CIVIL PARTNERSHIPS
The media has been full of stories about many local gay couples, and celebrities such as Elton John and David Furnish, who raced to be one of the first in England and Wales to enter into a Civil Partnership on the 21 December. The Government anticipates that 22,000 same sex couples will enter into Civil Partnerships by 2010.
The Civil Partnership Act addresses many of the injustices that same sex couples faced because they were unable to secure legal recognition of their relationship.
For example Civil Partners rights and responsibilities will include:-
- A duty to provide reasonable maintenance for your Civil Partner and any children of the family (Civil Partners will be assessed in the same way as opposite sex couples under the Child Support Agency for child maintenance)
- Equitable treatment for the purposes of life assurance
- Same treatment as married spouses for tax purposes including taking advantage of Inheritance Tax exemptions
- Similar employment and pension benefits as married couples including being able to accrue survivor pensions and public service schemes and contracted – out pension schemes (personal pension plan schemes will come on line at a later date)
- The right to be treated as next of kin in hospitals
- Access to fatal accidents compensation
- Recognition for immigration and nationality purposes
- Protection from domestic violence
- Recognition under intestacy rules
However same sex couples also need to be aware that if their relationship turns sour then on any dissolution of that relationship they will be granted the same rights as opposite sex couples in resolving any financial disputes.
Couples who have entered into a Civil Partnership may have owned significant assets such as property and pensions in their own name which they had acquired prior to becoming, in the eyes of the law, a legal Partnership. Same sex couples need to be aware that if that relationship fails then they will have the right to make financial claims against each other for any assets owned by them both either solely or jointly.
For example, if one Partner has a significant pension provision and the other Partner has no pension then if the relationship did fail the Court would then be able to consider granting to the Partner with no pension right a share of the others pension.
The financial remedies available to the Court in resolving any financial dispute means that one partner may have to pay maintenance to the other and the Court will be able to order the fair division of other assets and property.
There has been a considerable change in divorce law over the last few years as a result of the ground breaking case of White – v – White and more and more cases are being resolved against the yard stick of equality and this has led to some wives and husbands walking away with significant divorce settlements even if the marriage has been quite short or where one party has pre-acquired assets they owned well before their marriage to their spouse.
As a result of this there has been a trend towards not only wealthy couples but couples with more modest assets, considering a Pre Nuptial Agreement to try and safeguard assets they have acquired prior to the marriage and to try and work out a financial settlement that could be implemented in the event of the relationship failing.
Pre Nuptial Agreements are growing in popularity and despite the fact that they are not legally binding on the Court, there have now been a number of cases where the Court have taken into account the terms of a Pre Nuptial Agreement - and certainly they are one factor the Court may take into account upon any dissolution of a relationship. This is particularly the case if there are perhaps no children of the marriage and both parties entered into a Pre Nuptial Agreement with the benefit of legal advice.
Same sex couples will, for the same reason as married couples, want to try where possible to protect their financial assets particularly if they are entering into a Civil Partnership later in life where they have already accrued significant assets in their sole names and they are concerned that these could be attacked by the Courts in the event the relationship failed.
A lot of people are put off by Pre Nuptial Agreements because they consider them to be ‘planning to fail’, but being realistic and having an open discussion about what would happen if the relationship failed is probably prudent financial planning and may save a lot of heartache further down the line. It is a known statistic that one in three marriages fail and there is no evidence as yet to suggest that Civil Partner relationships will be any more stable.
There is no doubt that the Civil Partnership Act is a ground breaking piece of social legislation and it is an extremely exciting opportunity for same sex couples to finally have their relationship legally recognised. There has been considerable debate as to why the legislation is not extended to heterosexual cohabitee’s who do not enjoy the same rights as married couples despite the wrong assumptions made by many cohabitee’s that they have some legal status known as ‘common law wife/husband’.
However it is understood that the Government’s thinking behind the new legislation was that opposite sex cohabitee’s do have the legal right to get married and obtain the same rights and responsibilities as married couples whilst until now same sex couples have not had that opportunity.
If you require more advice on Pre Nuptial Agreements please email Sally Pike or telephone 023 8033 4661 or email Tina Day or telephone 01329 825617.