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The Civil Partnership Act 2004, which came into force on December 5, 2005, has created a new legal status, available only to same-sex couples. The first registrations in Northern Ireland took place on December 19^th, in Scotland on December 20^th and in England and Wales on December 21^st. The Government expects between 11,000 and 22,000 people to be in a civil partnership by 2010. Similar legislation recognising life partnerships between same sex couples has also been introduced in various other countries, particularly but not exclusively in Europe.

Couples who sign a civil partnership registration document commit themselves to a range of rights and responsibilities, essentially the same as those associated with marriage. Civil partnership is not precisely the same as gay marriage, but the rules and legal principles concerning the creation and the dissolution of civil partnerships are based on, and for the most part the same as, those governing marriage.

Rights acquired by civil partners include:

employment and pension benefits
exemption from capital gains tax on the transfer of assets between partners
equitable treatment for the purpose of life assurance
protection from domestic violence
ability to change name using certificates of civil partnership
access to fatal accidents compensation
recognition for immigration and nationality purposes
the ability to gain parental responsibility for each other’s children
exemption from testifying against each other in court
inheritance tax exemptions
the right to provision from the estate of a deceased partner under the Inheritance (Provision for Family and Dependants) Act 1975
tenancy succession rights
rights on intestacy
the right to register a death as a ‘relative by civil partnership’

Responsibilities associated with civil partnership include:

a duty to provide reasonable financial support for one’s civil partner and any children of the family
liability to assessment for child support
property division on dissolution of the partnership
loss of some of the tax advantages enjoyed as separate individuals

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Eligibility

A couple wishing to form a civil partnership must be of the same sex, and both must be over 18 (or over 16 with the consent of parents or whoever has parental responsibility). Just as a person may not marry a second time without ending the previous marriage, so a person may not enter into a civil partnership if he or she is already in a civil partnership or married. The couple must not be closely related; the detailed provisions concerning the ‘prohibited degrees of relationship’ are based on those for marriage.

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Registering a partnership

An eligible couple must each give ‘notice’ of their intention to register a civil partnership to a registration authority (registry office). They can only do so if each of them has resided in England or Wales for at least 7 days immediately before giving the notice. The notice must include a solemn declaration in writing, confirming that the proposed civil partner knows of no legal impediment to the formation of the civil partnership, and that the residence requirement is satisfied. Under the normal procedure there is then a waiting period of 15 days, although that can be reduced on application in ‘exceptional circumstances’. During the waiting period relevant information is made public, including the names, but not the addresses, of the proposed civil partners, and objections may be received from third parties (who may be liable for costs and damages if the objection is considered frivolous). Provided that the registration authority is satisfied that there is no legal impediment to the couple forming a civil partnership, at the end of the waiting period the authority is under a duty to issue a civil partnership schedule at the request of either of the proposed civil partners. There is an appeal process if the registration authority refuses to issue the schedule. On issue of the schedule, the couple has up to 12 months (from the date on which the notice to register was first issued) in which to sign the document, and have the partnership formally registered. Under provisions similar to those for civil marriage, the civil partnership document is to be signed by the couple in the presence of: each other; a registrar; and two witnesses, each of whom also signs the document. Once this had been done, the partnership will be recorded in the register. There is a special procedure for speeding up a registration, by licence, designed for the situation in which one of the proposed civil partners is seriously ill and not expected to recover, but this can happen only on the authority of the Registrar General. Special provisions apply where one of the proposed partners is resident in Scotland or Northern Ireland, or is a member of the British armed forces. There are also special provisions for people who are housebound, or who are detained in a hospital or prison.

More elaborate registration ceremonies can be arranged to supplement the strict legal registration procedure. A wide range of registration venues are available, broadly the same as those available for civil marriage. As with civil marriage, it is not possible to hold a ceremony in religious premises, or to hold a religious service during the registration itself, although it is possible to have the partnership blessed before or after the registration, at a suitable venue.

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Dissolving a partnership

A civil partnership is a serious commitment, and like marriage can only be brought to an end by a court order or by the death of one of the partners.

The court may end a civil partnership on an application by one of the parties, in very much the same way as it may end a marriage. Depending on the circumstances, the court may make a dissolution order (essentially a divorce), declare the partnership to be a nullity, make a presumption of death order, or provide for the separation of the partners (this last order does not free the parties to form another civil partnership, or to marry). Any of these court orders is initially a conditional order, which may not be made final until the end of the prescribed period (currently 6 weeks) although the court may reduce the period in certain circumstances (for example a deathbed dissolution).

Neither partner can apply to dissolve the partnership until at least one year after the partnership was formed. The only possible ground for dissolution of the partnership is that the partnership has broken down irretrievably. In order to establish irretrievable breakdown, the civil partner applying for dissolution (the applicant) must satisfy the court of one or more of the following ‘facts’:

behaviour by the other civil partner (the respondent) which means that the applicant cannot reasonably be expected to live with the respondent;
separation for 2 years and the parties agree to dissolution of the partnership;
separation for 5 years;
desertion of the applicant by the respondent for a period of 2 years.

These provisions are modelled closely on the provisions for divorce, with one important difference: adultery by the respondent is not a specific ground, although sexual infidelity may be cited as an example of unreasonable behaviour.

The court may not hold that the civil partnership has broken down irretrievably unless it is satisfied that one of the four ‘facts’ set out above has been established. As with divorce, the court may refuse dissolution of the partnership in cases of 5 years of separation on the ground that the dissolution would cause the respondent grave financial or other hardship and that in all the circumstances it would be wrong to make the order. By analogy with divorce cases, a refusal based on hardship is likely to be extremely rare in practice, as the necessary degree of hardship is difficult to establish.

As with petitions for divorce, the legislation emphasises the importance of attempting reconciliation. The applicant’s solicitors are required to certify whether they have discussed reconciliation with their client, and whether they have given the applicant details of people qualified to help with reconciliation. If the court considers that there is a reasonable possibility of the couple achieving a reconciliation, it may adjourn the application.

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Nullity

In certain, unusual, circumstances a civil partnership, like a marriage, may prove to be void (invalid) or voidable (capable of being, but not definitely invalid). A civil partnership will be void if it emerges that one of the parties was not eligible, or, for example, if the partners knowingly failed to give the required notice. A civil partnership will be voidable if, for example, there was some mistake as to consent. A partnership which is void must be declared null unless it is validated by order of the Lord Chancellor, whereas there are a number of circumstances in which the court may refuse to make a nullity order in respect of a voidable partnership, for example if the nullity application is made over 3 years from the date on which the partnership was formed.

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Property and financial arrangements

Civil partners whose partnership is dissolved, annulled or who are judicially separated, can obtain from the court the same range of financial orders as those available to married couples who go through divorce, nullity or judicial separation. These include payment of lump sums, periodical payments, property adjustment, sale of property, and pension sharing. As with divorcing couples, civil partners can obtain interim maintenance while financial proceedings are pending.

In making such orders the court will apply principles similar to those applied to the making of orders on divorce. Just as with divorce, the court will take into account all the circumstances of the case, the first consideration being given to the welfare of any child under 18. The court’s checklist of relevant factors includes the income, earning capacity, property and other financial resources of each partner, including resources likely to be available in the foreseeable future and any reasonable expectation of increased earning capacity; the financial needs, obligations and responsibilities which each civil partner has or is likely to have in the foreseeable future; the standard of living enjoyed by the family before the breakdown of the civil partnership; the age of each civil partner and the duration of the civil partnership; any physical or mental disability of either of the civil partners; the contributions which each civil partner has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family; any conduct which it would be inequitable to disregard; and the value to each civil partner of any benefit which, because of the dissolution or annulment of the civil partnership, that civil partner will lose the chance of acquiring.

In relation to the length of the partnership, the court’s approach to pre-registration cohabitation may prove very important. The courts are likely to treat pre-registration cohabitation as effectively ‘extending’ the duration of the actual civil partnership; certainly pre-marital cohabitation is usually treated as extending the duration of a marriage. This could have a major impact upon the financial entitlement of the partner with less money. It may be that a long same-sex cohabiting relationship will be treated as equivalent to a long marriage, even though the civil partnership itself lasted only a short time, making an equal division of the assets the most likely outcome on dissolution of the partnership. [See Making of Financial Orders]

When considering financial arrangements on divorce the court must try, if it would be fair to do so, to achieve a ‘clean break’, and similarly, when considering financial arrangements when a civil partnership comes to an end, the court must give consideration to ending the mutual financial obligations of the civil partners as soon as is just and reasonable. If the court does make a periodical payments order, it must give particular consideration to limiting those payments to whatever term will be sufficient to permit the financially dependent partner to adjust without undue hardship

There are some specific provisions concerning property, including a provision that where a civil partner has made a substantial improvement in money or money’s worth to the improvement of a property in which either party has an interest, her or she is to be treated as having acquired an enlarged share in that property. The extent of the share will be determined by any agreement made between the parties, or, if there is no agreement, will be determined by what seems in all the circumstances just to the court. The contributing civil partner will not be treated as acquiring a share or an enlarged share where there is an express or implied agreement between the parties that they will not do so.

A civil partner may apply to the court in respect of any question relating to ownership or possession of property, and the court may then make such order with respect to the property as it thinks fit, including an order for the sale of the property. In certain circumstances such an application may be made even if neither of the civil partners still has the property. A former civil partner may also make such an application provided the application is made within three years of the date of dissolution or annulment of the civil partnership,

Civil partners are treated in the same way as married people in relation to wills, the administration of estates and family provision. Also, if a civil partner takes out a life insurance policy to provide for his or her partner, or their children, the money payable under the policy will not form part of the estate of the insured.

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Children

Under the Act civil partners have the same legal remedies available to them in relation to children as married couples, and the corresponding responsibilities. Whereas before the Act came into force a joint application for an adoption order could be made only by a married couple, civil partners may now adopt jointly. Civil partners have the right to apply for residence or contact orders in respect of a child of the family (they do not require leave to do so) and can apply for parental responsibility as step-parents may, but are also under a duty to make financial provision for children of the family. The court may order a civil partner to make a variety of different types of payments for the benefit of a child of the family, and civil partners are to be treated in the same way as married people for the purposes of the child support regime. When considering making a dissolution, nullity or separation order, the court must consider whether there are any children whose welfare the court should safeguard, and may postpone the making of the final order in order to protect and provide for such children; the court must consider any children of the family under 16 and may include older children if that seems appropriate.

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Housing

The Act makes a number of changes to existing legislation to ensure that civil partners have the same rights as married people in relation to housing and tenancies. Among the more important provisions are those allowing a civil partner to succeed to a tenancy on the same basis as a spouse, those allowing a civil partner to take advantage of the right to buy legislation as a member of the family, and those giving civil partners the same rights to occupy the civil partnership home as married people have to occupy the matrimonial home. Civil partners are also able to apply for non-molestation orders, and occupation orders to protect them from domestic violence. Occupation orders can be used to remove one of the parties from the home, and may be made even against the owner of the property.

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Overseas Relationships

Certain overseas relationships may be treated as civil partnerships, without any UK registration of the relationship. Foreign legal relationships which are very similar to civil partnership, such as civil union in Vermont, registered partnership in Denmark, and same-sex marriage in Belgium and the Netherlands, may be treated as civil partnerships in certain circumstances. To achieve recognition, the relevant law must: (i) create an exclusive relationship, so that a person may not enter into the relationship with more than one person; (ii) create a relationship of indeterminate length (rather than a fixed term); and (iii) have the effect that the parties are treated for legal purposes as a couple, or as though they were married. A relationship under a local scheme, for example within a particular city, which has no legal effect elsewhere in the country, would not qualify. The civil partnership will be treated as having been formed when the overseas relationship was registered in the relevant country, with the important proviso that no civil partnership can be deemed to have formed before December 5, 2005. In certain circumstances partners may apply to the English court for a declaration as to the validity of their overseas relationship.

The foreign dissolution or annulment of an overseas relationship may be recognised by the English courts as dissolution or annulment of a civil partnership. If there is jurisdiction, based on residence or some other ground, the English court may then go on to order financial relief under similar rules to those governing financial relief following overseas divorces, even if the dissolution or amendment took place before December 5, 2005. Foreign dissolution, annulment or separation can usually be recognised only if fully effective under the law of the country in which it was obtained, and granted by the foreign court when at least one of the civil partners was habitually resident or domiciled in that country, or was a national of that country. Similarly, the English court may dissolve or annul a recognised overseas relationship, provided the court has jurisdiction based on residence or some other ground. The treatment of all qualifying overseas relationships as though they were equivalent to civil partnerships may impose on some couples who have moved to the UK far heavier mutual responsibilities on the dissolution of their relationship than they originally accepted under the regime of their home country.

It will be possible to register civil partnerships abroad in the presence of an officer of the diplomatic service in certain circumstances, in much the same way that UK nationals wishing to marry under UK law at a diplomatic post overseas may do so. For registration to take place at least one of the prospective civil partners must be a UK national, both must be eligible to register in the relevant part of the UK, the relevant foreign authorities must have no objections and it must be impossible to enter into an overseas relationship under the relevant foreign law. Separate provision is made for registration by members of the armed forces.

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Immigration

There are restrictions on the registration of civil partnerships where either of the proposed civil partners is subject to UK immigration control; these are the same as those already in place for spouses. People subject to immigration control who wish to give notice of a civil partnership will need to do so at a Register Office designated for that purpose. When they give notice, they will be required to produce one of the following: entry clearance granted to form a civil partnership; a Home Office certificate of approval; indefinite leave to remain in the UK.

Couples who register a civil partnership will have similar immigration rights to married couples: the non-EEA civil partner of a British citizen or of a person settled in England and Wales is entitled to apply for two years’ leave to enter or remain in the UK. If the civil partnership is still in existence at the end of this period, the civil partner may then apply for indefinite leave to remain.

These immigration rights will apply whether the couple have become civil partners by registering in the UK or by forming one of the recognised overseas relationships.

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Legal advice and Civil Partnership

Civil partnership is very like marriage, and should be treated with the same degree of seriousness. As with marriage, it may be very helpful to obtain legal advice before entering into a civil partnership.

Although pre-marital agreements are not legally enforceable (see Pre-nuptial Agreements) in England and Wales, they are increasingly likely to be considered as a relevant factor on divorce. Pre-registration agreements are likely to be at least as significant a factor in the dissolution of civil partnerships. Because same-sex couples have only recently become able to enter into a legal relationship with one another, many prospective civil partners are likely to be well established financially, and it may be especially important that they obtain advice on and help with drawing up a legally significant pre-registration agreement.

The changes in legal status involved in both civil partnership and marriage will usually raise a whole range of other relevant issues, such as wills, insurance and pensions, and legal advice should again be sought to ensure that the couple’s new rights and responsibilities have been recognised in all legal contexts.

There are clear rules concerning English recognition of foreign marriages, and almost universal recognition of English marriages in foreign jurisdictions. Civil partnership, as a relatively new legal concept, raises more difficult legal issues [see overseas relationships above] and there is not even a Europe-wide scheme of mutual recognition of civil partnerships or of jurisdiction concerning their dissolution. It may therefore be helpful to obtain advice on whether an English civil partnership is likely to be recognised in a particular foreign country, and on English recognition of specific foreign same- sex legal partnerships.

For a brief summary of the Civil Partnership Act please click here.