Eviane Feijts 26-10-2022

“FAMILY LAW: FORMAL VS CARE -ORIE NTED PERSPECTIVES”

In the 2008 case of Burden and Burden versus the United Kingdom, the objection of

the applicants included the fact that as two cohabiting sisters, one would be required to pay

the inheritance tax on the deceased other’s share of the family’s residence; however, a survivor

of a married heterosexual couple or homosexual couple registered under the ‘Civil Partnership

Act 2004’ would be relieved from disbursing inheritance tax. This objection was eventually

overruled by the court, argued that siblings cohabiting in an owned property under their shared

name were not eligible for the same tax exemption in the case of one of the co-owners

deceasing as that for spouses or civil partners. Since the relationship of co-habiting sisters

exemplifies a vastly different kind of relationship than a couple or civil partners, such tax relief

is not a case of discrimination against the siblings (European Court of Human Rights, Grand

Chamber, 2008).

More specifically, the European Court of Human Rights situated the familial relationship

between the two applicants as in a relationship as “an accident of birth” (Case of Burden V.

The United Kingdom, 2008, p. 18). Since this is a relationship between two people that is

“indissoluble”, and not an agreement into a formal relationship that could potentially be broken,

the siblings fail to fulfill the requirement for a Civil Partnership Act couple. Had the applicants

been describable as in a corresponding position to a couple, the difference in treatment with

regards to inheritance tax could be argued as discriminatory (Case of Burden V. The United

Kingdom, 2008, p. 18). However, this indisputable difference determined the ruling decision of

the court, which was to deny Burden and Burden’s appeal. The question seemed not to be

whether the sisters could be considered family, but rather whether they could be in an

adequate kind of relationship to qualify for the Civil Partnership Act.

The two unmarried sisters – born in 1918 and 1925 - have lived together in a ”stable,

committed and mutually supportive relationship, all their lives” (Case of Burden V. The United

Kingdom, 2008, p. 4), therefore surely in a co-habiting, caring relationship. The Civil

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Partnership Act, established in 2004, was created with the purpose of providing same-sex

couples a formal system to recognize and legalizing their relationships, consequently creating

a legal relationship ‘as close as possible’ to a (heterosexual) marriage. The requirements for

this civil partnership includes being of the same sex; not being married or in a civil relationship

already; being over the age of sixteen, and not being within the ‘prohibited degrees of

relationship’. These prohibited degrees of relationship include a relationship typing as one of

the following, in a non-particular order: ((former) adoptive) child or ((former) adoptive) parent,

grandparent or grandchild, parent’s sibling, sibling (meaning brother, sister, half-brother or half-

sister), or sibling’s child (The National Archives, 2022, Schedule 1 Part 1 Article 1.1).

Therefore, this last requirement prohibits the Burden sisters to be qualified as ‘civil partners’.

In this case there is no dispute about whether the siblings could be considered fit to be

‘civil partners’; however, I believe that there evidently is a more fundamental problem that has

led to this conflict of interest. Since unfortunately traditional values are difficult to abolish

completely, it will be explored how to best navigate through these traditions while looking to

find an enjoyable way of life for ‘non-traditional’ life partners as well. ‘Civil’ in all dimensions of

its meaning is essentially defined by its relation to the commonwealth or the state. From this

point of view, the name and the aim of the agreement are logically connected. This brings us

to the next question; how is this partnership different form a traditional (heterosexual) marriage,

other than the defining factor of same-sex or opposite-sex coupling? There seems not to be

one.

Since society has come a considerable way from traditional values, the

heteronormative thought behind the practice of marriage should seem to have faded away, yet

many countries still believe marriage should specifically be between the two opposite sexes –

something that is much emphasized, leading to the question how this requirement is imagined

to be regulated, now that society hopefully is moving away from the gender binary towards a

genderqueer spectrum. Considering the wide arrange of traditional facets marriage is rooted

in, the question is raised whether society should perhaps move away from marriage altogether

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- however, marital rights still allow for several legal benefits and not to forget, marriage plays

a meaningful sociocultural role in romantic relationships. Historically, marriage has been a

strategic alliance for economic, social, religious, and other reasons (Shakargy, 2021, pp. 7-8).

However, most people like to believe society has more or less progressed from the difference

in economic advantages between the genders, eliminating the logic of a woman needing to

marry a man in order to have access to a financially prosperous life. Taking this into account,

the possible reasons legal marriage in the United Kingdom excluded same-sex couples were

being narrowed down closer and closer to a case of deep-rooted homophobia. Rather than

creating the Civil Partnership Act for same-sex couples, the requirements for marriage should

be adjusted and updated to include other members of society as well.

Since humans are social beings and everyone benefits from community care, the Civil

Partnership Act would be ideal for long-term platonic relationships between individuals who do

not wish to get married but are choosing to have a life together, and therefore deserve to

receive benefits suited for people in co-habiting state with a durable reciprocal bond, as well.

That said, not allowing ‘traditional’ marriage for same-sex couples and arguing to include

siblings together with same-sex couples in qualified applicants for the Civil Partnership Act

would be inadequate with regards to same-sex marriage, something that fortunately today has

been legalized in various countries.

If we were to reformulate the meaning of a civil partnership, it is important to consider

that the main desire for people hoping to take part in this partnership is regarding financial

reasons. Therefore, legal administrative alterations could be kept to a minimum. Furthermore,

in order to avoid misuse or fraud (Shakargy, 2021, p. 23), the requirements of cohabitation for

a certain amount of time and again the exclusion of already married couples can be

implemented. Other than that, the reformed Civil Partnership Act would leave the possibility

for a self-determination of platonic partnership, and allow life partners like the Burden sisters

to receive the other person’s inheritance similarly to another person’s significant other.

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BIBLIOGRAPHY

Case of Burden v. The United Kingdom: Judgement (No. 13378/05). (2008). Council of

Europe.

European Court of Human Rights, Grand Chamber. (2008, April 29). PROPERTY: Burden v

UK. Family Law. https://www.familylaw.co.uk/news_and_comment/burden-v-uk

Shakargy, S. (2021). OUP accepted manuscript. International Journal of Law, Policy and the

Family, 1–30. https://doi.org/10.1093/lawfam/ebab017

The National Archives. (2022). Civil Partnership Act 2004: Absolute Prohibitions.

Legislation.gov.uk.

https://www.legislation.gov.uk/ukpga/2004/33/schedule/1/paragraph/1