Financial provision on dissolution

With case law still awaited, Conrad Adam considers the financial issues when dealing with the dissolution of a civil partnership and the relationship with matrimonial law

This article sets out to do three things. First, briefly to review where we are now in relation to civil partnership registrations in terms of the numbers, and other data available. Secondly, to remind practitioners of the powers of the court in relation to financial provision on dissolution, under the Civil Partnership Act 2004 (CPA), and finally to consider how the courts might apply those statutory powers, and to what extent in doing so they may apply principles of case law established on the basis of marriage breakdown.

But first let’s start with some recent words from the President of the Family Division, Mark Potter, speaking in Wilkinson v Kitzinger [2006]: ‘The intention of the government in introducing the legislation was not to create a “second class” institution, but a parallel and equalising institution.’ Assuming that when it comes to financial division at the dissolution of civil partnerships, the courts agree with these comments, then the following scenario should be possible.

Two men aged 41 and 36 register a civil partnership. They have dated for four years but not lived together before registration. After almost three years the civil partnership is dissolved. Mr A is wealthy – there is considerable debate as to how wealthy, but certainly well in excess of £18m. Mr B is not wealthy and gave up a job paying £85,000 pa when the civil partnership was formed. Children are not an issue. The civil partnership is brought to an end when Mr A forms a new relationship. Mr B claims that when forming his civil partnership with Mr A he had a legitimate expectation of an affluent lifestyle thereafter. On dissolution of the civil partnership the court awards Mr B £5m capital including provision for income. These of course replicate in brief the facts of Miller v Miller [2006].

Is that outcome under the CPA possible or likely? If not, why not? It has been suggested by a number of commentators that on the breakdown and dissolution of civil partnerships the court will be likely to apply principles established in case law relating to the breakdown of marriages. If civil partnerships are, in the words of Mark Potter, to be considered as ‘parallel’ to marriages, then this scenario must be possible. Would that outcome be fair? Or, perhaps any less fair than some might say of Miller? If it was considered to be inappropriate by the court, then fundamental questions need to be asked as to why.

Current legislation does not allow same-sex partners to marry in England and therefore the most they can do is register civil partnerships. If on the dissolution of those civil partnerships they are treated differently to married couples, where similar facts exist, then that would clearly be discrimination. Any differences cannot be justified merely on the grounds of gender or sexual orientation.