Noble Harbour Solicitors

Noble Harbour Solicitors

Pre-Civil Partnership Agreement

The Civil Partnership Act 2004 will come into force on the 5th December 2005.

The Civil Partnership Act 2004 provides a framework for establishing a new concept of recognised relationship between same sex couples with most of the rights, responsibilities and other consequences of marriage.

Unlike their heterosexual counterparts, gay and lesbian couples have never experienced the same rights and obligations. For the first time, after campaigning and laws passed in other countries, the Civil Partnership Act will enable homosexuals and lesbians to have their relationships recognised.

It will enable same sex couples to register their union as a civil partnership. It will enable them to acquire legal and financial rights and protections as civil partners - almost all of the benefits heterosexual couples acquire under the traditional institution of marriage.

It affects finance, property and assets. Pensions and their entitlements are affected. Social security, tax credits and child support will change. Inheritance, tax and tax planning will also alter.

Civil partnerships are created by statute and have been created exclusively for homosexual and lesbian couples.

The civil partners although effectively enjoying the same benefits and advantages of married couples, they will also receive the same emotional and financial uncertainty and expense on the breakdown of their relationship and the dissolution of their civil partnership.

Registered civil partners may pay substantial amounts in lump sum payments and maintenance, just as heterosexual counterparts have done for many years.

Although pre civil partnership agreements or gay pre-nuptial agreements are unromantic, they do afford the opportunity the opportunity to potentially avoid contested, protracted and expensive court battles over civil partnership assets. Other jurisdictions in both Europe and America have recognised this problem and allowed couples to solve it by entering into such agreements. There is no reason why homosexual or lesbian relationship should not enter such agreements and be afforded the same protection, or intended protection as married couples.

Further Information

The Civil Partnership Act is to be introduced against the background of the European Court of Human Rights decision in Goodwin -v- United Kingdom (2004). The European Court doubted the validity of the prohibition against same sex marriage given the provisions of the Convention on Human Rights, in particular whereby men and women of marriageable age have the right to marry.

The Act is undoubtedly an enormous move forward for homosexual and lesbian couples in England and Wales. It is significant because it provides rights that never previously existed for them in respect of inheritance, pension and tax.

The advantages are heralded as representing significant moves to recognise rights and avoid discrimination. However, there is uncertainty as to what will occur on the dissolution of a civil partnership. Anyone contemplating entering into a civil partnership must be aware that they cannot seek dissolution of that relationship for a period of one year. It brings with it responsibilities, obligations and liabilities.

The drafting of the Civil Partnership Act effectively adopts the same principles as marriage but introduces new terms e.g. instead of marriage you have a civil partnership. At present it is envisaged the Courts will approach civil partnership dissolution in the same way as it approaches marriage breakdown. Under Schedule 5 of the Civil Partnership Act 2004 exactly the same principles apply as under the Matrimonial Causes Act 1973 (the Act which regulates divorce and financial matters for heterosexual couples).

Under Schedule 5 a partner may apply for financial relief. For these purposes your home and life savings may be classed as wealth. Your future earning potential may also be classed as wealth. No doubt everyone is familiar with situations were a formerly wealthy married partner who experiences a divorce has to sell of their home in order to pay the sum of money deemed appropriate by the court to pay to their ex partner. It is likely that the courts are going to treat homosexual and lesbian couples who separate from a civil partnership in exactly the same way that they will treat married couples who experience a divorce. Only time will tell what approach will be taken, which makes it imperative that you try and protect your position.

Although couples commence their relationship with the best of intentions and envisage their relationship will endue until death do them part, the divorce statistics are alarmingly high. Although there is an absence of statistics for homosexual and lesbian couples there does not appear to be information to suggest that they are more stable or enduring.

Regardless of expectations, a properly drafted pre-civil partnership agreement or gay prenuptial agreement can avoid a great deal of bitterness and expense on the breakdown a civil partnership.

A gay pre-nuptial agreement may help in the preservation of assets acquired prior to the civil partnership. It gives peace of mind, as both know that they will have addresses a sensitive issue and planned for the future. It is a significant attempt to create certainty and promote harmony.

There are no guarantees that a pre-civil partnership agreement or gay pre-nuptial agreement will be fully enforced or that a Court will fully uphold such an agreement. Without such an agreement the Courts will have little information to ascertain true intentions. It can therefore be considered as a pre requisite to prudent financial planning.

For further details please contact [email protected].

« back to living together