1 February 2006
Since new laws recognising same-sex relationships were passed last year, family law specialists have been preparing for what happens when civil partnerships go wrong.Pop star Sir Elton John and his partner David Furnish were among the first of hundreds of gay couples to form civil partnerships in December 2005, when laws recognising same-sex relationships were introduced in the UK.
Same-sex couples who form a civil partnership will be on an even footing with heterosexual couples who enter into marriage. They will have a raft of rights and responsibilities, with perhaps the most important of these being equal treatment for tax, inheritance tax and employment and pension benefits.The civil partnership is exclusively for same-sex couples and distinct from marriage. For instance, a civil partnership is formed when the second civil partner signs the relevant document, whereas a marriage becomes official when the couple exchange spoken words. And while heterosexual couples can opt for a religious or civil marriage ceremony, gay couples are only entitled to civil procedures.Bring in the Lawyers
Withers family law specialist and joint author of Civil Partnership: The New Law Mark Harper says lawyers need to be prepared to deal with the issues arising from alternative family law. "The test will be how the courts interpret things such as asset division when civil partners split up," he says. "For instance, when there are no children involved and there's no gender discrimination to be considered, as happens when dividing assets up in a divorce."Obviously, it's a big turning point for recognition of same-sex couples, but couples need to bear in mind the consequences if the relationship does terminate."Arise the pre-nup
The Law Society is advising would-be civil partners to consider a prenuptial agreement, which allows same-sex couples to decide who gets what in the event of the relationship breaking down. But there is a hitch: although the courts will take such agreements into consideration, they are not legally enforceable.That said, judges are more likely to uphold an agreement if both partners get separate legal advice and disclose fully their financial positions without exerting pressure on the other. Rawlison Butler family lawyer Nigel Winter says the reality is that 30 per cent of gay partnerships will break down."As with marriages, a significant percentage [of civil partnerships] will go wrong," argues Winter. "That's not to say the Civil Partnerships Act is not to be welcomed or taken advantage of by those to whom it applies. Simply that partners should try to avoid the legal costs of dissolution that can so plague divorce."Winter suggests that same-sex couples ought to think about entering into a pre-registration agreement before taking the plunge. He says if the agreement is done correctly, its contents will be considered by the courts."[The pre-registration agreement] is one of a range of perhaps a dozen or so factors that the courts take into account, giving varying degrees of weight. It's likely to be influential rather than compelling. Despite all the foregoing, I contend that it's better to have a pre-registration agreement than not," he argues.In contrast, gay lawyers who understand fully the potential legal consequences, have embraced civil partnerships wholeheartedly.According to a survey carried out by the Lesbian and Gay Lawyers Association, 52 per cent of members in a steady relationship said they planned to register as civil partners.Chairman of the association and principal of Alternative Family Law Andrea Woelke says the rate of dissolution among civil partnerships is likely to be less than divorce."A great number of the couples who decide to register will have been together for many years," he says. "Because of the amount of time it has taken to get to this point and the campaigning involved, I think the majority of gay couples will take civil partnerships a lot more seriously than some people seem to think."The Holes
But the new laws do have some shortcomings, which the association is quick to point out."The laws could have been quite simple as we originally suggested they should be, but the Government chose to completely rewrite them from scratch," Woelke argues. "So there are faults. For example, a registered couple's state pension is less than that paid to two single people. So you have people who have been relying on that income stream for many years and suddenly it's going to be taken away from them. Also the fact that civil partnerships won't be recognised in some countries could also pose a problem."Wider Issues
The advent of same-sex partnerships could mean more discrimination claims. Existing legislation dealing with financial matters, immigration, inheritance, pension provisions and employment are expected to be amended to include civil partners.Martineau Johnson employment partner Jane Byford says companies will have to consider equality and family-friendly rights."This will impact on aspects such as the benefits employers provide," she says. "For example, civil partners need to be granted access to spouses' pensions and to family benefits under private health insurance schemes provided by employers in the same way as married partners. All companies should be thoroughly reviewing their diversity policies."The Big Picture
While lawyers continue to think of all of the new legal problems that could arise from the Civil Partnerships Act, most agree that the new laws are a step in the right direction towards giving same-sex couples similar rights to their heterosexual counterparts’. But the most interesting aspect from a legal perspective, will be how the courts interpret the new legislation. Only then will the merits and demerits of the act emerge.