Does Civil Partnership Equal Gay Marriage?

8th March 2015 by

 

This article looks at the implications for same-sex couples of the introduction of the Civil Partnership Act 2004. Healys’ family law solicitors in London and Brighton can advise on all legal implications of civil partnership agreements and dissolutions.*

Marriage is “the voluntary union for life of one man to one woman to the exclusion of all others” Hyde v Hyde and Woodmansee (1866)

“Marriage requires the participation of two persons, one a man, the other a woman” Rayden on Divorce 17th Edn

Are such definitions relevant today now the Civil Partnership Act has come into force?

In December 2005 the Civil Partnership Act 2004 (the “Act”) came into force. It created a new legal status for same sex couples and was arguably one of the most significant pieces of family legislation in recent years. Civil partners acquired a raft of new rights and responsibilities which, subject to some key differences, places them on the same legal footing as married couples. The Act adopts a model based closely on marriage and it is true to say that the model is closer to that of marriage than the registered partnership models in other EU states, whilst falling short of actual same-sex marriages as are permitted in, for example, Netherlands and Belgium.

Same-sex couples can be in long term stable relationships sometimes for their whole lives, but until recently, had no pension rights, often had their homes threatened or lost to inheritance tax and had no status as next of kin in the event of the death of one partner.

How are civil partnerships formed?

So, how do same sex couples register their partnerships? Can they go into a church or other religious establishment and effectively “get married?” The answer is no. The registration of a civil partnership must take place in England and Wales and may not be held in religious premises. “Religious premises” are defined as places used solely or mainly for religious purposes. Civil partnerships are formed when two people (not of the opposite sex, not already a civil partner or married, not under 16 and not within prohibited degrees of relationship) have signed a “civil partnership document” in the presence of each other, the registrar and two witnesses. The witnesses and the registrar must then sign the “civil partnership document”. Civil partnerships will be formed without the exchange of vows. These formalities will be carried out at a register office or any other premises licensed for that purpose.

How are civil partnerships ended?

The simple answer is that they are ended in a very similar manner to the ending of a marriage. Instead of divorce, civil partnerships are dissolved and, as with marriage, civil partnerships cannot be dissolved within their first year. Again, similar to divorce, the sole ground for dissolution is that the partnership has irretrievably broken down. As evidence that the civil partnership has irretrievably broken down, the applicant must satisfy the court of one or more of the four facts as set out in the Act. These are, in essence, the same as the divorce facts; unreasonable behaviour, 2 years separation with consent, 5 years separation and 2 years desertion. However, missing from this list is adultery. This is because adultery, as defined in Rayden and Jackson on Divorce and Family Matters (17 edn), requires “at least partial penetration of the female by the male for the act of adultery to be proved.”

Financial provision on dissolution

The Act makes provision for financial relief for civil partners generally. The Act makes it clear that Schedule 5, which contains the financial provisions, “corresponds to provision made for financial relief in connection with marriages by the Matrimonial Causes Act 1973”. This is clear indication that the purpose of the civil partnership regime is to extend the rights and responsibilities in marriage as regards financial provision to same sex couples who choose to register their partnerships.

Available orders, as in divorce, deal with maintenance, lump sums, property adjustment, sale of property and pension sharing.

Children & Adoption

Previously, a non-birth parent had to apply to court for permission to make an application for contact and residence in relation to a child. The Act now provides that any civil partner in a civil partnership is entitled to apply for such orders without having to seek the prior permission of the court.

Formerly, a joint application for an adoption order could only be made by a married couple. However, the Adoption and Children Act 2002 (the “2002 Act”) provided that an adoption application could be made by a “couple”. This is defined as “two people (whether of different sexes or the same sex) living together as partners in an enduring family relationship”. The Act has amended the 2002 Act so that it is explicitly stated that this includes two people who are civil partners.

Tax

Civil partners will be taxed like married couples. For example, the inter-spousal inheritance tax exemption and exemptions for lifetime gifts and transfers will apply to civil partners. In respect of capital gains tax it is envisaged that civil partners will be restricted to a single principal private residence exemption (as for married couples), but that the no gain/no loss rule on transfers between married couples during the fiscal year of separation will be extended to civil partners.

Immigration

It is envisaged that Immigration Rules will be amended to treat civil partners in the same way as married couples. Also, civil partners will have the same rights as spouses to acquire or resume British nationality by registration or naturalisation and to renounce British nationality.

Death

If a civil partner dies without a valid will, he/she will have similar rights on intestacy as a surviving spouse. For example, if the deceased leaves no children, the civil partner will be entitled to receive the personal possessions, £200,000 and half the residuary – the other half of the residue going to other relatives.

Conclusion

The Act no doubt allows same sex couples to publicly express their commitment to each other and arguably remedies a deficiency in the law which was seen by many as discriminatory. According to the Government the Act is an equality measure – not to introduce same sex marriage, because of the religious connotations of holy matrimony, but to introduce a twenty first century approach, a new legal institution, equivalent and parallel to civil marriage.
Healys family law solicitors in London and Brighton
The implications of undertaking any legal agreement, particularly a civil partnership or marriage, are many fold and it is essential to get specialist advice to potentially protect your interests in the immediate and long term future.

The specialist family law solicitors at Healys in London and Brighton are experienced in all aspects of law surrounding same-sex relationships including pre-civil partnership agreements (pre-cips), civil partnership dissolutions and financial settlements on dissolution.

Healys’ solicitors can help by listening sensitively and giving you straightforward legal advice so you can weigh up what options will work best for you

For advice regarding civil partnerships please call Catherine Taylor on 01273 669 124 or e-mail on catherine.taylor@healys.com

*The information in this article is intended for general guidance only. It provides useful information in a concise form and is not a substitute for obtaining legal advice. If you would like advice specific to your circumstances please contact us.