Yorkshire Evening Post Business Supplement Professional Services feature

13 October 2004

NEW legislation which may come into force by the end of this year reflects the changing nature of 21st century relationships.

If it becomes law, the Civil Partnership Bill will give gay and lesbian couples many of the same rights as married people and will provide recognition for them in society.

In order to formalise their relationship in this way, same sex couples who agree a `civil partnership‘ will sign a document in the presence of each other, a Civil Partnership Registrar and two witnesses. The Bill does not stipulate that they must be living together.

If the relationship between a couple who have entered into a civil partnership breaks down, either of them would be able to apply to a court for any of the financial orders presently available only to a man and woman who are getting divorced. For instance, it is possible that one gay man or woman could end up paying maintenance to the other and that one gay person's pension could be shared with the other.

Couples should research and consider these potentially significant financial consequences before entering an agreement. One clear benefit is that if inheritance tax is payable when one partner dies, there would be a 40 per cent tax saving.

Following an amendment to the Bill earlier this month, gay couples would also benefit from the same public-sector pension rights as heterosexuals, so that upon the death of one of them, the survivor would be treated in the same way as other widows and widowers.
The partnership will be able to end only through death, dissolution or annulment. Irretrievable breakdown will be the sole ground for a court to grant a dissolution order although it will also be able to deal with orders for nullity, presumption of death or separation.

Couples will have to wait 12 months after the registration of their partnership before they can apply for dissolution in the same way as married couples must wait a year after marriage before they can start divorce proceedings.

The facts to prove irretrievable breakdown will largely be the same as those to be proved on divorce namely unreasonable behaviour, two years separation with the other party’s consent, five years separation and two years desertion.

However, there is no option in the Civil Partnership Bill for one party to allege that the other has committed adultery. The legal definition of adultery does not apply to same sex couples. Instead, such an allegation will form part of an unreasonable behaviour petition.

At the recent House of Lords report stage, the proposed legislation was extended beyond the original scope of same sex couples. This will allow family members who have lived together for more than 12 years to register their partnership. Two siblings could do so, as could a parent and child and even a grandparent and grandchild and the same inheritance tax advantages would apply.
However, the Bill also highlights the plight and misunderstood status of men and women who choose to live together rather than marry – a significant proportion of modern society. Contrary to popular belief, there is no such thing as a common law husband or wife. Nor is there any point at which living together will enable one cohabitant to, for example, receive either maintenance from the other or an interest in the other's pension.

This means that, if the Civil Partnership Bill becomes law, same sex couples – or even members of the same family - entering into such an agreement will have greater rights and legal recognition than heterosexual cohabiting couples who may have been together for many years.

Obviously heterosexual couples have the option to marry. If the Civil Partnership Bill becomes law, they may come to recognise themselves as the poor relations of modern relationships and review their situation.

Ends

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