In recent decades, the creation of civil partnerships and the expansion of marriage to apply to same sex relationships has given the LGBT+ community access to the same rights and privileges heterosexual couples have long enjoyed. Marriage and civil partnerships do not solve all of the inequalities that LGBT+ community unfairly experience, but the right to formalise relationships is progress albeit long overdue. The number of same sex couples who are living together in the UK is increasing – it rose by more than 50% in the three years leading up to 2019, according to the Office of National Statistics. Same-sex cohabiting couple families accounted for 0.7% of families (137,000 families) in 2023. This was an increase from 0.5% (89,000) in 2013. In 2021 Census data, 476,000 people were living in a same-sex couple which marks a 1.3% increase since 2011.
Heterosexual marriage, same sex marriage and civil partnerships
Formalising a serious relationship is an important milestone in many people’s lives. Same sex and heterosexual couples can formalise these relationships by marrying or forming a civil partnership.
A marriage ceremony can take place in a religious or civil setting and involves signing the marriage register and repeating vows. Unfortunately, not all religious organisations carry out same sex weddings and there is no legal obligation for them to do so.
Civil Partnerships are created by a couple signing a civil partnership document. They are not religious. There is no requirement to exchange vows, but couples can if they wish. The number of same sex civil partnerships in the UK is rising by about 4% annually. Of the civil partnerships formed in 2022, 16.3% (1,119) were between same-sex couples.
Parties under both models have the right to make financial relief applications upon separation, rights to each other’s estates on death and many tax entitlements. For example, married or civil partnered couples have the ability to transfer assets to each other without Capital Gains or Inheritance Tax arising.
Marriages end by divorce, specifically upon receipt of the Final Order, (previously known as a Decree Absolute). Since the introduction of the Divorce, Dissolution and Separation Act 2020, the requirement for fault or blame in the divorce process has been removed and divorce has essentially become a no-fault process. The only requirement for divorce is to state that there has been an irretrievable breakdown in the marriage and that you have been married for over a year.
The divorce process begins by an application being made online on the GOV.UK website. Couples can apply individually or jointly and can apply either themselves or via a solicitor.
After the application is made there is then a mandatory 20-week reflection period, after which the Applicant can apply for a Conditional Order (previously called Decree Nisi). The Court will then need to approve the Conditional Order, which can take 8-9 weeks owing to current Court backlogs. After this a further mandatory timeline applies of 6 weeks and 1 day before a Final Order can be applied for.
Before applying for a Final Order both parties should consider taking legal advice on sorting out finances on divorce. If the couple wants a financial settlement to be binding, a Financial Consent Order must be drafted and approved by the Court. Both married couples and civil partners can apply to the court for financial orders.
The position of cohabitees at the end of a relationship
Unmarried couples separate informally without the need for a court to recognise their separation. There are some occasions where a party can make a claim in relation to property and/or financial claims in relation to children, but these are very narrow in comparison to those who were married or in a civil partnership.
In cohabitant relationships it is very important to formalise any agreements you have about what will happen if you separate. If you and your partner plan to live together, a Cohabitation Agreement may be right for you. This document allows you to formalise the rights and obligations that you have agreed between yourselves. It can cover things like how household costs and rent are paid during your relationship. It can record things like how you will divide any assets, like joint bank accounts or the family home if you separate in the future. Cohabitation agreements provide clarity and work to ensure that fair arrangements are in place if couples do separate. They can help avoid unnecessary stress and costly disputes in the future. There is no difference in approach whether the couple are same sex or heterosexual.
Children
There is no pre-requisite that you need to be married or in a civil partnership in order to make applications in respect of children. Families can be very complicated in terms of step-families, non-biological parents, half-siblings, etc. Many families are able to agree arrangements between them without the formality of a court order. Others need some assistance through mediation or solicitors to agree arrangements that enable the children to spend time with both or all parents. Court applications are a last resort but are sometimes necessary.
There is no pre-requisite that you need to be married or in a civil partnership in order to make applications in respect of children. Families can be very complicated in terms of step-families, non-biological parents, half-siblings, etc. Many families are able to agree arrangements between them without the formality of a court order. Others need some assistance through mediation or solicitors to agree arrangements that enable the children to spend time with both or all parents. Court applications are a last resort but are sometimes necessary.
At Ellisons our experienced Family Law Solicitors can advise you at any stage in your relationship. Contact Ellisons’ specialist Family Law Solicitors today on 01206 764477 or email us at enquiries@ellisonssolicitors.com for a free exploratory call. We are also pleased to support Blue Light members and offer a discount on our initial fixed fee meeting.
