Will you not marry me?

12th November ‘18

Mixed-sex couples in England and Wales will soon be able to choose between having a civil partnership or marriage, but what is the difference and why would you pick a civil partnership over marriage?

The principal differences are:

  • Civil partners cannot call themselves married for legal purposes;
  • Civil partnerships are registered by signing the civil partnership document with no requirement to have a ceremony or any spoken words;
  • Details of the civil partnership are recorded in an electric register, rather than the paper-based system;
  • The civil partnership certificates gives the names of both parents of the parties, rather than just the parties’ fathers;
  • Civil partnerships cannot be annulled by one party if the other was suffering from a venereal disease at the time of the marriage;
  • Civil partnerships are ended by dissolution, rather than divorce. A civil partnership cannot be dissolved because one party has committed adultery;
  • Civil Partnerships can be converted in to marriages, but marriages cannot be converted into civil partnerships;

In reality the differences are not that great from a practical perspective, but some feel that marriage has historical, religious and gendered connotations that they simply do not associate or agree with.

Whilst the Court’s powers to make financial orders when marriages and civil partnerships break down are governed by different legal regimes, the law is effectively exactly the same. The decision-making process applied by the Court in the dissolution of a civil partnership is therefore the same as divorce and as such the outcome should also be the same.

It is important therefore that those opting for a civil partnership understand that the mere fact that they are not entering into a marriage does not limit their partner’s financial claims in any way. For civil partnerships, the Court is still able to make the full range of financial orders that are available to them on divorce between a married couple including:

  • Lump sum orders
  • Property adjustment/sale orders
  • Spousal maintenance; and
  • Pension Sharing orders.

The Court is not just limited to redistributing assets and wealth generated during the civil partnership and can also transfer or share property and assets acquired prior to the partnership or gifts and inheritances received by one of the parties if required to meet the other’s needs.

The only way to protect these assets is to enter into a Pre or Post- Civil Partnership Agreement to specifically record what claims they will each have against the other’s assets and what, if any, financial provision is to be made in the event of a separation. These agreements are the same as Pre and Post-Nuptial Agreements entered into by married couples.

The law applicable to these agreements is the same for both marriage and civil partnerships and provided that the agreement has been freely entered into with a full appreciation of its implications, and provided that the agreement is considered to be fair then it should be upheld by the Court.

So, whether you are planning or have already had a traditional marriage or civil partnership it is important to understand the financial implications of both and to ensure that pre-acquired wealth, gifts and inheritances are protected in the event of the breakdown of the relationship.

If you would like to discuss whether a Pre or Post-Civil Partnership Agreement could protect you, please contact Naheed Taj on [email protected]

This paper is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.

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