forms that exist. Such a rethink might also be an opportunity to come to terms with the feminist and other critiques of the institution of marriage which have been made forcefully for many years.[116] In other words, rather than extending marriage (in all but name), perhaps we should have thought about creating legal alternatives to marriage (open to all). However, this is explicitly rejected by government in quite a conservative fashion, through the (highly debatable) claim that such an approach might weaken the institution of marriage, which, it is assumed, would be a socially deleterious outcome.
An attempt at creating an alternative framework can be found in the Private Member’s Bill introduced in the House of Lords by Lord Lester (and subsequently withdrawn) in 2003. Lord Lester’s Bill was an attempt to produce an alternative, universally available model open to same-sex and opposite-sex couples. The Bill was particularly notable for the extent to which it moved away from the marriage model, allowing greater financial autonomy for couples during a relationship and on breakdown, including through contractual arrangements agreed in advance. It also created a simple no-fault procedure on breakdown, based on a two-month unilateral notice period. The Bill could be interpreted as a move away from status towards autonomy, contract, and reasonable expectations in relationships, to be negotiated and agreed by the parties, as well as easy exit (which is specifically rejected by the government in the context of marriage and partnership). There were other interesting innovations offered by Lord Lester, including a commitment period of cohabitation required before registration. The availability of this form of legal partnership to all cohabiting couples no matter what genders is particularly significant in that it would have created an alternative to marriage available to all, but which (unlike the Civil Partnership Act) was linked to cohabitation as a requirement.
For those who advocate this approach, the Civil Partnership Act can be seen as disappointing. It is the creation of a new status (in an old wedding dress) available to same-sex couples, but not opposite-sex couples, for whom it is marriage or nothing. For those heterosexual couples for whom marriage as an institution is unappealing (for personal, ideological or other reasons), this particular bundle of rights and responsibilities is not available. However, as it is virtually a marriage in all but name, it provides no real alternative anyway. Thus, an opportunity has been lost for radical reform in the family law area.
Politically, then, some liberals may view the Civil Partnership Act as a denial of equality of access to the status of marriage, rejecting the ‘parallel but different’ approach. Some conservatives (and radicals) see the Act as unfairly limited in its scope to those who define as a ‘homosexual couple’, rather than being available to others who share interconnected lives, for whom there is no status currently on offer. The Act thereby may prove to be either a clever means of satisfying the gay ‘constituency’ while avoiding the alienation of ‘middle England’, or a strategy which does not completely please anyone at all.