Same-sex couples in most of the UK have two options if they want to make a legal commitment to one another – civil partnership or marriage. Civil partnerships were introduced in 2004 when same-sex marriage was limited to opposite sex couples. Over a decade later, gay couples in the UK (excluding Northern Ireland) can marry as well as enter into a civil partnership.
What’s the difference? How is a marriage different to a civil partnership? Do married couples have more rights? What about divorce? We sought out a top lawyer to help answer these questions and more.
Andrew Smith, Associate Solicitor for Blacks Solicitors’ Family Law team, specialises in LGBT legal work. Here, he answers your questions on both civil partnerships and same-sex marriages, including legal differences, pre-nuptial agreements and pension entitlements:
What are the legal differences between a civil partnership and a marriage?
“There are very few ‘legal’ differences between a civil partnership and a same sex marriage. Civil partners cannot refer to themselves as ‘married’ and it is a different ceremony. On a certificate of civil partnership both parents are named rather than just the father on a marriage certificate; but there is legally little difference between the two.”
But there must be some differences?
“The main differences are similar to those between a religious marriage and a civil ceremony undertaken by heterosexual couples; in regard to the formation, the ceremony, the administrative process and the certificates.
“Somewhat controversially, one of the main differences is that civil partners are unable to cite the specific act of Adultery as the main reason for why the civil partnership has broken down. This is because the definition of adultery is sexual intercourse with someone of the opposite sex outside marriage. Instead, civil partners have to use ‘unfaithfulness’ as one of a number of examples of Unreasonable Behaviour.”
How easy is it to convert a civil partnership to a marriage?
“Quite easy. Civil partners intending to marry will need to sign a ‘conversion into marriage’ declaration and then convert the civil partnership into a marriage at a registry office; a local registration office; or a religious or approved office where same sex marriages are allowed.
Are those in a same sex marriage or civil partnership entitled to a spouse’s pension?
“Up until very recently this had been a grey area for those who retired prior to when the act was introduced.
“The Walker v Innospec  case which recently made the headlines challenged this and saw the Supreme Court unanimously allow Mr Walker’s appeal for his employer to pay his pension to his spouse in the event of his death, despite his service predating December 2005.
“This fantastic result will pave the way for all same sex couples in a similar situation, who are either married or in a civil partnership, to be able to leave their pension to their spouse.”
Can those in a civil partnership get divorced?
“A married couple will have a ‘divorce’ whilst civil partners will have a ‘dissolution’ if they choose to separate. Therefore the answer is technically yes as although the terminology is different, it does mean the same thing in principle.”
What financial relief is someone in a same-sex marriage or civil partnership entitled to following a breakup?
“The financial relief available to separating couples is the same due to Schedule 5 of the Civil Partnership Act 2004. Same sex married couples will be subject to the same legislation as heterosexual married couples, rather than through the Civil Partnership Act. The rulings are a little different but the criteria applying the law and the discretion of the judiciary is exactly the same.”
Does a pre-nuptial agreement work the same for both a same-sex marriage and a civil partnership?
“Yes. Pre-nuptial agreements are still not automatically binding in marriages (either heterosexual or same sex) or civil partnerships. The law regarding pre-nuptial agreements is laid down by case law and so each pre-nuptial agreement will be determined on a case-by-case basis depending on the pertinent facts.
“Pre-nuptial agreements are becoming more and more common and recent case law suggests that the judiciary will be more inclined to allow them to bind the parties. As the legislation regarding heterosexual marriages covers both civil partnerships and same sex marriages, it follows therefore that the courts will apply the same tests when making their decision.”
How are financial assets treated differently in a same-sex marriage to a civil partnership?
“Overall, financial assets are treated the same way in a same-sex marriage as they are in a civil partnership. Section 25 of the Matrimonial Causes Act 1973 provides the criteria the judges will use when deciding on financial assets in both a same sex marriage and civil partnership.
“This highlights there is very little difference in the law concerning civil partnerships and same sex marriages.”
What’s the future looking like for civil partnerships?
“Since the introduction of marriage for same sex couples in 2014, the Office for National Statistics1 (ONS) has revealed that the numbers of civil partnerships have been falling. In 2013 just before the introduction of marriage, there were 6,276 civil partnerships, yet in 2015 there were just 1,014.
“In contrast, between March 2014 and June 2015, there were 7,366 marriages formed between same sex couples in England and Wales and between December 2014 and June 2016 there were 7,732 civil partnerships converted into marriages. It’s looking like the majority of same sex couples are preferring to enter a marriage instead of a civil partnership and this trend is likely to continue.”
Does this mean civil partnerships will eventually be abolished?
“In 2014 the coalition government produced a consultation paper to review civil partnerships and within this questions were asked whether they should be abolished completely or opened up to opposite sex couples. As the majority of these responses were negative the government at the time decided to do nothing.
“The position at the moment is ‘as you were’ and is unlikely to change until at least the judgement in the appeal case for the recent challenge on civil partnerships for opposite sex couples, or there has been time to review the impact of same sex marriage.”