Civil partnership or same sex marriage
A number of my gay and lesbian friends have either celebrated or will be celebrating their 10-year civil partnership anniversary and this led me to reflect on the law in relation to civil partnerships and same sex marriages in the United Kingdom.
The Civil Partnership Act 2004 was ground-breaking legislation which came into force in 2005 in England and Wales, allowing same sex couples to enter into civil partnerships to obtain essentially the same rights and responsibilities as in a marriage. Legislation in England and Wales (the Marriage (Same Sex Couples) Act 2013) and in Scotland (the Marriage and Civil Partnership) (Scotland Act 2014) came into force in 2014 allowing marriage for same sex couples. There is no such legislation in Northern Ireland to allow for civil partnership and same sex marriage.
Couples who entered into a civil partnership can convert that partnership into a marriage under the Marriage (Same Sex Couples) Act 2013. Converting a civil partnership into a marriage is a relatively straight forward procedure, and indeed, friends recently converted their civil partnership into a marriage, resulting in them being issued with a marriage certificate, dated when their civil partnership was formed.
It is very much a personal choice as to whether a same sex couple choose to enter into a civil partnership or marriage, but how do they differ?
What is the difference?
A House of Commons research paper 14/29 14 May 2014: “Marriage of same sex couples across the UK: What’s the same and what’s different?” addresses this question. Civil partners have the same rights and responsibilities that married couples have in many areas including tax, social security, inheritance and work place benefits. However, a civil partnership is a legal relationship, distinct from marriage, which is currently exclusive to same sex couples. Other differences include:
- the formation of civil partnerships can only be a civil, and not a religious procedure, whereas, in relevant circumstances, couples may choose to have either a religious or civil marriage ceremony;
- adultery is not a basis for dissolution of a civil partnership (as it is for divorce);
- differences in procedure: civil partnerships are registered by signing the civil partnership document, with no words required to be spoken, whereas marriages are solemnised by saying a prescribed form of words;
- there are also differences around of some pensions rights
Ending a civil partnership or same sex marriage
Whilst my gay and lesbian friends are happy in their civil partnership or marriage, there are same sex couples who are not and may be thinking about ending their relationship, but what is the process?
Civil partners need to apply for a dissolution whereas married couples need to apply for a divorce. The process is similar and in either process, the civil partnership or marriage ends when the court grants a Final Order.
To apply for a dissolution or divorce, the couples must have been in a civil partnership or married for at least a year. The grounds for a dissolution or divorce is that the relationship has irretrievably broken down. The person seeking to apply for a dissolution or divorce must rely upon one of the following reasons or “facts”:
- Adultery – this is only available for a divorce and refers to sexual intercourse with someone of the opposite sex outside marriage
- Unreasonable behaviour – this fact can be used by a person applying for a dissolution of the civil partnership as it can include the other party having sexual relationship with someone else, regardless of their gender
- Two years’ separation with consent from the other party
- Five years’ separation without consent
- Desertion for a period of two years
Those thinking about or going through a dissolution or a divorce will have in mind resolving arrangements for the care and upbringing of their child/ren and/or arrangements in relation to their finance and property. If such arrangements can be agreed by the couples, this will cost them less – emotionally and financially. As a family law solicitor, my advice to couples going through this process is to seek legal advice, particularly if an agreement cannot be achieved, where an application is contemplated or before the court and the application is opposed.
At Wellers Law Group LLP, our experienced family law solicitors can advise you on your legal rights and options to enable you to make an informed decision and to help you achieve an outcome that works for you. If court proceedings are unavoidable, we can explain, assist and support you through those proceedings.
29 November 2017