Understanding same-sex divorce and civil partnerships in England and Wales

Over the last 20 years, the law in England and Wales has become much more inclusive to those wishing to formalise same-sex relationships. But what happens when these relationships break down? Are matters dealt with differently to heterosexual couples? Below, I have set out some answers to frequently asked questions in relation to same-sex divorce or the breakdown of a civil partnership.

Can a same-sex couple get married?

In short, yes! Following the introduction of the Marriage (Same-sex couples) Act 2013 in July 2013, same sex couples are now able to get married in the same way as heterosexual couples.

If you do not want to get married but would like some legal recognition to your relationship, you can instead choose to enter into a Civil partnership. The main difference is in the formation; with a marriage you exchange vows and then sign your marriage certificate and with a civil partnership, you only need to sign the civil partnership schedule, there are no vows required.

Following the introduction of same sex marriage, the number of civil partnerships has decreased. However, if you do enter into a civil partnership and in the future wish to get married, it is possible to convert your civil partnership into a marriage.

How does a same-sex couple get divorced?

Same-sex couples who are married, get divorced in the same way as heterosexual couples. Since the Divorce, Dissolution and Separation Act 2020 came into force, this is no through the no-fault system which means the only reason required for a divorce is that your marriage has irretrievably broken down.

For couples who entered into a Civil Partnership, this is ended by dissolving the partnership. The process of dissolution is very similar to that of a divorce.

How long does it take to get divorced and what is the process?

It takes around six months for the divorce/dissolution process from start to finish.

Both applications can be made online and there is a Court fee payable of £593 for each. Both parties to the marriage/civil partnership can make the application together, known as a joint application, or one of you can make the application on your own, known as a sole application. After the application is issued by the Court, there is a 20 week cooling off period to allow some time for reflection, making sure you are both certain this is what you want to do. After the cooling off period, you can apply for the conditional order of divorce/dissolution. This confirms that the Court agrees to your marriage/civil partnership ending but does not end it at this stage. Six weeks and one day after the date of your conditional order, the final order can be applied for and this will formally end the marriage/civil partnership.

Can a same-sex divorce/dissolution be contested in England and Wales?

Under the no fault regime, it is not possible to contest the divorce/dissolution because you do not want it to happen. The only way you can contest it is if you do not believe that the Court of England and Wales has the ability to deal with it. This is known as contesting jurisdiction and is quite a complex area of law. It is advised that you take legal advice if this is something you are considering doing.

What happens to our home if we get divorced?

The answer to this question largely depends on whether you own or rent your home. However, generally people do not continue living together once they are divorced.

If you both own your home, it is possible that the property will need to be sold and the proceeds of sale divided between both of you to enable you to purchase individual properties for yourselves. It is not always necessary to do this though if one of you is able to buy the other out.

If you rent your home, it may be possible to transfer the tenancy from joint names into one person’s name so that one of you can remain in the property. Otherwise, the tenancy will need to be brought to an end and you will both need to find alternative properties.

Where there are children involved and the finances allow, the Court prefers families live in owned homes rather than rented to ensure as much security as possible for the family.

What happens to the rest of our finances on divorce?

The starting point for the division of finances is that all other capital shall be shared equally between both of you. This includes pensions. It can be possible in certain circumstances to ringfence assets from this principle though such as inheritance or a particular asset that you brought into the relationship, that has not been used for the benefit of the family.

The court then must consider whether there is a need to depart from equality. There are certain factors that are set out in S25 of the Matrimonial Causes Act 1973 which must be taken into account, after considering the needs of any children of the family. These are:

  • the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire
  • the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
  • the standard of living enjoyed by the family before the breakdown of the marriage
  • the age of each party to the marriage and the duration of the marriage
  • any physical or mental disability of either of the parties to the marriage
  • the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
  • the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it
  • in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring

The family court in England and Wales has a great deal of discretion when deciding the outcome of what will happen. However, ultimately, the final outcome must meet the needs of each of you and your children.

How do we divide our money if we entered into a civil partnership?

The same claims are available to civil partners as spouses. Therefore, the same principles as set out above apply. The only difference is the law in which orders can be made, being the Civil Partnership Act 2004.

Our relationship has ended but we do not want to get a divorce/dissolution at the moment, is there anything we can do?

If you are still working out whether it may be possible to rekindle your relationship, there is no need to rush to formally end the marriage/civil partnership. It is possible to enter into a separation agreement which records what you have agreed to happen during this time including with your finances.

If you would like to formalise your separation, you can apply for a judicial separation. This can be beneficial when there are religious reasons against divorce or if you have been married/in your civil partnership for less than a year. It is possible for financial orders to be made on judicial separation too in the same way as on divorce/dissolution, except that it is not possible to make orders in relation to pensions.

If we can’t agree on how to divide our money, do we have to go to Court?

Court should always be seen as a last resort. There is now a requirement for you and your spouse to have made a genuine attempt to resolve your issues outside of Court, before you are able to make an application.

There are various ways in that this can be done including:

  • Direct negotiations – between you both
  • Solicitor negotiations – between your solicitors acting on your behalf
  • Mediation – where a specially trained impartial individual aids negotiations between you in the hope you can reach an agreement
  • Arbitration – where you select a specially trained barrister or solicitor to make a binding decision (it is a bit like a private court!)
  • Early neutral evaluation – where a specially trained barrister is asked to give their opinion as to what decision they would make, if they were a Judge.
  • Collaborative law – where you both work with your lawyers and have joint meetings to discuss the issues in the hope of reaching an agreement
  • Accord – using our one lawyer one couple model

How do we deal with arrangements for our children?

Child arrangements are always dealt with separately to divorce/dissolution and finances. See this article by Charlotte Millard about how issues surrounding your children can be dealt with.

How Moore Barlow can help

At Moore Barlow we have trained lawyers who can provide you with advice in relation to how to end your marriage or civil partnership and also any issues arising out of that including in relation to finances and children. We also have specially trained mediators who can assist with resolving disputes. Further, we are proud to offer our Accord service, which follows the one lawyer one couple model.

Please do not hesitate to get in touch if you would like to find out more.


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