Comment | Marriage or Civil Partnership? Is one a better option than the other?

In 1753 the Marriage Act, promoted by the then notorious Lord Chancellor, Lord Hardwicke, declared that all marriage ceremonies must be conducted by a minister in a parish church or chapel of the Church of England to be legally binding and of course could only be legal if between a man and a woman, even if one of those was a child!  

How far then family law has come.  The equalization of marriage rights between same-sex and gay couples is finally on the statute books.

The first same sex marriage took place in March 2014. It was momentous to first hear a Registrar explain to an excited gay couple the changed definition of marriage as the lawful union of two people. Such a small linguistic change but a seismic difference.

Since becoming legal in 2013 in England and Wales, the number of gay couples deciding to tie the knot has risen steadily. The latest figures available show that 60,081 same-sex couples married in 2016, up from 26,087 in 2015.

However there has also been a rise in divorce rates – there were 338 divorces of same-sex couples in 2017, a threefold increase from 2016.

That is a trend that has not been seen in opposite sex marriages, where divorce has steadily declined, as has marriage. Perhaps more interestingly, in 2017 over half of all civil partnerships involved partners aged over 50.  

Of course, getting married isn’t right for all couples – but what are the differences between a marriage and a civil partnership?

A marriage is registered between two people once vows are spoken out loud and this is conducted through a religious or civil ceremony and it must be in public at a place registered to conduct marriages, officiated by someone registered to conduct the marriage ceremony.   

You need to do two things:  say “I do” and sign in presence of witnesses, the marriage register.

A civil partnership is a legal relationship which can be registered by two people of the same sex but does not have to be. If you are in a same-sex relationship, registering a civil partnership will give your relationship legal recognition. This will give you added legal rights, as well as responsibilities.

To register a civil partnership, you and your partner must sign a civil partnership document in front of two witnesses and a registrar.

Do your legal rights differ?

In some situations, a same-sex couple who have not registered a civil partnership will have the same legal rights and responsibilities as a couple who have registered a civil partnership.

This will be the case, for example, when working out your entitlement to welfare benefits and tax credits but not necessarily for other financial matters.

Crucially your legal rights and obligations are the same if you enter into a marriage or a registered civil partnership – and these rights cover divorce (status), inheritance rights on death, tax relief, pensions, tenancies and next-of-kin arrangements for example.

Something to bear in mind is that whilst marriage is an accepted global arrangement, civil partnerships generally are not, particularly same sex partnerships.

This might cause issues if you are attempting to emigrate, for example and you must check first as the impact of a foreign divorce in a state that does not recognise same sex marriage could be very significant. 

If you have children together even more so and definitely get advice before you leave these shores for pastures new – do not expect the same rights elsewhere.

Breaking up is hard to do – is getting a civil partnership dissolved easier?

No couple on the brink of committing to a life together wants to think about breaking up, but I encourage you to consider the process for each, to ensure that you enter into the arrangement that best suits you.   

Divorce and separation can happen even to the most committed relationships and being forewarned does not need to dent the romance.

To apply for a dissolution or divorce, the couple must have been married or in a civil partnership for at least a year.

The partner (husband/wife or civil partner) wanting to dissolve the civil partnership is called the applicant. The only ground for a divorce or dissolution is that the relationship has irretrievably broken down but there must be a fact that proves that ground.

One of the key differences between an opposite sex marriage and a same-sex marriage and civil partnerships, is that adultery can only be a basis for divorce in an opposite sex marriages. 

It is not a fact that can be relied for divorce in a gay marriage or a same sex civil partnership. If you were in a civil partnership and found out your partner had been having an affair this wouldn’t warrant a dissolution per se, it would however amount to unreasonable behaviour, which you would plead as the fact leading to the irreconcilable breakdown of your partnership.

Whether you are married or in a civil partnership, the court will need to formally dissolve the marriage or partnership.

If you have been with your partner for less than a year you’ll have to wait until you are. If you don’t want to dissolve the partnership at the current time, you can apply for a separation order and to live apart without dissolving the partnership or formally divorcing. 

You can still apply for financially orders or orders relating to children after separating but not divorcing or dissolving a partnership.

If a couple has children and they decide to dissolve their civil partnership, both parents will remain responsible for supporting their children financially.

If you need financial support from your ex- partner, post-dissolution and there is a dispute, court orders are available as are court based enforcement orders, post-divorce or dissolution of partnership.

Divorce remains an expensive process with a typical divorce costing between £17,000 and £33,000.  A contested dissolution is not likely to be much less.

On the granting of a divorce or dissolution for a same-sex couple, the division of income and capital will be resolved by applying the same criteria as with heterosexual couples.

The court can order one partner to transfer property to the other. It can also order the sale of a property, and division of its proceeds.

The court can also order one partner to pay the other a lump sum and/or pay them maintenance. It can also vary trusts entered into, in contemplation of, or following, the marriage or civil partnership. Orders can also be made importantly in relation to the spouse or partners’ pensions.

There is now a process for converting a civil partnership into a marriage which involves a fee and a process again before a Registrar but it is relatively simply and can involve a formal ceremony if that is what you want.

So, whilst at the outset there does not seem to be many legal differences between marriage and civil partnership it is worth considering your options and making sure that you choose the right path.

For some, the traditions of marriage are appealing, for others, it is the modernity of civil partnerships (for example, with a civil partnership both parents’ names are included on the certificate) which appeals.

Most importantly your rights and obligations post-divorce or dissolution will be the same but it can be very complicated if there is a dispute so get the best advice you can, particularly if you or your spouse/partner are foreign nationals or there are children of the relationship.

Charles Hale QC, barrister at 4PB