As we celebrate PRIDE month in June, it is a good opportunity to reflect on some of the most common questions we receive as family lawyers from same-sex couples. Whether you are considering a civil partnership, same-sex marriage, or you are facing separation, it is important that you understand your rights and the legal processes involved.
Can same-sex couples get married?
Yes, since the introduction of the Marriage (Same Sex Couples) Act 2013, same-sex couples have the same right to marry as couples of the opposite sex. Same-sex marriages can take place in civil ceremonies, and religious ceremonies if the religious organisation agrees.
What is a civil partnership?
If you don’t want to get married but want your relationship to have legal recognition, you may prefer a Civil Partnership instead. The main difference between civil partnerships and marriage is simply the formation, as civil partnerships do not require you to exchange vows. They only need the signing of a civil partnership schedule.
Civil Partnerships were initially created for same-sex couples through the introduction of the Civil Partnership Act 2004, but they were extended to and made an option for opposite-sex couples in 2019. It is possible to convert a civil partnership into a marriage through a formal legal process, if you want to do so, or if you wish to keep that option open for the future.
Ending same-sex marriages or civil partnerships
For same-sex marriages, divorce works in the same way as for opposite-sex marriages. Since the introduction of no-fault divorce in April 2022 through the Divorce, Dissolution and Separation Act 2020, married couples who wish to divorce now only need to provide a statement that a marriage has irretrievably broken down, rather than needing to provide evidence of fault such as unreasonable behaviour or separation. Civil partnerships end by applying for ‘dissolution’, which follows a very similar process to divorce.
Timescales and legal process
The process of ending a same-sex marriage or civil partnership following a relationship breakdown is largely comparable under both models of divorce or dissolution. Both processes take at least 6 months from start to finish, and the applications can be made online. Applications can either be made jointly together, or individually. There is a Court fee of £612.
Once the application is received by the Court, there is a 20-week cooling-off period, intended to be a period of reflection. After this timeframe, you can apply for a Conditional Order of divorce or dissolution, which is the middle stage of the process. Finally, 6 weeks and 1 day later, you can then apply for a Final Order of divorce or dissolution, which legally ends the marriage or civil partnership.
What happens to the finances on separation?
In terms of resolving finances at the conclusion of same-sex marriages, same-sex couples have exactly the same entitlements and claims as opposite-sex couples, which would include pension sharing, property adjustment orders, lump sum payments, and child and spousal maintenance. Civil partners have the same rights to financial claims as married spouses, but these claims are made under the Civil Partnership Act 2004. Otherwise, the principles of financial division are largely identical and mirror those of marriage.
The starting point for the Court when deciding how financial assets including savings, property, and pensions are to be divided is that they are typically shared equally. However, some assets such as inheritance or items brought into the relationship can sometimes be excluded from the matrimonial pot for division.
The Court considers a number of factors when dividing the assets. The first consideration being the welfare of any minor children as well as the following:
- Income and earning capacity of both parties;
- Financial needs, obligations, and responsibilities;
- Age of each partner and length of marriage/civil partnership;
- Standard of living during the relationship;
- Mental or physical disabilities;
- Contributions of the parties to the family (including both financial and domestic contributions);
- Conduct of the parties;
- Loss of benefits due to divorce or dissolution.
The Court’s goal is a fair outcome that meets the needs of both partners and any children, after a consideration of the above factors.
More specifically, what happens to the family home on divorce/dissolution?
How the family home is treated depends on whether you own the property, or rent your home. For owned properties, the property may be sold, and the proceeds divided between partners. Alternatively, one partner might buy the other out of their share if there is enough money in the matrimonial pot for this to be achieved. For rented properties, the tenancy could be transferred to one partner, or ended with you both needing to find alternative accommodation.
Do we need to go to Court if we can’t agree on how to divide the finances?
Going to Court should always be a last resort. Before making an application to the Court, it is imperative that you have attempted to resolve matters outside of the court process. Some potential non-court dispute resolution options include the following:
- Direct negotiations with your partner (without the need for legal professionals);
- Negotiations through solicitors (each of you appoints a solicitor to negotiate on your behalf and advise you throughout the process);
- Mediation (where an impartial third party helps guide you both to make your own decisions and reach an agreement);
- Arbitration (both parties appoint a specially trained arbitrator, usually a barrister or solicitor, to hear the case and make a binding decision);
- Early Neutral Evaluation (this is an informal process where an impartial evaluator, usually a specially trained barrister, assesses the merits of a case and provides their opinion, to help the parties make a decision);
- Collaborative law (you can both instruct trained collaborative lawyers, who can work together to negotiate and reach a settlement outside of court);
- Specialist services such as Accord (we offer a one lawyer one couple model, where the same lawyer can act and support both parties in reaching a resolution).
How Moore Barlow can help
If you need advice about entering a civil partnership or same-sex marriage, or any advice and support with divorce, dissolution, or related financial matters, our experienced family team can assist. We also offer a range of mediation and collaborative services to help couples reach amicable solutions to family matters.
