Civil Partnership v Marriage

May 2016

Since the introduction of the Civil Partnership Act 2004 (CPA 2004), it has been possible for two people of the same sex to enter a civil partnership as of 5 December 2005.  The processes for forming a civil partnership are contained in Sections 1 – 36, and “dissolving” a civil partnership contained in Sections 37 – 64.

Since the introduction of the Marriage (Same Sex Couples) Act 2013 (M (SC) A 2013), it has been possible for same sex couples to marry or convert their civil partnership into a marriage as of 13 March 2014.

In order for anyone to be validly married and/or enter a civil partnership, the individuals concerned must ensure the validity of their union.  The rules governing capacity are found in the Matrimonial Causes Act 1973 (MCA 1973) as amended or the Civil Partnership Act 2004.  These provisions in summary allow persons who are not closely related, who are not already married and who are aged over 18 (or over 16 with parental consent), to marry if they both wish. The requirement that the couple must be of the opposite sex to one another was removed by the Marriage (Same Sex Couples) Act 2013.

Even when the individuals entering into the civil partnership and/or marriage have capacity, the validity of the union can be questioned if the formalities have not been complied with.  Those formalities are contained in the Marriage Act 1949 concerning the location of the marriage/civil partnership.  There are also requirements as to the content of the ceremony, and these can be found in the Marriage Ceremony (Prescribed Words) Act 1996.

The form of rules concerning civil partnerships can be found in the Civil Partnership Act 2004, Sections 2 – 36.

It is possible, due to a change in the law in 2014, for same sex couples who are, or were, in a civil partnership to enter into a marriage.  Once the conversion takes place from a civil partnership into a marriage, the couples have their marriage certificates backdated so that their marriage will be deemed to have legally started from the date of their original civil partnership.

There are subtle differences regarding the formation of a marriage and/or civil partnership as follows:

  •  Marriages are solemnised by saying a prescribed form of words (the Marriage Ceremony (Prescribed Words) Act 1996). However, civil partnerships are registered by signing the civil partnership document and there is no requirement for any spoken words.
  •  Marriages can be conducted through either a civil ceremony or a religious ceremony if the religious organisation has agreed to solemnise the marriage of same sex couples.  However, the formation of a civil partnership is an entirely civil event.  There is no bar on civil partners having any kind of religious ceremony, but it is not a requirement.

Dissolution/Divorce

Legally, you need to be married for a year before you can file for divorce.  However, if a couple entered into a civil partnership in 2005 and converted it into a marriage, the marriage certificate is backdated to the date of their civil partnership for the purposes of the one year bar on divorce.

There are a number of subtle differences between a divorce following marriage and the dissolution of a civil partnership. A marriage is ended by divorce and obtaining a Decree Absolute.  A civil partnership is ended by obtaining a Dissolution Order.

Both marriage and civil partnerships are ended or dissolved on the grounds that the marriage and/or partnership has broken down irretrievably.  However, one or more of the following facts must be shown to demonstrate that irretrievable breakdown has taken place:-

  • In the case of marriage, adultery combined with the fact that the Petitioner finds it intolerable to live with the Respondent.  The definition of adultery is sexual intercourse with someone of the opposite sex outside of marriage.  This is not a fact which can be relied upon for the ending of a civil partnership.
  • Unreasonable behaviour is a fact of divorce for both marriage and civil partnership. Obviously, sexual relations with someone outside of the civil partnership could be cited as unreasonable behaviour.
  • Both marriage and civil partnership can be terminated on the basis of desertion for a continuous period of at least two years immediately preceding the presentation of the Petition.
  • Both marriage and civil partnership can be ended or dissolved on the basis of two years separation with both parties’ consent.
  • Both marriage and civil partnership can be terminated on the basis of separation for five years regardless of consent.

Financial Matters

In respect of marriage, the court has broad powers to order financial provision which are underpinned by statute, primarily the Matrimonial Causes Act 1973 (MCA 1973).  Much of the procedure in respect of any financial proceedings is outlined in the Family Procedure Rules 2010 Part 9.

In respect of civil partnerships, the legal framework is set out in the Civil Partnership Act 2004, which allowed same sex couples to gain the rights and responsibilities of marriage, including the same sort of access to financial remedies on the dissolution of their partnership as married couples have upon divorce.  In summary, the provisions of the Civil Partnership Act 2004 are virtually identical to those for marriage, and the same Family Procedure Rules apply.  Therefore, the fact that a claim for financial provision arises from the dissolution of a civil partnership rather than a marriage is of little significance.  As mentioned previously, since March 2014, same sex couples have been able to marry or convert their civil partnership into a marriage and the principles contained under the Matrimonial Causes Act therefore applied directly to same sex couples who are married.

There is one important distinction in respect of survivor benefits under an occupational pension scheme.  Where an occupational pension scheme provides survivor benefits, schemes are permitted to only take into account the rights accrued from the date the Civil Partnership Act came into force, namely, 5 December 2005.

Children

The law relating to children is mainly found in the Children Act 1989. However, there are a considerable number of statutory instruments which provide further law and guidance in relation to children and applications relating to children.  For the purposes of this article, comment will be restricted to those aspects specifically relating to the difference for same sex couples whether in marriage or civil partnership.

The Children Act 1989 (as amended) allows for an application to be made to the Court for a Child Arrangements Order.  This is the most commonly applied for Order relating to children.  A Child Arrangements Order is an Order that regulates arrangements relating to the following:

  • With whom the children are to live, spend time or otherwise have contact;
  • Where the children are to live, spend time or otherwise have contact with any person.

Any civil partner in a civil partnership in relation to whom the child is a child of the family can make an application for a Child Arrangements Order.

Any party to a marriage where the child is a “child of the family” of that marriage can make an application to the Court for such an Order.  A “child of the family” includes both the natural children of the parties to the marriage and step-children treated as a child of the family but excludes foster children.

Any person with whom the child has been living for a period of at least three years prior to the date of the application can also make application to the Court for such an Order. Further, any person or persons who have the consent of the person in whose favour a Child Arrangements Order has been made can also make an application. Those persons within the categories mentioned above can make an application to the court as of right; anyone else requires the permission of the Court.  There are certain conditions applicable to those who need the permission of the Court to apply for a Child Arrangements Order and this will be the subject of a separate blog at another time.

Surrogacy

This is a particularly important area for same sex couples.  The most important issue to remember in this respect in relation to UK law is that the surrogate has the legal right to keep the child, even if it is not genetically related to her.  Surrogacy arrangements are not legally enforceable, even if a contract has been signed and the expenses of the surrogate have been paid.  The surrogate will be the legal mother of the child unless parenthood is transferred through a Parental Order or adoption after birth.  In the UK, the woman who gives birth is always treated as the mother.

Adoption

Under the Adoption and Children Act 2002, which came into force in 2005, gay and lesbian single persons as well as same sex couples have the right to adopt a child in the UK.  The Act also rejects previous requirements of marriage before adoption.

In order to be eligible to adopt a child in the UK, you must be:

  • At least 21 years of age.
  • Resident of the UK.
  • Not have any convictions for particular offences.

In short, if you meet the requirements above regardless of your sexual orientation and relationship status, you can apply to adopt.  However, the same requirements for all prospective adopters apply in that you must be confirmed as suitable to adopt by an Adoption Agency and be able to meet a matched child’s needs.  Several other requirements will be considered including age, health, financial situation, religion, ethnic background etc.

Paul Summerbell
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.