26 January 2004
The Government’s plans to reintroduce the Civil Partnerships Bill to Parliament in its amended form would introduce a scheme whereby same-sex couples can choose to register as a ‘civil partnership’. This would carry with it recognised legal (and social) status.
Same-sex couples currently experience all manner of problems due to lack of official status. These include difficulties in relation to tenancy succession, hospital rights, inheritance, life insurance and pension rights. The civil partnership scheme would resolve all these issues, in addition to providing new rights in relation to employment and parenting, protection from domestic violence and exemption from testifying against each other in court.
Alongside the new rights are various responsibilities, particularly concerning the breakdown of the relationship and the subsequent dissolution of the partnership. The court will be able to order a partner to pay child support or maintenance to the other party, as well as having powers to make financial adjustments which mirror the powers it has in relation to divorcing couples.
Under the proposals, there is only one legal distinction between marriage and civil partnership, which relates to immigration, where bi-national gay couples face more stringent checks to prove their status as a committed couple. Concern has also been expressed that the bill does not grant exemptions from inheritance tax or capital gains tax on gifts between partners. However, the Government has stated that this is a matter to be dealt with in the Budget.
In all other respects, therefore, civil partnership carries all the rights and responsibilities of marriage. The extent of the proposals raises the question as to why the Government did not just extend the right to marry to same-sex couples. The answer must be that to do so would be too controversial. By effectively achieving the same result under a different name, the Government has so far managed to avoid a public backlash or huge tabloid outrage. Same-sex couples, then, are still excluded from marriage, which in itself could be thought to highlight the difference in social acceptability.
The fact that the proposals are in effect so similar to marriage is underlined by the fact that heterosexual couples will not be able to register a civil partnership. The Government’s stated reason for this is that heterosexual couples already have the option of cementing their relationship and acquiring legal status through marriage.
While this is true, there remains the problem that the majority of cohabiting heterosexual couples are unaware of their lack of rights. The ‘common law’ myth has long haunted family lawyers. The term has no legal meaning, and many cohabiting couples (a recent survey suggests 59 per cent) are unaware that if their relationship breaks down irretrievably or their partner dies intestate, unless there is jointly owned property, they have few rights.
Some believe, therefore, that the bill should be extended to include heterosexual couples. However, it is true that heterosexual couples do have the option of marriage and, if they choose not to exercise it, why would they instead choose to enter into a civil partnership, which effectively confers the same status?
There are two aspects to improving the current position for heterosexuals: an increase in education and awareness, so that couples can choose to alter their financial arrangements accordingly, and the introduction of new legislation, which is being sought by the Solicitors Family Law Association (SFLA) and which proposes that cohabitants should be able to apply to the court for financial relief on the breakdown of a relationship where there has been cohabitation in excess of two years, or straight away if there are children involved.
Of course, many people do not marry to avoid the financial repercussions of a possible divorce, so to introduce new legislation that would have a similar effect could be seen as too interventionist. The SFLA has therefore proposed that couples should be able to “opt out” through a cohabitation contract. This does seem a sensible solution, but must be accompanied by public education, otherwise there is a risk that couples may fail to opt out and will find themselves caught by financial commitments they never intended.