The Civil Partnership Act 2004
The Civil Partnership Act came into force on the 5 December 2005. Since that date, same sex couples can elect to go through a procedure for the signing of a civil partnership document, registering them as partners with the same validity as marriage, including entitlement to apply for financial provision if the relationship breaks down. If both agree, those within a civil partnership have been entitled to convert the legal relationship to marriage since 10th December 2014
There are four different procedures for registering a Civil Partnership depending on the position of the couple:
standard procedurehousebound persons proceduredetained persons procedurespecial procedure (where one person is terminally ill)
This summary deals only with the standard procedure.
Each party must give notice to any registration authority of their wish to register their partnership, by completing a form. They must then wait fifteen days, during which the notice is publicised, and any person may object to a proposed civil partnership by giving notice to that effect. The objection will be investigated and either dismissed or upheld.
As soon as the waiting period is over, the Registrar, at the request of one or both of the parties, will issue a Civil Partnership Schedule. Thereafter, the proposed civil partners have twelve months from the day the original notice was recorded, to sign the Civil Partnership Schedule. Once signed, a civil partnership is formed.
If the parties do not register within the twelve month period, the Civil Partnership Schedule becomes void and cannot be used.
Registration is modelled on civil marriage. The main differences are that:-
there is no provision for religious registration.there is no prescribed ceremony (although regulations may be introduced to provide for an appropriate form of words, & individual registrars may choose to adopt a presentation similar to marriage ).there is no offence corresponding to bigamy, although it is an offence to give false information on the notice.
There are provisions for disolution corresponding to divorce. The only ground for disolution is irretrievable breakdown of the civil partnership, which has to be shown by one of four facts, namely:-
behaviour.two years separation and consent.five years separation.desertion.
There is no fact of adultery, though sexual behaviour with a third party could form the basis of a behaviour petition.
The partnership cannot be dissolved within the first year after registration.
Either party can apply for a Separation Order (similar to judicial separation) at any time after registration, based on one of the four facts referred to above. The provision for void and voidable partnerships is similar to those that relate to marriage.
The act will give registered couples the following rights:-
eligibility for bereavement benefits.the same state pension benefits as married couples.the ability to pass on survivors benefits of occupational pensions.recognition of the partnership under the inheritance and the intestacy rules (which apply in the absence of a Will).access to fatal accidents compensation.the obligation to support each other and children of the family financially. the court would have the power to make property and maintenance orders, just as they do in divorce proceedings.obligation to pay child support in the same way as married partners.protection from domestic violence.recognition of the relationship for immigration and nationality purposes.
There will be tax implications-
After registration the provisions relating to married couples will also relate to civil partners. For example:-
Capital Gains Tax.
Civil partners will be able to transfer assets between them on a no-gains-no-loss basis.
Same sex partners who each own property can independently elect which property is to be treated as a principal residence, with the result that both houses can be sold for a profit without Capital Gains Tax being paid. After registration, the right to double tax relief is lost.
After registration, if one partner wishes to enter into a transaction with the relative of the other, they will be deemed to be “connected parties” with implications for CGT and stamp duty land tax.
If someone in the same sex relationship is planning to set up a trust with their partner as beneficiary, they should do so before the act comes into force, because it is likely that there would be adverse tax if the civil partner is a beneficiary.
Gifts to surviving civil partners will be exempt from inheritance tax; therefore the net estate for the surviving partner could be substantially different, depending on whether or not the couple have registered as civil partners.
Some partners may have children or other relatives they want to provide for, and the “nil rate band” could be used to minimise the inheritance tax liability.
Cash gifts made on actual registration (currently £5,000 from parents, £2,500 from grandparents and £1,000 from others) will be exempt from inheritance tax as gifts in consideration of a civil partnership.
Although the married couples allowance is being phased out, it is likely that older civil partners will be able to benefit.
Registration will automatically revoke an existing Will made in the United Kingdom. It is therefore important that a new Will is made as soon as possible after registration.
Those planning to register may wish to enter into a Pre-Registration Agreement (similar to a Pre-Nuptial Agreement) in order to preserve their respective financial independence. Although Pre-Nuptial Agreements are not enforceable in English Law, Courts have recently been willing to uphold or be strongly guided by them. It is likely that the trend will continue.