08/02/2016 12:46 GMT | Updated 08/02/2017 05:12 GMT

Unequal Marriage: Either Apply Civil Partnerships Equally or Scrap Them

At the end of last week, a heterosexual couple claimed in the high court that their exclusion from civil partnership was discriminatory. Gay couples who want to legalise their commitment to one another can do it in one of two ways: either through civil partnership or through marriage. Heterosexual couples, on the other hand, have only one choice: marriage.

In an age of equality, this doesn't seem fair, the couple argued. Because of the historical baggage attached to the word 'marriage', they would rather formalise their arrangement through civil partnership. Gay couples have a choice. So why not them?

Well, the judge threw out their claim in effect because the two arrangements are legally identical. This is true. I happen to work with a former high court judge who informs me that about three words distinguish the legal status of civil partnership and marriage. The whole confusion came about because the government introduced rights for gay couples in 2004 and called it civil partnership. At the time, there was no call for gay marriage. Times and governments change. In 2014, the government introduced gay marriage, leaving civil partnerships as something of a historical hangover.

So what is the sensible solution to this?

Whatever the answer, civil partnerships must be retained for those that already have them.

Abolishing them altogether is not going to happen. Nor should it. One day two people are 'civil partners'. The next day they have no legal status. A couple who happened to be going through a normal non-terminal bad patch would suddenly find themselves forced to make a deliberate choice whether to marry or not. No.

Nor should existing civil partners be forced to convert automatically to 'married' status. Conversion might leave their legal status unchanged. But the whole argument for introducing 'marriage' for gay couples in the first place was because of the idea there is something special involved in getting and being married.

Abolition, with or without automatic conversion, might deal with the historical anomaly. But it's clearly a non-starter.

As for extending civil partnerships to opposite sex couples, maybe the aggrieved couple will get a more sympathetic audience from the court of appeal. It seems unlikely. Their better hope is to build a political campaign to change the law in parliament. However I can't see much of a bandwagon developing here either. There has never been much evidence of demand for civil partnerships for heterosexual couples. The one time such an informal scheme existed, just 998 couples signed the London Partnership Register over a three year period between 2001 and 2004. Given that this high profile scheme was promoted as a forerunner for civil partnerships, and therefore primarily for same sex couples, there was no great stampede for unmarried registration by legions of repressed opposite sex couples.

Whatever the history of marriage, the couple's complaint that 'marriage' remains patriarchal and unequal today is patently wrong. Whereas until forty years ago, almost all couples who had children were married, today marriage is a genuinely free choice. Patriarchy has no opportunity to survive or thrive in such a setting.

Moreover, for a relationship to be unequal, there needs to be an imbalance of power. In relationships, power rests with the person who has least commitment. Marriage provides the framework most likely to equalise power. Couples share the same vision of a future together, ambiguity is removed and intentions are crystal clear. It is precisely outside marriage that power imbalances remain.

A few years ago, I did a study of 236 couples who had become new parents - Back off or Fire Back. Results revealed significant differences in the way married couples and cohabiting parents interacted during arguments. These patterns were entirely commensurate with these power differences. Cohabiting couples were twice as likely to argue in a way that one partner was dismissive and the other fearful. Far from being unequal, marriage represents the most equal of relationships.

On this basis it shouldn't surprise anyone to learn that, among all the dozens of factors that might be associated with domestic violence against women, being married comes bottom of the list. Yes, bottom. Marriage is the safest place to be. (See Appendix: Table 4.09 Column H of this ONS release if you doubt it)

So is there any case at all to continue civil partnerships further? I don't think so. However were a groundswell to emerge of couples who want to commit but don't want the baggage of the word 'marriage' - for whatever reason - I would be delighted if they want to do it via civil partnership. What matters is the expresson of commitment. Whether you call it 'marriage', 'civil partnership', or 'scrambled eggs', is neither here nor there.

The most obvious solution to this historical problem is therefore to maintain existing civil partnerships, scrap new ones altogether, and thus have one single arrangement for all couples from hereon in. But if I'm wrong about the bandwagon, then I wish the couple the best of luck with their appeal and extension of civil partnerships to opposite sex couples.

Whatever the legal rights and wrongs, the present situation is clearly unequal.

Harry Benson is Research Director for Marriage Foundation, a charity set up by a former high court judge to restore confidence in marriage. Read his blog here.