Tuesday, 12 March 2013

Civil Partnerships - A potted history and bluffers' guide

Earlier today, the Public Bill Committee finished its scrutiny of the English and Welsh Marriage (Same Sex Couples) Bill 2012-13.  That scrutiny involved a line-by-line consideration of the Bill, followed by a report to Parliament.  The Committee approved – without amendment – all eighteen clauses and seven schedules to the Bill.  One additional provision proposed related to making Civil Partnerships available to heterosexual couples.


The Bill will now return to the House of Commons for the Report Stage.  There, MPs will have an opportunity to consider further amendments or new provisions that ought to be added.  Report stage is normally followed immediately by debate on the Bill's third reading.


There is no set time period between the end of Committee Stage and the start of the Report Stage.  It is estimated that Report Stage should be concluded by the end of May 2013.


Given that Civil Partnerships will be with us for some time to come, then, this blog attempts a whistle-stop tour around the formalities for forming and ending a Civil Partnership, and the legal consequences of being in one.  The content is correct at the time of writing, but of course may need revision depending on what happens with the Bill.  Also, the information provided is particular to the English and Welsh situation. 


The Civil Partnership Act 2004

Prior to 2004, a same-sex couple might live together, and be entitled to certain (limited) legal recognition of their relationship by virtue of being cohabitants.  However, there was no mechanism equivalent to marriage through which that relationship could be formally recognised.

This changed with the Civil Partnership Act 2004 (CPA).  The CPA introduced recognition for same-sex relationships.  Same-sex couples were able to register their relationship and acquire many of the same rights and obligations that married heterosexual couples have.

The CPA came into force on 5 December 2005, since which date Civil Partnerships have been available to same-sex (but not heterosexual) couples.

Forming a Civil Partnership

The CPA defines a Civil Partnership as a relationship between two people of the same sex, either: 

·                     formed by registration in England and Wales, or
·                     formed overseas and recognised in England and Wales.

The definition makes it plain that a Civil Partnership between a heterosexual couple is not currently possible.

In order to form a Civil Partnership in England and Wales, notice must first be given in the same way as is required for a marriage.  Notice is given at the couple’s local register office.  Notice must be given, and publicly displayed, for at least fifteen days before the Civil Partnership ceremony.  The proposed Civil Partners must have lived in the area in which they wish to give notice for at least seven full days before they will be eligible to give notice.

If the couple plan to hold the Civil Partnership ceremony other than where they live, they should also contact the register office responsible for that area to give notice. 

Once notice has been given, it is valid for up to twelve months.  However, if the couple decide to change the venue for their Civil Partnership, fresh notice must be given.

Both of the proposed Civil Partners must attend the register office in person.  No-one else can go for them, and one cannot go for the both of them. 

The following details must be given for each of the proposed Civil Partners in the notice:

·                    full name;
·                    age (the minimum age for a Civil Partnership in England and Wales is 16, and written consent of parents or guardians may be required for those under 18);
·                    address;
·                    nationality;
·                    current status (that is, whether single, divorced, widowed, etc);
·                    occupation, and
·                    intended venue for the Civil Partnership.

Documentary evidence will be needed to prove name, nationality, age and address.  A current passport or driver’s licence will be sufficient in many cases.  Alternative documents that might be suitable include birth certificates, national ID cards, bank statements and utility bills.  Proposed Civil Partners should check with the Superintendent Registrar in advance to make sure they have the necessary documents. 

So long as the notice requirements have been met, the Civil Partnership is formed on both parties signing a Civil Partnership document.  They must sign this document in the presence of one another, a Civil Partnership Registrar and two witnesses.

It is not currently possible to conduct a Civil Partnership ceremony on religious premises.  However, it is possible to arrange for the Civil Partnership to be blessed subsequently in a religious ceremony.  Whether it is depends on the particular tenets of the religion in question.

Frequently, people change their name when registering a Civil Partnership.  A copy of the Civil Partnership certificate will usually be sufficient proof of the change.

Recognising foreign Civil Partnerships

The CPA includes provisions about recognising here legal partnerships and same-sex marriages from other countries.  Schedule 20 to the CPA includes a list of countries and relationships that will automatically be recognised here as Civil Partnerships.

Even if a foreign relationship is not mentioned in Schedule 20, it will likely be recognised here as a Civil Partnership so long as: 

·                     the relationship is a legally exclusive one (that is, it is not available to those already in another marriage or legally-recognised relationship);
·                     the relationship is of indeterminate duration (that is, it does not end automatically after a defined period), and
·                     the effect of the relationship is that the parties are treated as a couple or as married.

As a general rule, so long as the formalities for a valid same-sex relationship have been observed in the country where the ceremony occurred, and the parties have legal capacity (that is, they are adults and not suffering from a disorder that impairs their ability to make sound decisions), the relationship will be recognised here. 

Civil Partnership Contracts

Civil Partners may decide to enter into an agreement that says how their property, income and other financial resources will be divided if the relationship ends.

The agreement may be reached either before or after the Civil Partnership ceremony.  If before, the document is called a Pre-Civil Partnership Contract (or Agreement).  If after, it is called a Post-Civil Partnership Contract (or Agreement).

Civil Partnership Contracts are treated in exactly the same way as Pre-Nuptial or Post-Nuptial Agreements (between husbands and wives).

In short, a Civil Partnership Contract is not absolutely enforceable.  However, its terms would be taken into account by any court considering what was a fair division of assets, income and financial resources on the breakdown of the Civil Partnership.

The consequences of Civil Partnership

Those in a Civil Partnership enjoy the same rights as those in a marriage.

So, a Civil Partner can acquire parental responsibility for his or her partner’s children by agreement or court order.  Civil Partners are generally treated as married people for the purposes of entitlement to welfare benefits.

If a Civil Partnership breaks down, the partners have the same claims to maintenance, lump sum payments, property transfer orders and pension sharing as husbands and wives enjoy.

Some other areas where Civil Partners enjoy the same rights as married heterosexuals include:

·                    for inheritance tax purposes;
·                    entitlement to claim from a Civil Partner’s estate;
·                    entitlement to the equivalent of a widow’s / widower’s pension from a Civil Partner’s fund;
·                    immigration / nationality considerations;
·                    entitlement to claim in the event of the Civil Partner suffering a fatal accident, and
·                    employment benefits.

Unless specifically stated, it ought to be assumed that Civil Partners’ rights mirror those that spouses have.

Ending Civil Partnerships

The processes for ending a Civil Partnership are virtually identical to those for ending a marriage.  There are only a few key differences:

·                    a Civil Partnership cannot be terminated through nullity on account of wilful non-consummation of the relationship;
·                    whilst a marriage ends with divorce, the corresponding label for Civil Partnership is dissolution;
·                    a Civil Partner may not rely on adultery to prove the irretrievable breakdown of the relationship when seeking a dissolution;
·                    the preliminary nullity or dissolution order is called a Conditional Order (in marriage cases, it is called Decree Nisi);
·                    the final order that ends the Civil Partnership is called a Dissolution Order (in marriage cases, it is called Decree Absolute).

Leaving aside these minor variations, the procedure for obtaining a dissolution is identical to that for obtaining a divorce.  The procedure for obtaining a financial order on dissolution is identical to that for obtaining one on divorce.

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