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.
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. There were 994 same-sex civil partnerships formed in England and Wales in 2019.
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 a Decree Absolute. Civil Partnerships end with a Disillusion Order. Both require confirmation that the relationship has irretrievably broken down, i.e. there is no way for you and your partner to resolve your differences.
You must demonstrate this by proving one of five facts:
- Unreasonable behaviour
- One party leaves the relationship and you’ve lived apart for at least 2 years in total – this is known as ‘desertion’
- you’ve lived apart for at least 2 years and you both agree to the divorce
- you’ve lived apart for at least 5 years, consent is not required.
The most common fact relied upon is unreasonable behaviour. This is also known as the ‘quickie’ divorce, because you don’t have to wait a period of time to enable you to divorce.
Civil partnerships end with dissolution, specifically upon receipt of a Dissolution Order. Civil Partners must show that a marriage has irretrievably broken down by proving one of the following four facts:
- Unreasonable behaviour
- your partner deserted you at least two years before.
- you and your partner have lived apart for two years, and that you both agreed to the dissolution
- you and your partner have lived apart for at least five years, consent is not required.
Those ending a same sex marriage, heterosexual or same sex civil partnership, you can still utilise adultery as the reason for your relationship breakdown, but it can only be used as an example of unreasonable behaviour factor. This is due to the legal definition of adultery.
Both married couples and civil partners can apply to the court for financial orders as a result of the breakdown of their relationship.
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.
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 [email protected].