1.Civil partnership and marriage
A Civil partnership gives couples many of the same legal rights as marriage throughout the UK
- tax, including inheritance tax;
- employment benefits;
- state and occupational pension benefits;
- income related benefits, tax credits and child support;
- duty to provide reasonable maintenance for your civil partner and any children of the family;
- ability to apply for parental responsibility for your civil partner’s child;
- inheritance of a tenancy agreement;
- recognition under intestacy rules;
- access to fatal accidents compensation;
- protection from domestic violence; and
- recognition for immigration and nationality purposes
The differences are in name, status and procedures:
A civil partnership is registered when the second civil partner signs the relevant document, a civil marriage is registered when the couple exchange spoken words.
- Opposite-sex couples can opt for a religious or civil marriage ceremony as they choose, whereas civil partnership is an exclusively civil procedure.
- Although the process for dissolving a civil partnership is similar to a divorce, adultery can be grounds for divorce but the only equivalent ground for the dissolution of a civil partnership is unreasonable behaviour.
- The Human Fertilisation and Embryology Act has clarified the legal position of civil partners as parents. From 6 April 2009, if a child is conceived within a civil partnership, both partners can be registered jointly as the child’s legal parents, in the same way as in a marriage.
For more information on differences between marriage and civil partnerships visit: https://www.gov.uk/government/publications/comparison-of-civil-partnership-and-marriage-for-same-sex-couples
2. England, Scotland and Wales
In addition, in Britain, civil partners are treated in the same way as married people in adoption legislation.
Also, since 5 December 2011, churches in England and Wales can legally conduct civil partnerships, although very few do.
Moves to bring about marriage equality are therefore about status and the recognition that same sex relationships are as valid as heterosexual ones. For campaigners, it is part of the effort to eradicate all sources of inequality and discrimination against LGBTs in society. Some also see it as a move to normalise gay people and push them into more traditional roles.
Same sex marriage will be introduced in Scotland in 2015, and most likely in the same year in England and Wales.
3. Northern Ireland
Here, civil partnership gives the same rights as in Britain, except in adoption.
As a married couple, you can adopt jointly. If you are not married and not in a civil partnership, you can adopt as a single person (not jointly even if you are in a couple). If you are in a civil partnership, you are not allowed to adopt at all.
If you think you may want to adopt a child in the future, you should not enter into a civil partnership. This would apply if you wanted to adopt a child through an adoption agency or if you were considering adopting the child of a relative who has died for example.
This inequality is the subject of a current judicial review in Belfast High Court. The judge has not given his decision yet, and the legal process is likely to be lengthy.
Marriage equality would eradicate this important difference. However, the current moves to bring about same-sex marriage in Britain do not apply to Northern Ireland. This is why the debates happening in council chambers are important, as they allow us, and the political parties, to gage the political will to bring the issue to Stormont.
4. Republic of Ireland
In the Republic of Ireland, there are 160 legal differences between civil partnerships and marriage, which can be broken down into seven categories:
- family home
- legal procedures
- parent and child
These are explained in Missing Pieces, a report by Marriage Equality:
5. More information
Legal Information from Sinead Larkin Solicitor
Lord Alderdice speaking in the House of Lords in 2004 said the most fundamental right of all “is the right to have a close, confiding, lasting intimate relationship. Without same, no place, money, property or ambition amounts to any value. Life is about relationships or it is about nothing at all. It seems to me to be a fundamental human right to be able to choose the person with whom you wish to spend your life”
In December 2012 same sex couples will celebrate 7 years of the Civil Partnership Act. This single piece of legislation represents a watershed in the legal rights and obligations of same sex couples.
Some might argue that since the Civil Partnership Act same sex couples have been emboldened and we now have same sex couples which have evolved into families. Children are feature of same sex partnerships and with that comes an obligation to be aware of the law that applies to families.
It is a sad fact of 21st Century society that relationships breakdown, people separate and children end up travelling between two households. The spectre of domestic violence looms as large in same sex relationships as it does in heterosexual ones although reporting levels within the same sex community seems to be lower than that of reporting levels applicable to heterosexual relationships.
The following is a brief guide to the most notable pieces of Legislation in the practice of Family Law as they apply to you.
The Civil Partnership Act 2004
The Civil Partnership Act gives same sex couples the ability to obtain legal recognition for their relationship. It is the legal equivalent and parallel to civil marriage. It can only be terminated on death, by dissolution or annulment.
WHO CAN BECOME CIVIL PARTNERS?
- You must be of the same sex.
- You must not already be a civil partner or already married.
- You must not be under 16 years old (consent of an appropriate adult must be given).
- You must not be within the prohibited degrees of relationships.
HOW DO I GET A CIVIL PARTNERSHIP?
- You must give 14 days notice to your local Registrar.
- Registration involves the proposed parties to the partnership signing the Civil Partnership Schedule in the presence of 2 witnesses and the Registrar.
- Please note the ceremony can not be in religious premises and must not be religious in nature.
- The event can take place at the local Registration Office or other approved venues.
WHAT ARE THE EFFECTS OF A CIVIL PARTNERSHIP?
- Children – a civil partner will become the step parent of her civil partner’s child(ren).
- In Laws – when you become a civil partner you acquire in laws and the traditional family relationships such as” mother in law” will apply.
- Next of Kin – civil partners will be regarded as next of kin.
- State Benefits – civil partners are treated the same way as married couples for the purpose of Social security Agency Benefits, Tax Credits, and Child Benefit.
- Tax – Same sex couples are treated in the same way as married couples. Thus, Capital Gains Tax and Inheritance Tax applies when a civil partner dies. If you have a property portfolio it is advisable to engage in tax planning and to seek legal advice.
- Pensions – The surviving civil partner is entitled to the survivor benefits of the deceased civil partners work & personal pension scheme. As regards State Pensions, civil partners enjoy most of the benefits as that of married couples.
- Death of your civil partner – As soon as you enter a civil partnership any pre-existing Will will automatically be revoked unless your Will contains express terms prohibiting revocation. You will benefit from the entitlements pursuant to the Laws of Intestacy should your partner die without a will and should your partner fail to make provision for you or your child in their Will you will be able to bring proceedings pursuant to the Provision for Family And Dependants (NI) Order.
HOW DO I END A CIVIL PARTNERSHIP?
There are 4 grounds on which a civil partnership can be terminated:
- Dissolution Order (Granted by the Court)
- Nullity Order (Granted by the Court)
- Presumption of Death Order (Granted by the Court)
WHAT ARE THE GROUNDS FOR DISSOLUTION OF A CIVIL PARTNERSHIP?
- Unreasonable behaviour
- Two years separation of the parties with each party consenting to the dissolution
- Five years separation of the parties with the consent of the other party
- Desertion of one party by the other for a period of two years
HOW ARE THE ASSETS OF THE CIVIL PARTNERSHIP RESOLVED?
The law states that the parties to a civil partnership have the same entitlement to access to all of the provisions of “ancillary relief” legislation as applicable to married couples seeking to divorce or judicially separate. Most notable among these financial provisions are:
- Provision for the payment of child maintenance
- Maintenance pending suit
- Property adjustment orders
- Pension sharing/splitting orders
- Enforcement orders
- Clean break agreements
It should also be noted that the body of case law applicable in family law matters is similarly applied to civil partnerships and the dissolution of same.
The Children (NI) Order 1995
The Children (NI) Order 1995 is the central piece of legislation which, in the absence of agreement between the parties, regulated the rights of the child to have contact with the non resident parent (for parent read step parent or any person having Parental Responsibility for that child) and can assist in the determination of where & with whom the child will reside pursuant to a Residence Order application.
In addition to addressing issues of Contact and Residence the Children Order also provides for the following private law applications to Family Proceedings Court closest to where the child resides or is habitually resident:
Specific Issue Order – if a matter arises in respect of a child upon which the parents of that child can not agree, for example changing the child’s name, the school which the child will attend etc. the parties may bring an application before the Court to have the specific issue determined.
Prohibited Steps Order – if a parent anticipates or is aware of an act in respect of a child which the parent does not consent to for example the removal of the child from the jurisdiction the parent may issue an application to prohibit any step being taken in respect of that child which would alter the rights of the child or the person taking the application, until the Court can determine the issue.
Parental Responsibility Order – a civil partner is a step parent and therefore entitled to acquire parental responsibility for her partner’s child.
Shared Residence Order – a civil partner is entitled to apply for a Shared Residence order in the event of the breakdown of the partner’s relationship. This is another means by which Parental Responsibility can be acquired.
Contact Order in Non Civil Partnership cases – If you have not entered into a civil partnership but you live with your partner and there is a child living within your relationship you may be able to apply for a Contact Order in the event of the breakdown of your relationship.
The Children (NI) Order 1995 also governs Public Law cases as applicable to children. Should applications relate to children at risk from various forms of physical or emotional abuse or neglect and involve the Local Authority/Trust taking an application for one of two main Orders:
- Care Order
- Supervision Order
This element of the Children Order applies to children living in any home or subject to any form of relationship including same sex relationships. Legal advice is always recommended should the Trust become involved with any child living within your household
The Civil Partnership Act amends the Children Order in Dissolution of Civil Partnership applications before the Court and the Court must consider whether there are any children for whom the Court should exercise its powers under the Children (NI) Order 1995.
The body of case law in relation to Children Order cases as applicable to same sex relationships is ever evolving and if you are in doubt of your rights as regards a child who lives within your home you should seek legal advise.
The Family Homes and Domestic Violence (NI) Order 1998
The Family Homes and Domestic Violence (NI) Order 1998 regulates the occupation of the Family Home and also provides protection to those who are the subject of Domestic Violence within various relationships, those relationships being specified in the legislation.
The two main Orders which the Court can grant pursuant to this Order are:
- Non Molestation Order
- Occupation Order.
Non Molestation Order – This Order, when granted, prevents the person against whom it is granted from threatening harassing or intimidating, or having a third party do so on her behalf, the person in whose favour the Order has been made.
Occupation Order – This Order, when granted, regulates who can reside in the family home. The Court may upon application to it, direct that one person be removed from the family home and be prohibited from re-entering the family home so as to provide the person remaining in the family home with peaceful use and enjoyment of the property. The basis for exclusion from the family home would be so that the occupant is protected from the person excluded. It would be normal in such cases to also seek the protection of a Non Molestation Order.
The Civil Partnership Act altered the Family Homes and Domestic Violence Order to provide that Civil Partner can apply for the above Orders.
The Family Homes and Domestic Violence Order would in any event provide protections to same sex couples provided they meet the criteria set out in the Order which is not gender specific. If you have been the subject of domestic abuse you should seek legal advice.
You should note that even if you do not meet the criteria to apply for a Non Molestation Order that you may be entitled to seek the protection of the Court pursuant to the Harassment (NI) Order 1997. If you have been the subject of two of more incidences of physical or verbal abuse or harassment you can seek an Injunction from the County Court which will provide you with protection.
You may be entitled to legal aid depending on your financial circumstances. If you are in receipt of certain State Benefits for example, Job Seekers Allowance, Income Support or Employment Support Allowance or if your income is below a certain level you will be entitled to free legal aid.
If you are employed you should not hesitate to ask if you may be entitled to legal aid as each case is assessed based on you income and certain outgoings will be taken into account.
Should you require confidential advice or assistance on any of the matters set out above or any other area of Family Law please contact:
Family Law Partner
Larkin O’Connor Cassidy Solicitors
2 Carlisle Circus
TEL: 028 90 992454
FAX: 028 90 992455