Sisters, Inheritance and Civil Partnerships

You’ll have seen the story in the past few days that the European Court of Human Rights ruled against a couple of elderly sisters who wanted to have the same inheritance tax rights as two women in a Civil Partnership. Here’s the Telegraph’s report:

In a 15-2 vote, the European Court of Human Rights in Strasbourg ruled that Joyce Burden, 90, and her sister, Sybil, 82, do not face unfair discrimination under British inheritance tax rules.

The pair argued that they should be spared inheritance tax in the same way as married couples, or homosexuals who form a civil partnership.

The sister who lives longest faces having to sell the family home in Marlborough, Wilts, when the other dies in order to meet the cost, estimated at more than £200,000.

The sisters claimed British inheritance tax laws breached their human rights by exempting married and gay couples, while targeting cohabiting siblings.

But the Grand Chamber of the human rights court upheld an earlier ruling that national governments were entitled to some discretion when deciding taxation arrangements.

The decision means that when one sister dies the other will have to sell their four-bedroom property to pay the 40 per cent inheritance tax on its value above £300,000.

The house is worth about £875,000.

If they had won their case, British inheritance tax law would have had to change, to place cohabiting couples on an equal footing with married couples and “civil partnerships” in being exempt from inheritance tax.

The sisters, who have been asking the Government to look at their case for 30 years, decided to write to the European courts after Labour introduced the Civil Partnership Act in 2004.

The Act granted the same right to gay and lesbian couples to avoid inheritance tax as married couples, but not to cohabiting family members.

Quite right too.

Yes, you read that correctly. I am of the opinion that the Court made the right decision, and here’s why.

Step back ten years to when Civil Partnerships were just a legislative pipe dream. Imagine that you hear a news story that a brother and sister who happen to live together want to have the same inheritance tax rights as a married couple. What would your reaction be? Do you think that the brother and sister should have the same inheritance rights as a married couple? What about an unmarried couple? How about children?

As I’ve been reading some conservative blogs commenting on the news of the sisters’ defeat, the most disappointing thing in the content of the replies to the news has been the misunderstanding that this issue has *anything* to do with gay rights versus non-gay rights. For example, in the Daily Mail Tom Utley writes:

By a majority of 15 to two, this foreign tribunal ruled the sisters’ relationship was “fundamentally different” from that of homosexual and married couples.

For this reason, the court found it was perfectly all right for the British Government to offer couples such as Sir Elton and Mr Furnish exemption from inheritance tax, while insisting the Burden sisters should cough up.

Well actually yes, Mr Utley, there is something fundamentally different between the case of the sisters and, for example, my wife and I (and interestingly why Tom Utley chose to highlight a gay couple rather than a married couple beats me, because the sexuality of the legal partnership, gay or straight, has nothing to do with the legal case at hand). The difference is that the state has chosen to give marriages and civil partnerships special inheritance priveliges that they do not give to other couples and any other relationships, biological, familial or otherwise. The Burden sisters could equally argue that they were being discriminated against in favour of married couples for as much as it mattered.

Like it or not, the Parliament legislates to allow the Government to recognise and favour particular relationships, whether marriage, civil partnerships, limited companies, charities or any other social structures which society contains. It can decide on our behalf which are promoted or discouraged and the legal outworkings of that have may or may no have anything to do with moral equivalance. What the ECHR ruling highlights for us in the UK is very clear – something is not similar in the eyes of the law unless the legislative deems it so to be. Living within a structured society implies that we accept that the state will favour certain social frameworks, but the presentation to the body politic of a different social structure accompanied by a claim that it should be treated similarly is not in and of itself any justifiable reason for the body politic to accept such a variant in its recognised social structures. Just because two sisters are the same sex as a civil partnership does not in any sense mean that the state has to recognise them as legally identical.

But before you think I am becoming an outragous liberal, consider that this viewpoint that I am putting forward is exactly the same argument that could be used against Civil Partnerships in the first place. In the same way that just because a pair of sisters living together is claimed to be the same as a same-sex couple doesn’t justify it in any way being treated identically in the eyes of the law, a same-sex couple that looks for all intents and purposes like a married couple does not, in and of itself, create an argument that a same-sex couple should be treated like a married couple. Indeed, if society so chooses to recognise one relationship as legally identical to the other it may freely do so, but unless you have some form of objective indisuptable moral framework which the law is intended to reflect, any claim that a form of human relationship should be given legal equivalence to another, or be given a different legal status, is just that – a claim. It has no moral integrity in and of itself but relies for force of argument only upon the opinion of the specific members of the body politic who create the judical and societal framework within which we live. That’s not to say that the introduction of Civil Partnerships was an incorrect move, but it it is to say that we need to carefully consider the real reasons we object to or support the legislating of the recognition and beneficing of any kind of social structure or arrangement, marriage, civil partnership, family or otherwise.

Now, all this is not to say that there isn’t a case for reworking the inheritance tax law in this country. At present parents working hard to provide security for their children and loved ones are penalised when they die as the Exchequer takes 40% of all the wealth above a certain threshold. The income from this forms a miniscule part of the HMRC’s income and it causes huge resentment amongst the increasingly wealthy middle class as the surge in house prices of the past decade makes more and more families liable to the punitive Inheritance Tax rates. So let’s have a good discussion in this country about whether we need this tax anymore.

But let’s not make the mistake of thinking that this issue has *anything* to do with gay rights versus others’ rights. It has nothing to do with that and the longer social conservatives (of which I number myself one) think they can make any political capital from making it out to be such a struggle, the longer they will put off the vast majority of people in this country who, whilst mildly socially conservative, are able to see the whisps of homophobia in the reaction to this news for what they are.

It’s time for social conservatives in the UK to have a sensible debate about the elimination of inheritance tax, and it’s also about time we stopped seeing the “promotion of homosexuality” around every legislative bush. The case of the Burden sisters has nothing really to do with Civil Partnerships and everything to do with understanding how we make laws and shape social structures in this country.

10 Comments on “Sisters, Inheritance and Civil Partnerships

  1. Hi Peter,

    I don’t really understand what you are thinking. The way I understand the Civil Partnership law, it doesn’t require the legal partners to be sexually active. It allow any two people that would plan to pass on their property to each other to join together to avoid the inheritance law. Any two people except blood relatives. It is basically an anti-family law.

    I guess I think this way because I did have three maiden great aunts. So, it did see that two unrelated people had a benefit that family members were denied. If the sisters were instead very good friends (not sexual partners), they could register as partners and avoid the inheritance taxes. But being sisters, this was denied to them.

  2. Hi Peter and Perpetua,

    just a quick comment as am at work…

    Perpetua, you say that “…the Civil Partnership law” does not “require the legal partners to be sexually active” – but as far as I am aware neither does the law on marriage. The law can’t coerce folk into consummating a marriage but there’s an expectation that that will happen (adultery etc being grounds for divorce). Civil partnership law (if i understand rightly) closely mirrors the law on marriage except that adultery isn’t a ground for dissolving a CP, because legally adultery has to involve heterosexual sex. However, according to a lawyer who gave a talk on CPs at Greenbelt, unfaithfulness to a CP could be cited as ‘unreasonable behaviour’ and so could be grounds for dissolving it (maybe this is what Pete Burns will do? – though the article you posted Peter, doesn’t mention that I don’t think). Also (scuse my argumentative streak) CPs are not just for “Any two people except blood relatives” – you have to be over 16 and of the same sex as well as unrelated.

    Peter, for what it’s worth I like your argument here (I would say that wouldn’t i, you may think!) – I think it’s right that this case is also about inheritance tax and the rationale for it. One tiny thing though – you say “why Tom Utley chose to highlight a gay couple rather than a married couple beats me”, but isn’t this linked to the Christian Institute’s (and others’) campaign that CPs should be open to (say) 2 brothers or 2 sisters, so that they wouldn’t be essentially gay marriage?

    in friendship, Blair

    • Hi Blair,

      I think that the Christian Institute’s argument is wrong because they wouldn’t ever even dream of asking for marriage to be extended to brother and sister.

      I know I’m upsetting a lot of conservatives with this post, but I really do think we need to be arguing the right debates. The one over whether we should have Civil Partnerships in the first place is past now, so let’s stop sticking our head in the sand. We may not give Civil Partnerships an even vaguely moral equivalence with Marriage, but let’s recognise that in the eyes of the state we live in they are, to all intents and purposes, legally equivalent.

  3. It’s still relevant that Parliament has created an anomoly, in that adult single friends can enter into a civil partnership to gain tax-saving protection under the law, which is denied to those who are within the prohibited degrees for marriage/civil partnership. An amendment to the Civil Partnership bill was carried in the Lords which would have given this protection, but the government would not allow the bill to proceed with the definition of “civil partner” that it created – basically showing that “Civil partnerships” was all about protection for same-sex couples and not for remedying any other issue.

    However, I agree, Peter with your main premise: the debate should be to scrap inheritance tax for good. The 1997 Conservative manifesto promised to abolish IHT, but it’s a shame that it wasn’t it done in the 1992-97 parliament.

    • As long as a male and female friend with no sexual interest in each other are able to enter into marriage then civil partnerships do *not* create a legal anomaly. A morally dubious space perhaps, but not a legal anomaly.

      • As long as a male and female friend with no sexual interest in each other are able to enter into marriage then civil partnerships do *not* create a legal anomaly.

        Am I right in thinking that non-consummation of a marriage is a legal ground for its annulment – i.e. a (retrospective) legal declaration that the marriage never truly existed? And if so, does something equivalent apply to civil partnerships?

        • Interesting point.

          Non-consummation *is* grounds to dissolve a marriage, but *not* grounds to dissolve a Civil Partnership. There is a good legal opinion here:

          Civil partnerships can only be ended by death, dissolution or annulment. Two further differences arise here to marriage. Non-consummation is not a ground for annulment of a civil partnership and adultery is not a ground to dissolve a civil partnership. This is because the nature of the sexual relationship in a civil partnership is different to that in marriage. To dissolve a civil partnership it must have broken down irretrievably and one of four grounds must be satisfied. These are the same grounds for divorce (bar adultery) and the procedure is the same. It is not possible to ask the Court to dissolve a civil partnership in its first year.

  4. Hi Peter
    I think yours and Blair’s comments make a lot of sense. It occurs to me that the muddle between Holy Matrimony on the one hand and Civil Marriage (and its legal equivalence with Civil Partnerships) on the other could have been cleared up once and for all at the time CPs were legislated for. After all Civil Marriage is hardly an age-old institution. It is not the same thing as Holy Matrimony – a situation that France makes clear by keeping them separate (though complicated later by the introduction of PACS of course). But in essence the state in France kept out of Holy Matrimony and doesn’t allow ministers of religion to act as registrars. You have a civil ceremony at the Mairie and then go to church for the minister to conduct Holy Matrimony (not merely bless the union). Recently when Canada was considering opening up full marriage to same-sex couples one of the options considered was for the state to get out of marriage altogether and make everyone take out civil partnerships, leaving religions to conduct their own arrangements. This radical option was not chosen but in my view if it had been Christians would have had no grounds for complaint because they could always avail themselves of Holy Matrimony before a priest of religion.

    I realise the situation in England is unique since the Anglican Church is part of the order of state but once it is disestablished part of the package might be to hand back Holy Matrimony entirely to the churches (and take back registrarships?) The Catholic Church already does not recognise Civil Marriage as Holy Matrimony where one of the parties is a Catholic, and can only ‘allow’ state marriages to be recognised as such between baptised Christians who are not otherwise impedimented. The reason for this might look like quirky sacramental theology but in fact it is only a recognition of the fact that it is the parties involved, the bride and groom, who administer the sacrament to each other. The church stuff is merely to add a level of solemnity and control – and is post mediaeval. The Wife of Bath tells us that she took husbands at the church door. White weddings were a much later innovation. Sorry to ramble on but my point is that Christians who make a fuss about Civil Partnerships undermining marriage have yet to prove this is so and that it is not rather the people who gaily enter Holy Matrimony (Big White Weddings in Church) without seeing the distinctions between the sacrament and what they actually intend. These do more to undermine it, surely?

  5. Hi all,

    just a couple of little questions: to Peter, out of interest if legal provision for civil partnerships creates a “morally dubious space”, why don’t you campaign for the law to be reversed? am curious.
    And to Tom: i think you answered your own question, at least regarding the situation in England, as the C of E would have to be disestablished for “the state to get out of marriage altogether”. What about the context in Wales and Scotland though – is the situation there nearer what you were thinking (I don’t know how it works in those places). Also, Tom as you say in a marriage of two baptised folk “it is the parties involved, the bride and groom, who administer the sacrament to each other” – so what would that make of a civil partnership between two baptised Christians? Definitely agree that CPs don’t undermine marriage by the way.

    in friendship, Blair

    • Morning Blair,

      Before Civil Partnerships came into being I was firmly opposed to them. However, since then I have come to realise that the many couples they provide the financial and legal security which before-hand was denied them. It’s terrible to hear stories of partners bared from hospitals because they are not the legal “next of kin” – laws like the Civil Partnership legislation have changed all that.

      Let me give you another example. I am implacably opposed to abortion, but I am putting all my weight behind the 20 Weeks campaign, not because I think it’s OK to kill children that are 19 weeks old, but rather because I see it as the first step. In the same way, the public is mainly in support of CPs, so why beat one’s head against a wall. Better to concentrate on the free-speech amendments to the current hate crimes Bill.

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