Civil Partnership and Same Sex Marriage

By Kelly Willmott

In a recent and well publicised case, the Supreme Court confirmed that the Civil Partnership Act 2004 is incompatible with the European Convention of Human Rights because civil partnerships are only available to those in same sex relationships.

Whilst this Judgment does not oblige the Government to change the law, they are now looking to take action to rectify this inequality and extend the right to enter into a civil partnership to heterosexual couples.

With both civil partnerships and marriages already available to those in a same sex relationship, a common question for those wanting to take ‘the next step’ is, “what’s the difference?”

Civil partnerships offer couples the same legal treatment as married couples on inheritance, tax, pensions, life assurance, child maintenance and other areas. The court is also directed by statute to consider identical factors for both marriage and civil partnerships upon a relationship breakdown.

The legal status is, therefore, almost identical. There are some small differences in how a civil partnership and marriage can be brought to an end, however, and although the actual procedure is the same, the facts that can be relied upon to end the relationship to differ slightly.

For example, it is not currently possible to dissolve a civil partnership on the basis of adultery. The rationale behind this lies in the fact that the definition of ‘adultery’ requires sexual intercourse with someone of the opposite sex outside of marriage. It would, however, be possible to rely upon the adultery as an example of unreasonable behaviour. Presumably this will need to be addressed if the Government do take action in light of the Supreme Court’s recent Judgment.

With very few legal differences between marriage and civil partnerships, another question often asked is, “which is best for us?”

This will solely depend upon personal preference. One of the main reasons that a same sex couple may opt for a marriage is the desire for recognition that a same sex marriage is equal to a heterosexual marriage. Unfortunately, the widespread recognition that same sex relationships are equal, is unlikely to be affected by law. This will undoubtedly require a change in societal attitudes; a much trickier task.

Another factor that will influence a couple is that of religion. A marriage ceremony requires a number of formalities, such as Banns being read. A civil partnership, on the other hand, merely requires signatures on a document. The religious aspect of a marriage can be both an incentive for those who have religious beliefs, and off putting for those who do not. Despite the fact that a marriage does not have to be a religious affair, it is for this reason that many people in heterosexual couples would, if the Government take action and they are given the choice, prefer to enter into a civil partnership.

For those already in a civil partnership who are now considering conversion to marriage, this can be done by signing a ‘conversion into marriage’ declaration before a registrar either at the local registry office or at a ceremony held at a registered venue. A marriage certificate will then be provided which shows that the marriage will be treated as existing from the date of the original civil partnership.

For specialist legal advice please call DFA Law on 01604 609560 and we will be happy to help.