Since 2004, same sex couples have been able to obtain recognition and legal protections in respect of their relationship through civil partnership, and there can’t be many good family solicitors and London top divorce lawyers who have not advised on a civil partnership. But is it a real alternative to marriage? With the announcement that heterosexual couples will now be able to enter into a civil partnership as well as same sex couples, perhaps the 2 states – marriage and civil partnership can finally be seen as equal.
Civil partnership or marriage
At a time when so called ‘gay marriage’ was not available in the UK, civil partnership plugged a gap that had been identified long ago. Many, many same sex couples lived in committed, long term relationships akin to a heterosexual couple, but when it came to pension rules, inheritance laws, or relationship breakdown, along with a myriad of other administrative requirements, the couple had no legal standing. If there was no will, the rules of intestacy would prevent the partner from automatically inheriting (unlike a spouse in a similar position); pension schemes did not recognise same sex partners; and if the relationship broke down, it would be far harder to achieve a settlement. The situation has remained the same for cohabiting heterosexual couples until the recent announcement in respect of the availability of civil partnership.
Although civil partnership was a huge step forward for equal rights, there remained some differences between civil partnership and marriage that divorce solicitors in London remained particularly aware of. One of the key differences is that those in a civil partnership cannot call themselves ‘married’ for legal purposes. Other differences include the fact that in a civil partnership, both the parents of the couple must be named on the civil partnership document, and adultery cannot be used to demonstrate the irretrievable breakdown of the relationship.
Gay marriage leaves heterosexual couples missing out
In 2013, it was announced that marriage would be available to same sex couples – who would also be able to convert their civil partnership into a marriage if they chose to do so. This was great news, welcomed by London family solicitors as perhaps the final step in putting same sex relationships on an equal footing with heterosexual relationships. While many other areas remained to be tackled, this was a platform to work from. However, by allowing gay marriage, the UK Government created a situation where heterosexual couples were now in a worse position than same sex couples.
Heterosexual couples have, historically, only been able to obtain legal recognition for their partnership through marriage. Despite widely held belief in the existence of a ‘common law marriage’ between unmarried couples, the reality, that many have come to understand with the help of a London divorce solicitor, is that there is no such thing. The introduction of cohabitation agreements has meant that heterosexual couples have been able to create legally binding agreements as to what should happen in the event that the relationship breaks down, but the process can be fraught with difficulty. In many cases, too, even if there is a cohabitation agreement in place, the couple may not have made wills in each other’s favour, or updated pension documentation with necessary signatures, meaning that they face taking legal action to realise any benefit that they might otherwise be entitled to.
human rights in the mix
The situation has really been brought to the fore following the recent Supreme Court ruling that the situation of denying heterosexual couples the right to enter into a civil partnership is contrary to the European Convention on human rights. Rebecca Steinfeld and Charles Keidan did not agree with the concept of marriage and saw civil partnership as an appropriate model for their relationship as being an equal partnership. Although the Court of Appeal had rejected an argument that the Civil Partnerships Act 2004 was incompatible with the ECHR, the Supreme Court overturned this and found in the couple’s favour.
While the Supreme Court’s judgment could not force the Government to change the position, it added a fairly compelling argument to the case for change. divorce and family lawyers across the UK have welcomed the announcement by Theresa May at the recent Conservative Party conference. It gives couples who would like to formalise their relationship but do not wish to get married a real alternative.
Cohabiting couples still at risk
Although heterosexual couples can now enter into a civil partnership, those who choose to neither take this option nor to marry remain very much in the vulnerable position they have always been. Recent litigation has taken small steps forward in different areas to improve the position of cohabiting couples, but this can at best be described as piecemeal. This remains the next big issue to tackle.
OTS Solicitors can advise on all aspects of civil partnership, marriage and cohabitation, and can offer practical advice and support should you find yourself in the position that your relationship has broken down. To discuss how we can help, in confidence, please call us on 0203 959 9123.
Posted on: Wednesday, 10 October, 2018