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Jill Kirby: Now Lady Hale strikes another blow against what’s left of marriage


This might be International Marriage Week but the Supreme Court has just laid down another reason why couples should not bother to get married. The Court has ruled that the local government pension scheme in Northern Ireland must award a “widow’s pension” to a deceased employee’s cohabiting partner – even though the deceased had failed to opt his partner into the scheme, as its rules required. Readers will not be surprised to learn that Lady Hale, long known for her antipathy towards marriage, was among the judges responsible for yesterday’s ruling.

In a decision which will seriously undermine the legal status of marriage, the judges said that as the pension opt-in is not required for married couples, cohabitees should not suffer the “unlawful discrimination” of having to make such a decision. It would, they declared, be contrary to Article 14 of the European Convention on Human Rights.

Taken to its logical conclusion, this threatens to empty the institution of marriage of all meaning. If marriage cannot confer any special protections or privileges, these being inimical to “human rights”, then it is hollow and pointless: a mere ceremony.

In the course of its decision, the Supreme Court rejected the idea that cohabitees should have to make a “public commitment” of the kind required by signing the opt-in form. The fact that a spouse (or registered civil partner) of a deceased scheme member would be automatically entitled to inherit pension benefits, without having to do anything else to prove their interdependence is, in the judges’ view, unlawful.

But this is to ignore the fact that a married couple have already made a “public commitment”: namely, getting married.

According to the Supreme Court, however, marriage can no longer of itself no longer confer any special status – and to suggest otherwise is inimical to a person’s human rights.

Defending their decision to refuse a pension in this case, the Northern Ireland government administrators of the pension fund argued (quite reasonably, you might think) that, “if a Scheme member chooses to have a cohabiting relationship which is neither marriage nor civil partnership, the requirements [to opt in] are an appropriate means by which to determine the existence, formality and status of the relationship in addition to obtaining independent verification of the deceased’s wishes.” To most people that would surely seem a perfectly sensible way to avoid wrangles about the true intentions of two people in an informal relationship.

Not to the judges. Such a piece of paper would be an “unreasonable burden” upon the cohabiting couple.

Yet I seem to recall that when civil partnerships (and later same sex-marriage) were introduced, it was argued that these were necessary to remove discrimination against couples in committed relationships who were unfairly treated, especially in matters such as pension entitlement and next-of-kin. Marriage would be open to all, and with it the rights and responsibilities that this important institution conferred. Clearly I underestimated the ability of the European Convention – and its gold-platers in the Supreme Court – to turn that argument on its head.

In 21st century Britain, where everyone is given access to marriage, regardless of their sexuality, surely there is no reason to confer marital status on those couples who do not marry? Indeed, isn’t it an interference with freedom of contract that a person who chooses not to marry should be deemed by the law to be under the same obligations as those who do marry? In its eagerness to embrace equality, the Supreme Court seems untroubled by this implication.

If this is a human right, such rights have made the law an ass.

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Jill Kirby
Jill Kirby
Jill Kirby is a freelance writer, commentator and policy analyst specialising in social policy

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