It took a long and hard fought campaign for same sex couples to be afforded the same legal rights and responsibilities as straight married couples – the 2004 Civil Partnership Act being the evidence of that success.
The campaign was extended after that time to allow same sex couples to be able to marry or convert their civil partnership to a marriage – with victory coming during 2014 with the Marriage (Same-Sex Couples) Act 2013 coming into effect.
The act of changing a civil partnership to marriage can either be carried out at a register office and registrar (or their deputy) can complete the conversion at another approved venue (which can include religious premises registered for marriages of same-sex couples). At this time, you will be issued with a Marriage Certificate, which will be backdated from the date a civil partnership took place.
The decision as to whether to marry or enter a civil partnership will differ from couple to couple. And those already in a civil partnership may well decide that they wish to convert to a marriage.
Shortly after the change in the law to convert to same sex marriage was introduced, British singer Elton John married long-time partner David Furnish, saying: “Having our civil partnership was an incredible breakthrough for people that have campaigned for a long time — through the ’60s and the ’50s in England when it was so hard to be gay and hard to be open about it.”
He added, “So for this legislation (gay marriage) to come through is joyous, and we should celebrate it. We shouldn’t just say, ‘Oh, well we have a civil partnership. We’re not going to bother to get married.’ We will get married.”
But while those choices are entirely personal, what are the legal implications of marriage and civil partnership and what are the differences between them? While it may seem crass to discuss while the celebrations for the right of same sex couples to marry are still fresh in people’s minds, what are the differences between ending a civil partnership or a marriage?
The differences between marriage and civil partnership in terms of the rights afforded are negligible. There is a difference in how the two are formed - a civil partnership must remain secular even if formed on religious premises, whereas a marriage is solemnized according to the church or religious organisations rites.
A further difference is in the grounds for an annulment of marriage in contrast to a civil partnership – where there are no grounds for the dissolution of a civil partnership for adultery.
Are my rights affected?
Your financial claims on dissolution of marriage or civil partnership are enshrined in Statute and are the same for every married person or civil partner.
I know its not romantic but .....
Pre- and Post-Nuptial Agreements do apply to same sex marriages and civil partnerships
Divorce and civil partnership dissolution rates continue to rise. According to The Office for National Statistics, civil partnership dissolution rose by 20% in 2011 from 693 to 794 - more than doubling in the preceding three years. Civil partnership couples remain particularly vulnerable in the first 10 years of marriage, similarly to heterosexual marriages according to statistics. It is anticipated that the same will apply to same sex marriages.
People are marrying later for a variety of reasons, including focus on career and economic uncertainty. By the time people marry, they often have pre-marital property that they want to protect. Indeed the Divorce (Financial Provision) Bill was introduced by Baroness Deech on 25 February 2014 for this very reason and is wholeheartedly supported by the Law Commission. A second reading of this Bill has already taken place in June 2014 but it is felt unlikely to proceed in its current form with changes being anticipated before it reaches final approval and made law. This is a firm step in the direction of relationship planning and pre and post marital agreements for all proposed marriages including same sex marriage and civil partnerships.
By entering into a pre- or post-nuptial / civil partnership agreement, you cannot override the court's ability to decide how your finances should be divided on a divorce or civil partnership dissolution. However, when considering an application for financial remedy, the court must give appropriate weight to a pre or post-nuptial agreement as a relevant circumstance of the case. This gives considerable purpose to the creation of a pre- or post-nuptial agreement.
Following the Supreme Court decision in Radmacher v Granatino in October 2010, the court will uphold a pre-nuptial agreement that is freely entered into by both parties with a full appreciation of its implications, unless in the circumstances it would not be fair to uphold the agreement. Provided that test is met, the court will give effect to a pre or post-nuptial agreement and so you should expect to be held to its terms.
*******
For advice on the issues surrounding Pre and Post Nuptial Agreements and Financial Remedy subsequent to Civil Partnership Dissolution or Divorce please contact Jackie Jessiman at Cambridge law firm Woodfines on 01223 411421 or jjessiman@woodfines.co.uk. A seminar is also anticipated during the Spring covering this topic to register your interest please contact tbancroft@woodfines.co.uk
______________________________________________