Civil partnerships – update April 2008

Background

The Civil Partnership Act 2004 ('the CPA') is a major change in the law governing same-sex couples.

Prior to this legislation gay couples had been denied official recognition of their relationships and the legal protection that flows from this, including rights to financial provision on 'dissolution' (akin to divorce) and with regard to the rights of children in such relationships.

The Bill leading to the CPA passed through Parliament during 2004 and received Royal Assent on 18 November 2004.

It came into force on 5 December 2005.

The legislation onlyapplies to same-sex couples (and cannot therefore be used by heterosexual couples as an alternative to marriage) and is designed to apply to couples living in a relationship effectively akin to marriage – earlier suggestions that the legislation could have a wider focus to include those living together in the same household but not in a 'couple' relationship (e.g. elderly relatives) were not followed through.

Therefore, to be eligible to register as civil partners two people must be:

• Of the same sex
• Not already married or civilly partnered
• 16 or over
• Not within the 'prohibited degrees of relationship' e.g. siblings, parent/child etc
  

Procedure

To be civilly partnered the civil partners (to be) must have lived in England and Wales for at least 7 days at which time they can then give notice of the intended partnership to a 'registration authority' (one of the local designated offices of local councils).

From the time of giving notice there is a waiting period of 15 days during which time the details of the registration given in the notice are publicised in the registration authority's area.

Once the waiting period is over a civil partnership schedule is issued and the civil partners have 12 months from the date of the notice to sign that schedule in the presence of a registrar, each other and two witnesses.

A civil partnership is formed once this civil partnership document is signed.

In the same way as civil marriage a civil partnership can be registered at Approved Premises (which might include, hotels, stately homes etc) as well as register offices.

The legislation specifically prohibits any religious service whilst the civil partnership document is being signed.

Dissolution

Civil partnerships endure until death, dissolution or annulment.

Annulment is on specific and limited grounds which make the civil partnership void or voidable.

It is likely that most civil partnerships, if they do not last until the death of one of the parties, will be ended by dissolution rather than annulment.

Dissolution is a very similar procedure to divorce – it leads to a dissolution order (rather than a Decree Absolute) which ends the civil partnership.

It is not possible to apply for a dissolution order until 1 year has elapsed from the date of the partnership.

Like divorce the only ground for a dissolution is that the partnership has broken down irretrievably – this is evidenced by one of the following facts (again like divorce):

·         'Unreasonable behaviour'

·         2 years' separation with consent

·         5 years' separation

·         Desertion

·         NB -  Adultery is not a relevant fact for dissolution (unlike divorce) 

Financial Provision on Dissolution

The CPA makes provision for civil partners to make financial claims against each other at the time of dissolution in Schedule 5. The provisions are essentially the same as those available on divorce and this is explicitly acknowledged in the CPA.

The available orders are, essentially:

·         periodical (or maintenance) payments to the civil partner (or for the benefit of children), which can be on a secured or unsecured basis

·         order to pay a lump sum to the civil partner (or for the benefit of children)

·         orders adjusting the ownership of property (by way of transfer, settlement or variation of settlement)

·         orders for the sale of property

·         orders for the sharing of pension(s)

When deciding which financial orders to make the court is directed to have regard to specific criteria, which mirror the criteria listed in the divorce statute. These criteria essentially cover all the circumstances of the civil partners and include, most crucially, their income, assets, financial needs, ages and standard of living.

There is very little case-law applying the civil partnership legislation as it appears that most financial disputes on dissolution have either been settled by agreement or not been of such wide public interest as to appear in the law reports (and, of course, civil partners have only been to dissolve their partnership from December 2006). However, it is anticipated that current case-law dealing with financial disputes on divorce will be applied, in which case we will be well placed to advise.

One issue of interest will be how the courts will treat the issue of very long periods of cohabitation preceding the civil partnership given that the partners would have been unable to enter into a civil partnership. In the context of marriage a period of cohabitation seamlessly preceding marriage would effectively be added to the period of marriage in order to extend the effective length of the marriage.

Despite the fact that the ratio of cohabitation to legal union might be much greater in civil partnership cases, given that the status is a new one and gay couples were formerly unable to enter into a legally recognised relationship, we would anticipate that the approach should be the same, at the very least to avoid challenges from a human rights legal perspective.

International Considerations

The CPA makes provision for the registration of civil partnerships overseas, in defined countries or territories and in certain circumstances where one of the proposed partners is a UK national, and also makes provision for the registration of civil partnerships between armed forces personnel serving outside the UK.

Under the CPA it is also possible for overseas relationships akin to civil partnerships to be treated as civil partnerships in the UK. The Act provides a list of the relationships that will be eligible for such recognition (which can be updated and varied) but it is also possible for relationships to qualify if they meet certain defined criteria. Specific relationships treated as a civil partnership include the French pacte civile de solidarité and the German Lebenspartnerschaft.

Such international dimensions raise complicated and interesting issues as it may well be necessary for questions of foreign property, tax and relevant law to be addressed on the formation or termination of civil partnerships. We have expertise in these areas as we routinely deal with sophisticated, international families and couples with assets in different jurisdictions. One particular area of interest will be the way in which a civil partner, who has become treated as such because he or she has entered into an overseas relationship recognised by the CPA, may gain far greater rights to financial provision on dissolution than they would have had under their original status.

Gay couples coming to settle, or live for a period, in the UK who have entered into relationships in their home countries that would be recognised as civil partnerships in the UK may well wish to seek advice on the potential financial relief granted to or by their partner if dissolution of the ‘deemed’ civil partnership occurred in the UK.