Marriage for same sex couples
The Marriage (Same Sex Couples) Act of 2013 effectively puts same sex marriages on the same legal footing as those of heterosexual couples. The rights and obligations of a married same sex couple are exactly the same as those of a married opposite sex couple.
There are a number of benefits to a
same sex marriage over a civil partnership, including:
- Pensions – when a same sex spouse dies, their partner is now entitled to a share of their pension that reflects the full number of years that the deceased paid into it. With a civil partnership the surviving spouse would only be entitled to a share of the pension based on contributions made since 2004 (for a private sector pension) or 1988 (for a public sector pension).
- Recognition of their marital status in some foreign countries – more and more countries are now accepting same sex marriages. Fewer countries recognise the legal status of a civil partnership.
- Transgender issues – prior to the Same Sex Marriage Act of 2013, if a married heterosexual person underwent a sex change, their marriage would no longer be recognised after receiving their Gender Recognition Certificate. Therefore people were sometimes being made to divorce and then enter into a civil partnership with their ex-spouse. The new law enables people in this situation to remain married and continue to have their marriage recognised.
The Married (Same Sex Couples) Act 2013 also enables civil partners to convert their partnership into a marriage if they wish.
Divorce for same sex spouses
Same sex spouses whose relationship has irretrievably broken down can seek a divorce through the court using the same process and under the same legislation as married couples of the opposite sex. The only difference being that instead of Five Facts to prove the irretrievable breakdown, there are only four. Adultery cannot be used for a same sex couple as, in law, adultery specifically relates to sex between a man and a woman.
If infidelity is the cause of your relationship breakdown you may be able to cite this as ‘unreasonable behaviour’. Wellers divorce solicitors can advise you fully on the divorce process for same sex couples and on all the steps you will need to take.
In 2005 civil partnerships were introduced in the UK. Whilst sometimes referred to as ‘gay marriage’, this is not strictly accurate as there are legal differences between a civil partnership and a marriage.
The law describes a civil partnership as a legally registered relationship which offers same sex couples rights similar to those of married couples of the opposite sex. The legal rights relate to areas such as pensions, tax and the right to apply for parental responsibility for a partner’s child.
When it comes to advising clients on civil partnerships there are a variety of legal services available, both before entering into a partnership and if a breakdown of the relationship occurs.
Protecting your assets
When a couple enters into a civil partnership, they are forming a legally binding union and this creates certain responsibilities. Civil partners therefore need to protect their property and assets in much the same way that partners who are planning to marry may do when drafting a pre-nuptial agreement. A pre-civil partnership agreement can help protect family heirlooms, major assets and business interests, and while not currently legally binding, a well drafted agreement may help a court to understand the pre-civil partnership intentions for certain wealth.
Breakdown of a civil partnership
When a civil partnership breaks down irretrievably, you must get permission from the court to legally dissolve the partnership. The court can grant you either a separation order or a dissolution order.
If a partnership has lasted 12 months or less, a separation order is used. A dissolution order is only available after the first 12 months of the civil partnership. Once you have been granted a separation order it means that you cannot legally enter into another civil partnership until you get a dissolution order.
Dissolution of a civil partnership is similar to the divorce of a married couple. A dissolution order cannot be made within the first 12 months of the civil partnership, in the same way that a couple of opposite sex who want to be divorced cannot do so until they have been married for 12 months.
In order to apply for a dissolution order you have to prove that the relationship has broken down irretrievably. You must use one of the following grounds to do this:
- One partner has deserted the other for at least two years
- You have been separated for two years and both agree to the dissolution
- Your partner has behaved unreasonably
- You have been separated for at least five years (consent is not required)
These grounds are the same as the grounds for a divorce apart from one key element – adultery cannot be used as a ground for dissolution because the term ‘adultery’ has a specific legal definition relating to heterosexual sex. If infidelity is the reason for the irretrievable breakdown you can state this as a reason for dissolution of a civil partnership under the element of ‘unreasonable behaviour’.
When ending a civil partnership, arrangements regarding finances and children may have to be made. It is possible to negotiate financial and property settlements in much the same ways as with a divorce financial settlement and these may involve property transfers, lump sum payments or ongoing maintenance. One of our specialist family solicitors can help you with these issues.
Similarly, arrangements for where the children shall live, and for contact with the non-resident partner, can be dealt with at this time.
Expert legal advice for same sex couples
We have a number of excellent free guides available to download, offering clear, concise information for couples with family issues.
Please call our Family Law solicitors for help or advice on 020 8464 4242 for our Bromley team, 01732 457575 for Sevenoaks 020 7481 6393 for central London or 01372 750100 for our Surrey team. Alternatively email your enquiry to firstname.lastname@example.org. We offer a fixed fee, no obligation one hour interview so that we may provide you with initial advice and suggest the options for your next course of action.