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Joinder of trustees and treatment of trust assets in English matrimonial proceedings: DR v GR and others
31 July 2013
The fictional union in The Archers on BBC Radio 4 last December between Ian Craig and Adam Macy coincided with the real-life announcement that one of the first couples in the UK to enter into a civil partnership had separated.
Darryl Bullock and Mark Godfrey from Bristol exchanged their vows on 21 December 2005 but now live apart and are reported to be seeking the dissolution of their civil partnership.
Under the Civil Partnership Act 2004, which came into force on 5 December 2005, couples must wait at least a year to begin such proceedings. By the end of September 2006 more than 15,500 civil partnerships had been registered. This was far more than anticipated, so can we expect a flood of petitions seeking dissolution orders in respect of same-sex unions?Emma Ferdinand, project and policy manager within the Family Justice Division of Her Majesty's Courts Service, says: "Already we're starting to see an interest and enquiries to the courts and we expect that to increase as the year goes on."
Establishing the 'facts'
As the Civil Partnership Act was introduced to give same-sex couples the opportunity to enjoy the rights, responsibilities and benefits of those who enter into marriage, it is not surprising that the process of dissolution of a civil partnership mirrors that of divorce proceedings.
As with marriage, the court has to be satisfied that the partnership has irretrievably broken down. This can only be proved by establishing one of the following 'facts':
•behaviour such that one party cannot reasonably be expected to live with the other;
•the parties have lived apart for more than two years and agree to the dissolution of their partnership;
•the parties have lived apart for more than five years (in which case the other's consent to a dissolution is not required); or
•one party has been deserted by the other for more than two years.
These 'facts' are the same as those that feature in divorce proceedings, but without adultery, which is not to be found in the civil partnership legislation. However, it is widely expected that infidelity will be regarded as 'unreasonable behaviour' sufficient to bring about dissolution of the partnership.
The reality is that, until another year has passed, the only fact upon which any petition might be presented is 'unreasonable behaviour'. This requires the petitioning party to describe those aspects of the other party's behaviour that they find unreasonable. As with divorce proceedings, this represents a fault-based system; it is not possible to obtain a dissolution order simply because the contracting partners acknowledge their relationship to be at an end. The process by which a civil partnership is dissolved is likely to take between four and six months, assuming that the petition is undefended. Again, this is equivalent to the usual timetable in divorce proceedings, where the vast majority of cases are not opposed.
The financial orders available when a civil partnership is ended resemble those set out in the Matrimonial Causes Act 1973, which governs the divorce process. It means that the court can order all or any of the following:
•the payment of periodical payments (maintenance), whether to a party to the proceedings or for the benefit of any relevant child;
•the payment of a lump sum or sums to a civil partner or for the benefit of any relevant child;
•a property adjustment order (which can include a requirement that property be sold); or
•a pension-sharing order.
The legislation requires the court to approach financial issues on the basis that any financial interdependence between the parties is brought to an end as soon as possible, provided this can be achieved without causing undue hardship. This is equivalent to the 'clean break' in divorce proceedings, which has been a familiar feature of that landscape for many years.
The likelihood is that a court will take the view that assets accumulated during the course of the civil partnership should be divided equally regardless of which partner generated that fund.
A new development
There is a potential source of problems here, because it has only been possible to enter into a civil partnership for a little more than 12 months. There may well be cases that involve couples who had lived together in a settled relationship for many years when a civil partnership was not an option. It may suit one of the parties to contend that assets acquired prior to the couple entering the civil partnership ought to be disregarded entirely or be discounted to an extent.
However, the legislation requires the court to take into account "all the circumstances of the case" when addressing the financial aspects of the proceedings. Plainly there is an argument that one of the 'circumstances' is that it was simply not possible to enter into a civil partnership before December 2005.
The other factors that the court must regard when addressing financial issues are:
•the income, earning capacity, property and other financial resources that either partner has or is likely to have in the foreseeable future;
•the financial needs, obligations and responsibilities that each partner has or is likely to have in the foreseeable future;
•the standard of living enjoyed before the breakdown of the civil partnership;
•the age of each party and the duration of their civil partnership;
•a physical or mental disability of either party;
•the contributions that each of the partners has made to the welfare of the family or is likely to make in the foreseeable future;
•the conduct of each civil partner, but only if such that it would be inequitable for it to be disregarded; and
•the value to either party of any benefit (such as a pension) which that partner will lose a chance of acquiring because of the dissolution of their partnership.
Again, the language of this section of the Civil Partnership Act 2004 follows that of the equivalent legislation in the Matrimonial Causes Act that governs divorce proceedings. The likelihood is that the interpretation of these criteria will mirror the manner in which they are treated in divorce proceedings.
However, it remains to be seen to what extent there is room for argument that case law arising over the past 30 years or so in relation to heterosexual divorce should not apply to dissolution proceedings in respect of civil partnerships or should be approached with caution.
The Civil Partnership Act 2004 contains many references to children. These will include children of either partner from a previous heterosexual relationship or those adopted by the couple or born as a result of IVF donor treatment.
The resolution of issues regarding these children may prove problematic. This is perhaps only to be expected given that issues concerning children are often among the most difficult to resolve when a conventional marriage breaks down. However, there may well be a particular nuance in those dissolution proceedings where the child is not the child of both civil partners.
Just as it is possible for people intending to enter a heterosexual marriage to draw up a premarital agreement, so those embarking on a civil partnership have the option of a pre-partnership agreement. There is evidence that increasing numbers are being drawn up in an effort to limit the room for argument should the relationship break down. While not binding to a district judge, there is an increasing tendency for such agreements to be of persuasive influence in divorce proceedings.
There is every reason to suppose that this climate will prevail in relation to the breakdown of civil partnerships.
Diane Benussi is a partner at Benussi & Co