The Civil Partnership Act (CPA) comes into force on 5 December. This radical piece of social policy legislation creates an entirely new legal status for same-sex relationships.
It is interesting to see how different countries have responded to the demand for same-sex partnership rights. A small group of countries, including most recently Spain and Canada, has allowed same-sex couples to marry. A larger group has decided instead to create a new legal status for same-sex couples. In this group, some types of partnership could be said to be marriage in all but name, while others are more restricted in terms of legal rights and responsibilities, such as the French Pacte Civile de Solidarité.
In the UK, civil partnership has been designed to be as close to marriage as possible. The first civil partnership ceremony in the UK is due to take place in Northern Ireland on 20 December; the first date in England, Wales and Scotland is 21 December (although earlier registrations are possible where one of the partners is terminally ill). An application must first be made at a local register office and will be followed by a short waiting period. The ceremony itself can take place at a register office or any secular venue licensed for the purpose. The act of registering as partners will be effected by signing a ‘Civil Partnership’ document in the presence of a registrar, each other and witnesses.
The rules do not provide for an exchange of vows or any of the other more poetic elements of a wedding ceremony, although in practice, most registrars will allow additions to an otherwise boring registration process. What will not be permitted is the setting of the registration within a religious rite.
So, how will the legal position of same-sex couples change if they register as civil partners?
Before civil partnership
Sarah and Angela are a lesbian couple who have cohabited for many years. The CPA is not yet in force. They live in a valuable house owned by Sarah, who had been briefly married to Keith; she and Keith had a son (Andrew) who is now 13 and lives with Sarah and Angela. Relations between Keith and the couple are strained.
Sarah dies unexpectedly. Fortunately, she and Angela made wills in favour of each other and Sarah’s will states that Angela inherits the house for her lifetime, but then it passes to Andrew.
The problem here is inheritance tax. Existing law does not give any relief between unmarried couples, so on Sarah’s death inheritance tax will be charged at 40 per cent on the whole estate over the tax-free threshold, currently £275,000.
Sarah’s will named Angela as Andrew’s guardian, but Keith wants Andrew to live with him. If they cannot resolve the dispute between them it may have to go to court. The Children Act 1989 allows an application for a residence order to be made by a person with whom the child has lived for three years or more and Angela would be able to apply to the court on that basis.
After civil partnership
Imagine instead that Sarah and Angela are both still alive and register as civil partners in December. They make new wills, as existing wills are automatically revoked upon registration.
Sarah then dies unexpectedly. Her will, as before, gives Angela the right to stay in the house for her lifetime. The inheritance tax legislation has now been amended so that spouse exemption (previously available only to married couples) is also available between civil partners. There is no inheritance tax liability on Sarah’s death.
As regards Andrew, the act treats a civil partner as a step-parent of their partner’s children. Angela would still need to apply to the court if she and Keith disagreed on Andrew’s future.
The marriage comparison
Civil partnerships are close to marriage in many respects. For example, the procedure for the dissolution of a civil partnership is modelled closely on divorce law. The most important difference is in the grounds upon which dissolution can be sought. One of the grounds for divorce is that there has been adultery by one of the spouses. The legal definition of adultery, however, requires an act of intercourse which, by definition, has to be heterosexual. For that reason, adultery has been omitted as a ground for dissolution. However, the same conduct could amount to ‘unreasonable behaviour’.
The tax consequences of registering as civil partners will be identical to those of getting married. Similarly, in the area of social security benefits, civil partners will be treated in the same way as spouses whereas cohabiting same-sex couples are currently assessed as two single people. Interestingly, the effects of the benefit changes are not limited to registered civil partners. Two people of the same-sex who are not registered, but who are ‘living together as if they were civil partners’ are also to be assessed together for the purposes of means-tested benefits and tax credits.
A similar approach has been followed across all areas of the law from immigration to adoption, as well as to more obscure corners of the statute book, such as the Slaughterhouses Act 1974 and the Disused Burial Grounds (Amendment) Act 1981.
Equality under the law?
Some argue that the CPA has created a new species of discrimination rather than getting rid of an old one. Gay and lesbian couples may still not marry and now heterosexual couples are to be excluded from the status of civil partnership. Those who hold to this view will continue to argue for nothing less than the right for gay couples to marry.
A test case on this issue is to be heard in the High Court next year: Celia Kitzinger and Sue Wilkinson, a lesbian couple who legally married in Canada, will argue that the UK’s failure to recognise their marriage is a breach of their human rights under Articles 8, 12 and 14 of the European Convention on Human Rights. None of this, however, is likely to spoil the party for the many couples who will register from December.
Julian Washington is aprivate client partner at Forsters