After many years on the political agenda the Civil Partnership Bill 2009 was published during the summer of that year. The Act is law since January 2011 and is lengthy and detailed and, in effect, equates civil partnership with marriage in most instances. Parties to a marriage cannot become civil partners and therefore it cannot be said to be an alternative to marriage, rather it is a separate scheme to allow those who do not have the option of marriage, ie same sex couples, to register their civil partnership.
As with marriage, the registration of a civil partnership brings with it a range of recognitions, responsibilities and protections which relate to such areas as maintenance, shared homes, succession, taxation, domestic violence, social welfare and pensions.
Pre-Civil Partnership Agreements
Couples entering in a civil partnership are increasingly opting to enter into pre-civil partnership agreements, espectially in circumstances where both parties are bringing their own assets into the civil partnership or where one civil partner has children by a previous relationship.
It is important to note that such agreements are not binding on a court in the event of a breakdown in the relationship and the court can make Orders that go against the agreement entered into by the parties. However, the agreement will be a factor to be taken into consideration by the court and some parties feel therefore that is better to have it than not. Such agreements are also increasingly being adhered to by the courts in England and it may be therefore that at some time in the future such agreements will carry more weight in this jurisdiction and for this reason parties may feel that it makes sense to enter into such an agreement now.
Consequences of Civil Partnerships
The Act sets out a number of rights and protections that are conferred on civil partners as a result of the registration of the civil partnership. These are dealt with in the Act under a number of headings, including shared home, maintenance, succession and domestic violence.
Shared Home Protection
The Act deals with what is called “shared home” protection. A shared home is defined as a dwelling in which civil partners ordinarily reside and so this is the civil partnership version of the family home. The Act seeks to apply the protections contained in the Family Home Protection Act to civil partners and therefore provides, for example, that a non owning partner has the right of veto over the sale of the shared home (although the veto may not apply if there is a contractual agreement between the parties prior to the registration of the civil partnership). The Act allows a court to dispense with the consent of a civil partner where such consent is unreasonably withheld and, as with a family home, a civil partner may apply to a court for orders restraining their civil partner from conduct which could reduce the interest in the shared home or make it unsuitable for that civil partner to live in. The Act also amends the Residential Tenancies Act 2004 to allow a civil partner to take over a tenancy on the death of his or her civil partner on the same terms and conditions that currently apply to spouses.
Part 5 of the Act deals with maintenance and the provisions set out in the Act in this regard are very similar to those already set out in the Family Law (Maintenance of Spouses and Children) Act 1976. The provisions regarding maintenance provide for the following:
- The Act allows a civil partner to apply to a court for maintenance during the course of the relationship where the other civil partner has failed to maintain him or her.
- Maintenance cannot be ordered where the applicant has deserted the other civil partner unless the court takes the view that, in all the circumstances of the case, it would be unjust not to make the order.
- The factors which a court must take into account when deciding on the appropriate level of maintenance include the assets of each partner, their income earning capacity and the financial or other responsibilities of the civil partners towards each other and each of the partners as a parent towards any dependent children and the needs of any dependent children and the responsibilities that each civil partner has towards any former spouse or civil partner. Conduct is not considered unless the court is of the opinion that in all the circumstances it would be unjust to disregard it.
- The Act also provides for attachment of earnings orders.
It is worth noting that there is no provision in the Act for maintenance for a dependent child of one of the civil partners, a clear distinction from the 1976 Act. Within the 1976 Act the definition of a dependent child of the family includes a dependent child of either spouse in relation to whom the other spouse is in loco parentis, that is that the other spouse has, in the knowledge that he is not the parent of the child, treated the child as a member of the family. Given that same sex relationships could easily involve children from a previous relationship it seems curious that such children are not afforded the same rights as those in a marriage. It remains to be seen whether the courts will in fact consider such a dependent child when making a maintenance order in favour of a civil partner.
Part 8 of the Act deals with succession and in general it affords civil partners the same rights as spouses pursuant to the Succession Act 1965. The Act does so by inserting the definition of civil partner into the 1965 Act. Therefore a civil partner will have the same rights as a spouse on the death of their partner, including legal right share in testate succession, the rules for distribution on intestacy and the treatment of spouses where claims are made by a child in relation to the estate of their deceased parent.
Under Part 9 of the Act a civil partner can claim all the protections afforded by the Domestic Violence Act 1996 that had hitherto only been available to spouses.
Recognition of Foreign Civil Partnerships
The Act provides for the recognition of foreign civil partnerships provided that the following conditions are met:
- The relationship is exclusive in nature.
- The relationship is permanent unless dissolved.
- The parties are not within the prohibited degrees of relationship.
- The relationship has been registered under the law of that jurisdiction.
- The rights and obligations attended on that relationship or in the opinion of the Minister for Justice are sufficient to indicate that the relationship will be treated comparably to a civil partnership.
Similar provisions are set out in Section 5 of the Act with regard to dissolutions of partnerships abroad.
Termination of a Civil Partnership
Civil partnerships can be terminated by nullity or dissolution, the equivalent of divorce for civil partners. There are no provisions for separation and there is no concept of Judicial Separation for civil partnership akin to the 1989 Act.
As regards annulment, Part 11 of the Act sets out the grounds on which a nullity can be granted. Essentially the Act states that a nullity can be granted if, at the time civil partnership was registered, either or both of them lacked the capacity to become a civil partner for any reason, including:
- Either or both were under 18 years of age.
- Either or both were already in a valid marriage.
- Either or both were already in a valid civil partnership.
- The formalities for registration were not observed.
- Either or both did not give free and informed consent.
- The parties were in prohibited degrees of relationship.
- The parties were not of the same sex.
Where a court grants a decree of nullity to civil partners the partnership is declared not to have existed and either civil partner may therefore register a new civil partnership or marry. Section 104 of the Act provides for a summary procedure for civil partners whose partnership has been annulled to deal with the property aspects of their relationship.
Decree of Dissolution
Part 12 of the Act deals with the dissolution of civil partnerships and the phrase dissolution is used instead of the word divorce. The principal difference between dissolution and divorce lie in the grounds for the grant of a dissolution. These are contained in Section 108 of the Act and provide that a Court may grant a decree of dissolution if it is satisfied that:
- At the date of the institution of the proceedings the civil partners have lived apart from one another for a period of or a period amounting to at least two years during the previous three years; and
- Provision that the court considered proper having regard to the circumstances exists or will be made for the civil partners.
One of the biggest differences between dissolution and divorce is that the length of separation required for a dissolution is two years as opposed to four years in the case of divorce (as civil partnership is not constrained by the Constitution). However, unlike marriage there is no option to take Judicial Separation proceedings until the two years are up with the result that one partner could be left in difficult financial circumstances for that period of time. In granting a Decree of Dissolution, a court need only consider provision for the other partner and not for any dependent member of the civil partnership. This is in sharp contrast to the position on divorce where, pursuant to the 1996 Act, a spouse can be made liable for his or her non-biological child.
Under the Act a full range of ancillary relief Orders can be made by a court, similar to those on divorce. The Orders that can be made include:
- Maintenance pending suit orders.
- Maintenance by way of lump sum or periodical payments.
- Property adjustment orders.
- Financial compensation orders.
- Pension adjustment orders.
- Orders for the sale of property.
- Application for provision from the estate of a deceased civil partner or an order blocking such provision.
As with Judicial Separation and Divorce, the Circuit Court and High Court have concurrent jurisdiction to hear civil partnership dissolution proceedings and to make ancillary relief orders. The District Court meanwhile will have jurisdiction to hear domestic violence cases, certain property disputes and maintenance matters. It is also envisaged that civil partnership proceedings will be heard in camera and in an informal manner, as is the case with family law proceedings at present.