The Civil Partnership Act came into force 2005 which allowed same sex couples to enter into a ‘Civil Partnership’ giving those couples similar rights to married couples. In December 2019, Civil Partnerships were extended to include mixed-sex couples. A Civil Partnership will only end on death, dissolution or an annulment.
Generally, unmarried cohabiting couples have no rights in Family Law in the event of relationship breakdown. For example a person living in a house which is in their partner’s name has no consequential rights over that property merely because of that relationship, regardless of how long they have lived together.
Many cohabiting couples are unaware of their legal position and some even think they possess similar rights to married couples, often due to the myth of the ‘Common Law Marriage’.
The Civil Partnership Act allows a couple to have their relationship publicly recognised.
This is defined in law as all the rights, duties and responsibilities that a parent has for his child. Essentially it gives you an equal say in the upbringing of your child. This is important if you are a father whose name was not entered onto the birth certificate when your child was born. If you marry or enter into a civil partnership with the mother of your child, you acquire Parental Responsibility for your children.
If you are married or in a civil partnership the court can take a flexible approach to property ownership to achieve a fair outcome. It does not matter if property is in your name or the name of your spouse/civil partner. The court will first consider whether an equal distribution of your combined assets is fair. It tests this by reference to a list of factors that is set out in law. This states that first priority is given to the welfare of children whilst minor. It also takes into account the length of the relationship, contributions, reasonable needs and other factors. Crucially, the court has flexibility to divide the assets up in a way that meets the needs of the children and each party in a fair and reasonable way. This protection of fairness is now extended to civil partners. It does not extend to cohabitants. It means that if you are unmarried and the house is in your cohabitant’s name the legal presumption is that you have no claim against it. If you have children this remains the case, even though you might be able to seek a property settlement order on behalf of minor children.
Under divorce/civil partnership law the assumption is that pension assets will be shared. If you are a cohabitant it is not legally possible for pension sharing orders to be made, sharing out pension assets. This can be very unfair where one party has given up a career to promote the welfare of the family, and relied on the other’s pension provision to provide for them in old age.
If you are married or in a civil partnership the financially weaker person can seek maintenance from the other until they are able to adjust to financial independence. This is on top of child maintenance. If you are unmarried and not in a civil partnership it is not possible to claim spousal maintenance.
If you are in a cohabiting relationship and contemplating a civil partnership you should bear in mind that it gives you a great deal of legal protection that you would not have if you were simply cohabiting. In relationships over time sacrifices are made for the good of the family and cohabitants do not have any guarantee that assets and income will be divided fairly in their case. If you enter into a civil partnership the court can take a flexible approach to property ownership, pensions and maintenance if the relationship breaks down to ensure that fairness is achieved. Campaigners for civil partnerships point to the flexibility it gives a couple to follow their own path unbound by societal expectations, and without necessarily incurring the huge cost of a wedding. Civil partnership gives you that flexibility and enables the court to make an order that considers the needs of both parties and children in the event the relationship breaks down.
It is important to emphasise that you and your partner can chose to regulate your own affairs with or without a marriage or civil ceremony. You can enter into a nuptial agreement agreeing how assets should be divided in the event of your death or relationship breakdown, or if you are planning to cohabit, you can enter into a cohabitation agreement or declaration of trust. When deciding what future model to follow we would recommend you take legal advice on where you stand legally so that you can make important decisions about your future in possession of all the facts.
If you are considering entering into a Civil Partnership or would just like to know how your property rights would be affected upon the breakdown of a relationship or on death, please contact a member of our Family Law team in Harpenden.