Gay marriage

Civil partnership and same sex relationships

A briefing note by the family law team at Hodge Jones & Allen.

November 2009

Civil Partnerships

The Civil Partnership Act 2004 came into force on 5^th December 2005 making it possible for people of the same sex to form a registered partnership. In effect a civil partnership is the same as a civil marriage between opposite sex couples. It carries with it the same legal formalities and consequences particularly upon dissolution.

A petition to dissolve a civil partnership is called a ‘dissolution’ rather than a divorce. The only other difference between dissolution and a divorce is that you cannot dissolve a civil partnership on the basis of adultery. This is largely due to the fact that at the time politicians were wary of debating or defining the precise nature of sex between same sex couples. Adultery for the purposes of heterosexual divorce law is far easier to define. Also, it is not necessary to consummate a civil partnership as with marriage. This means that a civil partnership cannot be dissolved for non consummation.

This does not mean that a civil partnership cannot be dissolved if one party is unfaithful though. In those circumstances the other relationship would be termed as an ‘inappropriate’ relationship with another person and form part of a petition based on unreasonable behaviour, together with a number of other incidents of unreasonable behaviour. In all other aspects the law relating to dissolution and divorce is identical so please refer to our Briefing Note on Getting a Divorce for further information on this process.

Financial issues upon dissolution

Although there are very few reported cases since the coming into force of the Civil Partnership Act, the Matrimonial Causes Act 1973 will apply to all financial claims between same sex couples in the same way that it does to opposite sex couples. This means that the court has the power to order that property, capital or maintenance be paid to or from one party to the civil partnership to the other. The court can also make a pension sharing order upon dissolution if appropriate. In practice, unless there are children, or one party is a particularly high earner following a long relationship, it is likely that most cases will not involve the payment of long term maintenance. Please refer to our Briefing Note on Splitting up of Assets for further information on this topic.

At Hodge Jones and Allen LLP we can act for you and advise you on your civil partnership, or upon it’s dissolution and deal with all financial matters that arise thereon. It is also possible to enter into a pre civil partnership agreement (similar to a pre-nuptial agreement) to regulate what should happen so far as financial matters are concerned in the event of a dissolution.

Co-habitation

Many same sex couples buy property together, either in joint names or in the name of one party to the relationship. Often a dispute can arise upon relationship breakdown as to how the equity in the home should be divided. The law relating to same sex couples and indeed family members who buy a house together applies equally to same sex couples and opposite sex couples. We can advise you on all issues relating to co-habitation and we can even draft a co-habitation agreement for you to regulate what should happen to any jointly owned property in the event of a breakdown in your relationship.

Children

Increasingly lesbians and gay men are having children either through clinics or through informal arrangements. Many chose to adopt children. Particular legal issues arise where a known donor is used to facilitate pregnancy particularly around maintenance payments and parental responsibility. Two women who have children together and whom are not in a civil partnership may also wish to consider ways to give the non birth mother some form of legal status in the child’s life.

Contact our leading London civil partnership solicitors at Hodge Jones & Allen in London NW1 on 0800 437 0080 today.

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