All's fair in love & law?

The new Partnership Register is a step towards the recognition of gay couple's rights. Jon Robins meets the lawyers campaigning for change


When Ian Burford and Alex Cannell became the first gay couple to have their relationship recognised formally by the state earlier this month, they were keen to point out that this was no 'pink wedding'.
“We're steering clear of any sentimental marriage imitations,” declared Cannell, a senior nursing manager at a London hospital. “There will be no flowers, no confetti and no declaration of vows.”
All the same, it was a joyous occasion for guests and campaigners alike when the two men signed Mayor of London Ken Livingstone's London Partnership Register. “There was so much gloom and terrifying things happening in the world that week it was nice to see something so human and happy,” recalls Angela Mason, the solicitor chief executive of lesbian and gay pressure group Stonewall, who attended the ceremony.
According to Burford, a former member of the English Shakespeare Company, the event was “not a marriage, but a recognition of the value of a partnership. For 38 years I've had the love, friendship and support of Alex, and throughout whatever years are left to us he knows that he has my love, friendship and support.”
The ceremony took place at the Greater London Authority headquarters in Westminster and the couple received a bouquet of flowers from the guest of honour Ken Livingstone.
For gay rights activists, the campaign for the legal recognition of couples of the same sex continues apace this year with two bills on cohabitation rights, which are expected to be introduced in Parliament in the coming months. “The lesbian and gay movement is growing up and people are looking to change the terms of their everyday lives,” claims Mason. “It's not about the great flag-waving issues, but those that affect how you live.”
Mason advises Livingstone on issues relating to homosexuality in the capital. She believes that the London Register has put the issue of partnership rights “back on the agenda”. Every Wednesday and Saturday, for a fee of £85, gay and straight couples will now be able to get 'hitched', and take home a certificate as proof. So far, 75 couples have made appointments for their registration and more than 300 applications have been made. It is an idea that is expected to take hold beyond the M25, with Brighton's, Manchester's and Liverpool's councils expected to follow London's example.

“It&#39s not about the great flag-waving issues, but those that affect how you live”
Angela Mason, Stonewall

Speaking before the ceremony, Livingstone acknowledged that neither the certificate nor the ceremony conferred any legal rights upon the parties, but he expressed hope that it might help, for example, with tenancy or immigration disputes.
As he pointed out: “MPs have voted that their own partners will qualify for full pension rights, and we're asking them to give to the community what they've given to themselves.”
“It has no legal effect whatsoever, but it is truly symbolic,” says Mark Harper, a family partner at City-based firm Withers. “In fact, it's value as a symbol is huge insofar as it's the first time that there is such a register in this country, and it's likely to lead to yet more calls for law reform to give cohabitees more rights.”
Andrew Newbury, a partner at Manchester firm Pannone & Partners and a member of the Solicitors Family Law Association (SFLA), welcomes the register, but he also sounds a note of caution. He believes that a non-legally-enforceable register could add to the confusion that exists around unmarried couples. “My concern is that it perpetuates the myth of the 'common law wife',” he argues. “There's no such legal concept, and just by someone registering their relationship will not grant any additional rights as far as cohabitees are concerned – whether heterosexual or homosexual.”
As Newbury points out, over the last two decades the number of people living together who are unmarried has trebled, from 9 per cent of the total to around 33 per cent. There are in the region of 1.6 million cohabitees.
“So a significant proportion of the population is living together,” Newbury continues, “and from that, another significant part believe that they have legal rights which aren't there, and the only way we're going to deal with that is through legislation.”
Next month, the Liberal Democrat peer and tenant of Blackstone Chambers Lord Lester will sponsor a Private Members' Bill in the House of Lords. It is expected to recommend a civil partnership register offering unmarried couples the same legal rights as their wedded equivalents. Jane Griffith, Labour MP for Reading East, is also planning to seek the approval of the House of Commons for a 10-minute bill on 24 October.
Harper detects a building momentum in the movement for change. As campaigners take their fight to Westminster, the Law Commission is expected to publish a consultation paper on home-sharing, including cohabitation rights, which it has been looking at for six years; and north of the border, the Scottish Executive has pledged to reform its law.

“I hope as every year passes more and more people realise that the present law for cohabitants is grossly unfair and needs to be changed”
Mark Harper, Withers

“I hope as every year passes more and more people realise that the present law for cohabitants is grossly unfair and needs to be changed,” Harper says. He has been involved in recent proposals from both the Law Society and the SFLA on reforming cohabitation law.
According to Harper, Lord Lester's bill is still in draft form. “It's actually a very radical proposal, because it is in effect treating those who register their partnerships in exactly the same way as those that get married,” he says.
According to Harper, the SFLA and the Law Society proposed “opt-out” schemes which provided “blanket rights to everyone”, whereas Lord Lester's bill provides for a system of registration whereby “only if you sign up do you get the rights”.
Andrea Woelke, a solicitor at Anthony Gold who advises same-sex and unmarried couples on such issues, argues that the intention of any future legislation must be framed “to protect the vulnerable party and stop people from escaping their liabilities”.
“The only way to achieve that is to introduce rights for all people that are living in a committed relationship, whether they register or not,” he says. “There could be an opt-out if they'd thought about what they want to do and for some reason they didn't want those rights.”
Under the SFLA proposals, cohabitants could apply to the court for financial relief where the parties have been living together for two years, unless there are children, in which case there would be no minimum. The SFLA recommends that the courts make property adjustment orders and short-term financial support available for not more than three years, and argues that an opt-out provision should be available to provide freedom of choice for cohabitants.
For Mason at Stonewall there are two distinct reasons for law reform. First, she believes that many lesbians and gay men want to feel “part of the process” in the same way as many of their heterosexual peers do. “There's no public recognition of your partnership,” she says, “and people do want public milestones in their lives.”

“Is it fair that you can live with someone for 40 years and not be entitled to a pension as their dependant, when you could be married for a couple of years and automatically be provided for?”
Gill Butler, Butler Wade

The second reason is the discrimination that homosexual and unmarried couples face in looking after their own affairs. Gill Butler, a partner at London firm Evans Butler Wade, spends a lot of time dealing with the inequalities that her gay clients face over pensions, inheritance tax or housing succession (see box).
For example, many pension schemes, including all public sector superannuation schemes, provide for a widow's or widower's pension if one partner dies before their spouse, but this is not the case for a gay or lesbian partner. “Is it fair that you can live with someone for 40 years and not be entitled to a pension as their dependant, when you could be married for a couple of years and automatically be provided for?” asks Butler.
The newly-registered Burford and Cannell have been a couple for almost four decades, and when they first met they purchased a house together for £8,000 in Battersea. Mason points out that it is now worth “God knows what”, but one day they would be liable to pay tax on it at 40 per cent over the £242,000 threshold. She adds that, in similar situations, couples have been forced to sell their own homes to avoid such a bill.
On the Continent, new laws which recognise same-sex marriages are rapidly leaving the UK isolated. Gay weddings were introduced in Germany this August, more than 10 years after Denmark became the first country to give homosexual couples a legal status. Iceland, Sweden, Finland, Norway and France have all introduced similar laws. Earlier in the year, the Netherlands went a step further and legalised same-sex marriages, which allowed couples to adopt.
Butler believes that the Dutch model comes “closest to what is both fair and reasonable”. A number of her clients are lesbian couples with children and the partner who is not the birth mother cannot jointly adopt the child.
Perhaps unsurprisingly, Butler is not confident about the likelihood of any legislation making it through the House of Lords without the strong support of the Government. As she points out: “In France last year partnership rights were introduced, and French society hasn't come to a standstill and Sodom and Gomorrah hasn't overrun Paris.”
Mason hopes that the bill will receive a more sympathetic ride through the House of Lords than past gay rights issues have had. “It's a very different issue from Section 28 or the age of consent,” she says. “This is about how consenting adults with responsible and committed lives can administer their own affairs and how they shouldn't be treated differently from anybody else.”

The Stonewall guide to gay discrimination

Pensions
Many pension schemes, including all public sector superannuation schemes, provide for a widow's or widower's pension if the pensioner dies before his or her spouse. With these schemes, a gay or lesbian partner can never benefit no matter how long they have lived together. Other schemes provide a pension to a surviving dependant, including in some schemes a same-sex partner. The Inland Revenue has made it clear that it does not object to same-sex partners receiving a dependent's pension, but pension schemes are not obliged to stop discriminating.
Fringe benefits
Employers often provide fringe benefits for a husband, wife or heterosexual partner, but re-fuse the same benefits to same-sex partners, including health insurance, life insurance and the cheap or free use of the employer's services. Some employers have equalised these benefits in recent years, including: British Airways (free flights), London Underground (free travel) and John Lewis (staff discount card), but others still refuse to. Stonewall successfully backed a case against South West Trains which re-sulted in same-sex partners gaining the same travel privileges as heterosexual partners.
Tax
Married couples can transfer as much property as they like from one to the other without paying capital gains tax. They can also leave as much property as they like to each other in their will – no matter how big their estate, their partner will not have to pay inheritance tax. Same-sex couples cannot do this. After the first £200,000, they pay tax at 40 per cent. Married couples also benefit from the married couples' tax allowance, worth £268.50 a year.
Inheritance
If one half of a gay relationship dies without leaving a will, their property passes not to their partner but comes under the rules of intestacy, which normally means it
goes to their closest blood relatives. Lesbians and gay men have been known to be thrown out of their home by their partner's family because their partner died without leaving a will.
Adoption
Unmarried couples are not allowed to adopt jointly. A lesbian partner cannot even adopt their own child in order to formalise the relationship between the child and the non-biological parent. The marriage requirement also makes it very difficult for same-sex couples to adopt other children, as couples
are generally considered preferable to single adopters. Where they do succeed in adopting, only one of them becomes the legal parent.
Next of kin
People who can be classed as next of kin are defined as being either those married to a person or close blood relatives. Same-sex partners are not deemed to be next of kin. This can cause problems if one partner is ill or dies – it is the next of kin who are consulted in hospital and the next of kin who are entitled to make funeral arrangements. Powers of attorney can be used to gain some of the legal rights and responsibilities of a next of kin.
Housing
Married and unmarried heterosexual couples have the right to succeed to a council tenancy or private sector tenancy. Lesbian and gay couples do not. Stonewall has campaigned to change the law in this area with limited success. The Government has issued guidance recommending that local authorities allow a same-sex partner to succeed in the same way, but this guidance is not binding and does not affect private tenancies.