Civil Partnership Act 2004 (“The Act”)

On 5 December 2005 the Civil Partnership Act 2004 (“The Act”) came into force allowing partners of the same sex to register their relationships.

This heralds an enormous change for people in same sex relationships. Before that date, in the United Kingdom, they were unable to have their relationship formally recognized.

Below we give an overview of the consequences for same sex couples.

Same sex partners who choose to register their relationship will have similar rights and responsibilities to those of married couples. Same sex partners who decide not to register their relationship are still affected by the Act: they will be on the same footing as heterosexual couples who live together without marrying. This could impact on a party’s entitlement to benefits (e.g. if one of the couple is a high earner and the other is claiming state benefits).

WHO CAN ENTER INTO A CIVIL PARTNERSHIP Two people of the same sex

• Who are neither married or a party to another civil partnership
• Or closely related to each other as set out in the Act

They must be over 16 and if they are under 18 they consent from their parents or guardians is needed.

HOW DO YOU REGISTER A CIVIL PARTNERSHIP

• 15 days’ notice must be given, usually to the local registrar.

In contrast to a marriage ceremony:
• There are no vows. The legally effective part of the process is purely written with both parties signing an agreement called a “civil partnership document”
• The ceremony cannot be held in religious premises; no religious service can be used. Ceremonies will, therefore take place in Register Offices or other civil venues licensed for the purpose. There is nothing in the Act to prevent the couple having a separate religious ceremony at another time.

HOW IS A CIVIL PARTNERSHIP BROUGHT TO AN END

• Death
• Dissolution
• Annulment

Dissolution is very similar to divorce.

The only ground for dissolution is irretrievable breakdown of the relationship (as for divorce). To establish irretrievable breakdown of the relationship the Applicant must establish one of four facts
• That the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent
• The applicant and respondent have lived apart for a continuous period of two years and the respondent consents to a dissolution order
• The applicant and respondent have lived apart for a continuous period of at least 5 years
• That the respondent has deserted the applicant for a continuous period of at least two years

As for divorce, the decree of dissolution will be in a two step process: the first a conditional order and the final order (bringing the civil partnership to an end) six weeks later. In some circumstances financial matters will need to be dealt with before the final order.

FINANCIAL

A. What parties should consider before registering a Civil Partnership

Many people registering civil partnerships may have already been living together for many years. They may already own joint assets, or share a bank account.

When dealing with financial matters on the breakdown of a partnership the law will take into account very much the same factors as it takes into account when dealing with the divorce of a married couple.

In divorce proceedings prenuptial agreements are being given more and more weight by the court subject to certain factors being present when they are signed.

Parties should therefore seek legal advice as to whether a pre partnership agreement is advisable. Commonly these agreements would be used where the financial contributions by the parties are unequal or where this partnership is the second for one of the parties who have family responsibilities from a previous relationship.

The court has the same jurisdiction for same sex partners as it has for married couples and can make the following orders:
• Periodical payments (maintenance)
• Sale/transfer of property
• Payment of a lump sum
• Pension sharing orders

The court can also make financial orders in favour of a child of the family

When a judge is considering whether to make a financial order:
• First consideration must be given to the welfare of a child of the family (i.e. a child of one of the parties treated by both of them as part of the family) who has not attained the age of eighteen.
• The court must also consider the same range of factors that are considered on the break up of a marriage and these are listed

A judge must also consider whether it is possible to bring to an end the financial responsibilities of the parties to each other, i.e. a “clean break”.

CHILDREN

Same sex couples are already able to adopt

A civil partner can obtain parental responsibility for a child in the same way as a heterosexual person who marries the parent of a child.

A civil partner may apply for residence and contact orders in the same way as a partner in a heterosexual relationship.

Civil partners can apply or be liable to pay maintenance or make a lump sum payment for children of the family including those over 18 if disabled.

DOMESTIC VIOLENCE

Over the years the rights of same sex couples have gradually come into line with those of heterosexual couples.

The Act now provides that in situations where there is domestic violence civil partners are on the same footing as married couples and same sex partners in a non registered relationship are on the same footing as unmarried heterosexual cohabitants.