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Advising clients about the Civil Partnership Act

Bridget Garrood considers how the practitioner should handle the inevitable questions about the new Act.

Bridget Garrood, Partner - Family Law Department, Cartridges, Exeter

Following the passing of the Civil Partnership Act 2004 (the Act), many people in committed same-sex relationships are now wondering whether or not it will be in their interests to register as civil partners. Commencement has now been announced for 5th December 2005 which means in practical terms that the first civil partnership registrations under the standard procedure set out in ss 8-17 may take place on 20th December i.e. 15 days later. This article is intended to assist the family lawyer to anticipate some of the preliminary enquiries, which may be received in the lead-up to commencement. It is not intended as a comprehensive guide but simply to alert practitioners to some of the issues that they will need to consider at this early stage in this novel area of family law.

Many same-sex couples will have been living together for several years or even decades. Others may have been arranging matters between themselves in separate households, so it will be important to look closely at their individual circumstances, perhaps in consultation with private client department colleagues, for specialist tax or wills and succession advice. Unlike many heterosexual cohabiting couples, same-sex couples tend to be more aware of their lack of legal status in relation to each other and therefore may have already taken legal advice. Accordingly they are more likely to have made wills or deeds of trust in respect of their interests in jointly owned property. It should be borne in mind, however, that they are not yet likely to have arranged their personal and legal affairs in anticipation of the new Act. That they now have the opportunity to do so is a welcome step forward and presents a rare opportunity for family lawyers to advise clients who are not in any current dispute but simply considering the potential change in the legal status of their relationship. Whilst entirely new, the Civil Partnership Act aims largely to mirror existing matrimonial legislation and the concepts should therefore be sufficiently familiar to most experienced practitioners to fall within 'the comfort zone' of their existing expertise.

There will however be a need to become familiar with the new language and terminology of civil partnership law under the new Act. It is possible, for example, to enter into a "civil partnership agreement" under s.73 of the Act. Confusingly, such an agreement, preliminary to a registered civil partnership, is not the equivalent of a pre-nuptial-type agreement. It is instead an agreement to enter into a civil partnership with another person of the same sex and is more akin to an engagement to marry. Although such an agreement does not, under the law of England and Wales, have effect as a contract that in itself will give rise to legal rights, it does give rise to many of the same limited but enforceable enhanced rights as those of fiancées in relation to certain property.

Under s.74 there is reference to the property provisions which will apply if a civil partnership agreement is terminated, including the provision under s.65 whereby a former party to such an agreement can claim in the same way as a formerly engaged party to have acquired a share in the other parties real or personal property after having made a substantial contribution in money or monies worth to the property during the period of the civil partnership agreement. In this way the Civil Partnership Act 2004 mirrors s.37 of the Matrimonial Proceedings and Property Act 1970. Similarly s.74(5) CPA 2004 mirrors s.3(1) of the Law Reform (Miscellaneous Provisions) Act 1970 regarding gifts of property by one party to the other during the period of a civil partnership agreement. If such a gift is made on the condition that it is to be returned if the agreement/engagement is terminated, it can be recovered after termination of the agreement.

Similarly, s.17 of the Married Women's Property Act 1882 concerning disputes between husband and wife as to title or possession of real or personal property is reflected in much plainer and more succinctly drafted terms at s.66 of the new Act. On such application the High Court or County Court may make such order with respect to the property as it thinks fit, including an order for sale. The provisions of s.17 MWPA 1882 and those of s.7 of the Matrimonial Causes (Property and Maintenance) Act 1958 are also available to formerly engaged couples and virtually identical powers are conferred on the court under s.66 and s.67 of the new Act to resolve disputes between former parties to a civil partnership agreement. In some circumstances this may prove useful as an alternative remedy or negotiating tool in respect of such things as furniture, gifts of money, possession of a home, ownership of civil partnership presents, since no parallel application is strictly necessary for such couples under the Trusts of Land and Appointment of Trustees Act 1996. It is however prescribed under s.74 (4) of the new Act that applications under s.66 and s.67 must be brought within 3 years of the termination of the civil partnership agreement.

The significance for practitioners at this stage lies in understanding the definition of a civil partnership agreement as set out in s.73 (3). This includes an agreement to register as civil partners or to enter into an overseas relationship as defined at s.212 (see below). It noteworthy that, whilst it is not yet possible to register as Civil Partners under the new Act, it would appear possible to enter in to a civil partnership agreement and, indeed, to terminate such an agreement already. In view of the implications for the disputes which may follow, family lawyers who are enthusiastic to advise at this stage may therefore need to brush up on their sometimes rusty knowledge of the rarely used legislation upon engagement and upon formation of the legal relationship of marriage rather than simply assume that it is their expertise upon its dissolution will be called for in due course.

Another matter which practitioners may usefully be able to attend to at this stage arises from the fact it will be necessary to advise couples awaiting the chance to register as civil partners that if they have previously been married they will need to prove that a divorce has been obtained by production of a decree absolute in the same way as though they were about to re-marry. Gay clients may not previously have bothered to obtain a divorce or may have given up trying to gain their former spouses co-operation or consent at an earlier and perhaps a more acrimonious stage in the breakdown of the marriage. If they intend to register as civil partners with their same sex partner, the divorce is something they can be getting on with already and it may of course be necessary to address financial and property issues which were previously neglected, even if only to obtain a clean break. If such a client is however receiving spousal maintenance at present then they must be advised that this will automatically terminate in the same way as would occur upon remarriage.

More problematic may be the advice to be given to a couple where one or both have been registered abroad in a same-sex relationship with another partner. Such a relationship will now be recognised under the new Act and will be a bar to registration of a civil partnership with a subsequent partner. Therefore the former relationship may need to be formally dissolved in the country in which it was created. It will not be possible to do so in this country prior to commencement of the new Act.

Legally recognised same-sex relationships created abroad might include marriage itself, which is already permitted for same-sex couples in, for example, Belgium and the Netherlands. Various other countries have registration schemes which are available to couples of the same sex but which fall short of legal marriage: for example, a German Lebenspartnerschaft (life partnership) or a French Pacte Civile de Solidarite (civil solidarity pact). These are just two of the specified overseas relationships listed in Schedule 20 to the Act. Since such relationships will be specifically recognised as civil partnerships for the purposes of s.212, those who will be eligible to register as civil partners, and are impatient to do so before commencement of the Act, might wish to consider entering into such a relationship abroad. This must be an overseas relationship as defined for the purposes of the new Act under s.212 as either one which is specified (i.e. listed in schedule 20) or which meets the general conditions referred to at s.214

Broadly speaking, in order to be recognised under s.214, the overseas relationship may have been formed, before or after the passing of the Act, by two people who are not already party to a relationship of that kind nor lawfully married. The relationship must be of indeterminate duration and its legal effect must be (in the country of registration) that the parties are either treated as a couple generally or for specified purposes, or treated as married. Whilst this gives rise to some interesting points of international family law (quite clearly it is not a simple matter of recognition as with marriage), it would appear that it is possible to enter into a suitable overseas relationship with a view to acquiring the full package of rights and responsibilities which shall subsist during a civil partnership and for surviving civil partners upon death or upon dissolution of the partnership in court. This may be of particular interest to couples where advanced age or a terminal illness may give rise to the wish to import all possible succession advantages under the new law, for example for inheritance tax purposes, on the date of commencement.

There are inevitably some potential negligence traps for the unwary family lawyer who may not have often advised clients before the event of their marriage as to the relative merits of acquiring the new status. There will be a clear need, for example, to inform couples that their existing wills will become void upon registration as civil partners. Such couples may then wish to give instructions for new wills to be made specifically in contemplation of registration as Civil Partners. They will also need to be advised of the court's powers to interfere with interests in property by means of property adjustment orders in the event of dissolution of the civil partnership. They may seek advice together about making a binding "pre-nuptial"-type of agreement, which will of course raise the uncertain issue of future enforceability. There will be potential or actual conflicts of interest inherent in offering such advice to a couple and there is likely to be a need for separate advice for each party to the potential civil partnership.

Some gay couples may decide it is not in their interests to register as civil partners. Nevertheless they should be warned that their legal rights and responsibilities may still be affected by the new law, and not always with a positive outcome. Hardest hit are likely to be cohabiting same-sex couples where one or both parties are claiming means-tested benefits such as income support, housing benefit or tax credits. Whether or not the couple register as civil partners, they will be treated under the new law as living together as if in a registered civil partnership (i.e. as husband and wife). Consequently for the first time they will be treated a living together as a couple in a single household for the purposes of assessing their entitlement. Their previous lack of legal status as a couple will have caused them to be assessed as two single people. This change is likely to reduce their benefit. It is feared in the gay community that this may act as an unwelcome disincentive for couples in low income households to be open about their relationship; ironically perhaps driving some couples people back into the closet or causing them to separate to different addresses.

As family lawyers we often bemoan the fact that we are not consulted at the point in a couple's relationship when it is possible to prevent some of the problems which may face them if it breaks down or one or other dies. The Civil Partnership Act 2004 presents an opportunity to advise couples prior to the formation of a civil partnership. We should be encouraging more people to take our advice upon considering a proposal of marriage, although this begs the question as to whether prospective civil partners can enter into anything equivalent to a pre-nuptial agreement. Such agreements are, of course, of uncertain legal validity. Given, however, that there is no provision in the Act for civil partners to exchange vows, or indeed any specific written or verbal commitment upon formation of the civil partnership, it is difficult to see how similar public policy grounds may be used by the Courts once faced with the cases which will undoubtedly be presented in due course.