Up until 5 December 2005 it was not possible for same sex couples to enter into a formal relationship together. However from that date the Civil Partnership Act 2004 came into operation in England and Wales. From then on it has been possible for same sex couples to register as civil partners which brings with it the same rights and responsibilities as being married.
The concept of a civil partnership for same sex couples was a major development in the legal area of same sex relationships. However it did receive criticism as being a watered down version of marriage or "semi-skimmed" marriage as it was referred to by some.
From 13 March 2014 it has been possible in England and Wales for same sex couples to marry. One difference between this and opposite sex marriage is that the procedure for a same sex marriage is civil and not religious. The Church of England was specifically given exemption from having to perform same sex marriages.
From 10 December 2014 it has also been possible for couples in registered Civil Partnerships to convert to marriage. For many people that was important so that they could truly feel that they were a married couple. The rights and responsibilities for those in a same sex relationship who are married are identical to those that previously only applied to married opposite sex couples.
It is possible for a Civil Partnership to be dissolved if one or both of the Civil Partners wish this. Technically it is not a "divorce" as such as the Civil Partnership Act made provision only for dissolution. The basis for a dissolution is the same as for an opposite sex (or now same sex) marriage with there being only one ground and that is if one of the parties believes there has been an irretrievable breakdown. This has to be shown in one of four ways:
a) Unreasonable behaviour
b) Desertion for two years
c) Separation for two years where they both consent at the end of the two years
d) Separation for five years whether or not they both consent
One difference with opposite sex marriages is that adultery is not a ground for dissolution of a Civil Partnership (or a same sex marriage divorce).
On the dissolution of a Civil Partnership the same financial rights and responsibilities apply as is the case with an opposite sex or same sex marriage that ends in a divorce. This includes the responsibility of both parties to maintain the other and provision for the sharing of capital taking into account the respective needs of the parties.
As with opposite sex couples many same sex couples live together without being married or entering into a Civil Partnership. It also means that they will not have any enforceable rights and responsibilities to one another during or at the end of their relationship.
The lack of rights for cohabitees (unmarried couples) is a major problem. It is very often thought that after a period of time rights are acquired but that is not the case. The introduction of Civil Partnerships, and then same sex marriage, has given the opportunity for rights to be acquired but those not entering into a more formal relationship could find themselves in unexpected and difficult circumstances. Assumptions may have been made about what would happen on the death of one of the couple or the relationship breaking down but those assumptions can be very wrong.
It is especially important when property is bought by a couple in their joint names, or one contributes towards the property that is in the other's sole name, that this is properly acknowledged and confirmed on a commercial basis. A Declaration of Trust may be necessary and Cohabitation Agreements are often entered into providing for how property and financial arrangements should be dealt with on the relationship coming to an end. It is very important that both of the couple make Wills and as part of that take into account that on death there are no automatic rights in the absence of a marriage or Civil Partnership.
To avoid unexpected and unplanned repercussions on death or the relationship ending it is important that a couple fully consider what they would want to happen financially should one of them die or the relationship come to an end. If they do not do that in advance when the eventuality arises it is likely to be too late to put in place the steps that they might otherwise have wanted. At the beginning of a relationship it can be very difficult to have to consider the repercussions of that relationship coming to an end because both of the couple would not expect it to!
When a Civil Partnership or same sex marriage comes to an end Court Proceedings could be necessary in the same way that they are used when a divorce takes place in an opposite sex marriage. Making a formal Court Application with a Judge having to make a decision that is not agreed is the last resort. It is far better for any disputes to be settled by agreement with collaborative law and mediation being constructive alternatives to an adversarial Court Application.
Collaborative law is a system whereby constructive meetings take place between the couple and their collaborative lawyers. The meetings try to agree a creative and positive outcome that benefits all of the family and minimising the conflict that might otherwise result. For this to be possible fully trained Resolution collaborative lawyers have to be used.
Mediation is an alternative where an independent mediator would meet the couple and try to help them reach an agreement. The mediator would not have the power to advise or make decisions but would try to facilitate an agreement being reached in an amicable manner.
The final alternative to Court Proceedings is a combination of the above or more formal negotiations between Solicitors. If agreement cannot be reached a decision would have to be made and that could either be by a Judge at a Court Hearing or by an arbitrator if the couple agreed to use arbitration as a more flexible way to have an outcome determined in the absence of an agreement.
To find out more or discuss your individual requirements in further detail, our dedicated Family Law solicitors will be delighted to help. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham, Brooke and Sheringham offices.