In this article, Family Law expert Alex Curran, Payne Hicks Beach, looks to answer some of the most frequently asked questions on the differences and benefits of civil partnerships vs marriage for same sex partners, as well as explain process of dissolution of a civil partnership, if that difficult decision is made.
What is a civil partnership in UK law?
A civil partnership is a legally recognised relationship between two consenting adults, be they a same-sex or opposite-sex couple. When the Civil Partnership Act 2004 was passed by the UK parliament, it brought with it the right for same-sex couples (at first) in England and Wales, Northern Ireland and Scotland to have their relationships legally recognised and protected union for the first time; a huge milestone in the LGBT history of the UK. Never before had same-sex couples been afforded the same treatment as opposite-sex couples regarding financial support on relationship breakdown, inheritance or decisions to be made by a next-of-kin in law.
Since 2004, civil partnerships have evolved and are now open to opposite-sex couples as well as same-sex couples, with the law being updated in England in 2019, Northern Ireland in 2020 and Scotland in 2021.
Equal marriage was introduced in England and Wales with the passage of The Marriage (Same Sex Couples) Act 2013 and so anyone in a committed relationship can choose between a marriage or a civil partnership. Couples in an existing civil partnership can apply to convert their partnership into a marriage if they wish but it is not mandatory. Equal marriage was introduced in Scotland and Northern Ireland in 2014 and 2020 respectively.
Who can enter into a civil partnership?
Any two people, be they in a same-sex or opposite-sex relationship that are over 18 can enter into a civil partnership.
How do civil partnerships differ from same sex marriage in the UK?
Nowadays, the differences are fairly limited and mainly revolve around how a marriage and civil partnership are formed, referred to and ended. For example, whilst a marriage can have religious elements and be performed on religious sites, that is not possible for civil partnerships. A civil partnership ends by way of dissolution rather than divorce.
Before the law in England and Wales was changed to provide for no fault divorce, one factor to rely on in support of a divorce was adultery, which was legally defined as sexual intercourse between a married person and a member of the opposite sex that was not their spouse. Because adultery was defined in law as taking place between members of the opposite sex, it could not apply to people in civil partnerships as they were only open to members of the same sex. Anecdotally, prior to no-fault divorce it was always the case that if a wife discovered her husband had sex with another man, she would not be able to divorce him on the basis of adultery for this same reason.
What are the legal rights and protections of civil partners?
There are many different rights and protections that exist during the civil partnership and at its end. There can be benefits from a personal taxation point of view or as regard pensions, and proper financial advice should always be taken to investigate how being in a civil partnership may benefit you both as your partnership endures. Being someone’s civil partner also confers upon you both the legal status of being your partner’s next-of-kin, meaning that you are each, in law, recognised as being the other’s closet relative which can be of vital importance especially when it comes to medical emergencies and important medical decisions. This was one particularly sensitive area why, for same-sex couples, law reform in the shape of the Civil Partnership Act 2004 was so vital in order to address situations where members of the LGBT community had been in enduring and committed relationship for years but were then excluded from being involved in critical decisions about the welfare of their loved ones at crucial moments.
How to enter a civil partnership in the UK?
There are certain formalities that need to be adhered to, such as the ceremony being devoid of any religious content and needing to provide a minimum of 29 days’ notice before a civil partnership can be entered into. There are also limiting factors to comply with certain aspects of public policy, such as people who lack the mental capacity to make decisions in their own best interests and people that are already in a legally recognised relationship. These apply in equal force to civil partnerships and marriage, be they between opposite-sex or same-sex couples.
How to dissolve a civil partnership in the UK?
A civil partnership cannot be dissolved unless you have been in that partnership for at least a year. You need to certify to the court that the partnership has irretrievably broken down, which is a simple statement made to the court confirming that to be the case. You can either apply on a sole basis or jointly with your civil partnership if the decision that the partnership is over is a mutual one.
Once the court papers have been issued and formally acknowledged by your partner, you have to wait a mandatory 20 weeks before you can apply for the Conditional Order – the stage at which the court certifies that your civil partnership has broken down in law and that you are entitled to dissolve it. Six weeks and one day later you can apply for the Dissolution Order, being the final order that terminates your civil partnership and grants you back your single status.
Are civil partnerships recognised internationally?
This varies on a country-by-county basis. For example, countries that also recognise same sex partnerships are more likely to recognise civil-partnerships than those that do not. Anyone in a civil partnership considering a move abroad should take local advice about whether or not national law in their host country recognises same-sex relationships, be they same-sex civil partnerships or a same-sex marriage. Whilst one might anticipate certain countries with poor LGBT track records not to recognise same-sex civil partnerships and marriage (Saudi Arabia, Russia) there are countries within the EU (Poland, Romania and Bulgaria to name a few) that either have constitutional bars on what constitutes a marriage or whose Supreme Courts have decided to limit the rights of same-sex couples.
Why should you seek legal advice when entering a civil partnership?
A civil partnership is not something that one should enter into lightly. It creates rights and responsibilities as between the civil partners, akin to marriage. Upon the dissolution of a civil partnership, there will be financial claims for the division of property, the sharing of pensions and maintenance (alimony, in the USA) that will need addressing. If you are considering entering a civil partnership and you have assets, income or an inheritance that you might want to protect if your relationship broke down, you should seek specialist advice about how to protect those assets and resources.
For further information, please contact Alex Curran or your usual contact in the Family Department or, alternatively, telephone on 020 7465 4300.
