Civil Partnership advice
The Civil Partnership Act 2004, which came into force on 5th December 2005, created a new legal status to same sex couples. If you have entered into a civil partnership or contemplating becoming civil partners, here at AWD Law we are experienced in drafting pre-civil partnership agreements and advising on the dissolution of a civil partnership in the event of a breakdown.
Dissolving a partnership
A civil partnership like a marriage can be brought to an end by a court order or by the death of one of the partners. To dissolve a civil partnership is very similar to a divorce and the court may, on an application by either one of the parties, dissolve the matter. The only ground for dissolution is that the civil partnership has broken down irretrievably. In order to establish irretrievable breakdown, the civil partner applying for dissolution (the applicant) must satisfy the court of one or more of the following facts:
- Behaviour: that your civil partner (respondent) has behaved in such a way that you (applicant) cannot reasonably be expected to live with the respondent.
- Separation for 2 years and the parties both agree to dissolution of the partnership.
- Separation for 5 years.
- Desertion of the applicant by the respondent for 2 years or more.
Neither party can apply to dissolve the partnership until at least one year after the partnership was formed. The court will need to be satisfied that one of the four facts as set out above has been established and that the civil partnership has broken down irretrievably.
A Petition can be completed and filed with any Civil Partnership Proceeding County Court or with the Principal Registry in London. A Statement of Arrangements for Children is also filed with the court along with the petition if there are children involved. The original Civil Partnership Certificate is required and the issue fee, which is currently £340. Just like a divorce, the dissolution is also a two stage process. If the court is satisfied with the grounds for the dissolution, the court will grant a Conditional Order and the applicant can later apply for a Final Order six weeks and one day after the pronouncement of the Conditional Order.
Property and Finances
Just like married couples, civil partners can obtain from the court the same range of financial orders. These will include property adjustment orders, i.e. the transfer or sale of a property, the payment of lump sums, periodical payments and pension sharing orders. Civil partners can also obtain interim maintenance whilst financial proceedings are pending. As with divorce, the court will consider a checklist of relevant factors such as:
- The parties income and earning capacity and other financial resources likely to be available in the future.
- The standard of living enjoyed by the family prior to the breakdown of the relationship.
- The financial needs obligations and responsibilities which each civil partner has or is likely to have in the foreseeable future.
- The age of the civil partners, duration of the civil partnership and contributions that each of the civil partners have made or is likely to make in the future to the welfare of the family.
All of these factors are relevant when a District Judge decides a financial order.
A Judge must provide a fair and reasonable approach to any decision, but the parties may reach an agreement themselves. The terms of the settlement will be outlined in a Consent Order and sealed by the Court.
Civil partnership and children
Civil partners have the same legal remedies available to them in relation to children issues. It must be noted that where a civil partner who registers a civil partnership with the parent of a child becomes the child’s legal step parent. The do not however necessarily have any right to make decisions about the child. In order to participate in important decision making about children, it is important to have parental responsibility. This can only be acquired in certain ways as it is a legal status. A civil partner can acquire parental responsibility for a child as the child’s “acknowledged” parent and also through entering into a civil partnership. Civil partners can acquire parental responsibility for a child as the child’s natural mother through a court order (including adoption) or through a Parental Responsibility Agreement with the child’s parents (only if the civil partner is the child’s step parent). In some cases, though fairly unusual, it is possible for lesbian partners both to be registered as parents on the birth certificate.
The court will avoid making orders concerning arrangements for children unless the people with parental responsibility cannot reach an agreement. Any unresolved issue will be considered by the court and paramount consideration will always be given to the welfare of the child. The court has a welfare checklist which Judges must consider (please refer to AWD Law’s children page for further information). Civil partners have the right to apply for residence or contact orders in respect of a child of the family and do not require any leave or permission from the court. They are also under a duty to make financial provision for child of the family.
Property and Financial Arrangements orders relating to children
Civil partners can obtain from the Court the same range of financial orders as those available to married couples who go through a divorce, nullity or judicial separation. These will include payment of lump sums, periodical payments (spousal maintenance), property adjustment i.e. the transfer of a property from two people to one person or the sale of property; and pension sharing. As with divorcing couples, civil partners can obtain interim maintenance provision while financial proceedings are pending.
The Court will apply principles similar to those applied to whilst making orders on a divorce. The Court will take into consideration all of the circumstances of the case, the first consideration being given to the welfare of any child under the age of 18 years. As with property and finances above, the court will consider a checklist of relevant factors such as:
- The income, property, earning capacity and other financial resources of each partner including resources likely to be available in the foreseeable future
- Any reasonable expectations of increased earning capacity, financial needs, obligations and responsibilities which each civil partner has or is likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the civil partnership
- The age of each civil partner and the duration of the civil partnership
- Any physical or mental disability of either of the civil partners
- Contributions that each of the civil partners have made or is likely to make in the foreseeable future to the welfare of the family
- Any conduct which the court would find inequitable to disregard
- The value to each of the partners of any benefit which as a result of the dissolution of the civil partnership that civil partner will lose the chance of acquiring has there not been a break down of a relationship.
When considering financial arrangements, a Judge must provide a fair and reasonable approach and if possible, achieve a “clean break” situation. If the civil partners reach an agreement before the Judge decides their fate, the Judge can consider the agreement and approve it by making an order reflecting it. The court will not automatically rubber stamp any agreement as a Judge will have to be satisfied that the agreement reached between the parties is fair and reasonable. The earliest the courts can approve the Consent Order is after the Conditional Order has been made.
To discuss any of these issues above, please contact Oi-Yuyn Wong 01329 232314 or by email firstname.lastname@example.org