Gay Marriage or Civil Partnership?

The Government plans to introduce gay marriage before the next election in 2015.A consultation exercise was launched earlier this year setting out the government proposals to enable same sex couples to have a civil marriage.The proposals of the consultation included a provision to enable those same sex couples already in a civil partnership to convert this into a marriage.The Parliamentary Under Secretary of State for Equalities and Criminal Information, Lynne Featherstone, said when launching the consultation:

During a listening exercise conducted in 2010 on allowing civil partnerships to take place on religious premises, we heard representations from many who sought equal access to marriage for same sex couples The initial consultation document said it would not be possible for a same sex couple to get married in a church or other religious premises, but this week, Culture Secretary Maria Miller told the commons that this would now be likely.

The Church of England and Church in Wales have voiced strong opposition to the concept of gay marriage but some other religious groups such as Quakers, Unitarians and Liberal Judaism are in favour. Culture Secretary Maria Miller confirmed to the House of Commons that the Church of England and Church in Wales explicitly stated their opposition to offering same sex ceremonies and that therefore the government would explicitly state that it will be illegal for the Churches of England and Wales to marry same sex couples.She also said, am absolutely clear that no religious organisation will ever be forced to conduct marriages for same sex couples, and I would not bring in a bill which would allow that

Gay marriage marks a further not only social, but legal acceptance of same sex couples.Civil partnerships were viewed as an important step forward when they were introduced under the Civil Partnership Act 2004 and since their introduction the following year, there have been over 46,000 civil partnerships entered into.

Yet despite the complexity of many cases, often involving same sex couples who have lived for periods overseas, who have assets overseas or who have had children by way of donor or IVF, there is little other than the primary legislation of the Civil Partnership, and the comparisons that lawyers can draw to the Matrimonial Causes Act 1973 and subsequent case law, to assist both those dissolving civil partnerships and their lawyers.

It is believed that the only reported case of a civil partnership is the appeal of Lawrence v Gallagher [2012] Civ 394 in which the Supreme Court very recently refused permission to appeal.This case in fact emphasized the judicially consistent approach to dividing up assets, income and pensions when dissolving a civil partnership in exactly the same way as dividing up the matrimonial pot on divorce.

Mr Lawrence argued that this was a dual career case where the principle of sharing assets, income, property and pensions enunciated in the leading divorce case of White v White should not apply.He argued that Mr Gallagher should only be entitled to claim income, capital and pension limited to his actual needs.The couple didn't have any children and had wealth in excess of 4 million.Although the award made to Mr Gallagher was reduced by the Court of Appeal, Mr Lawrence arguments that the case was not one where the sharing principle should apply were rejected. 

It therefore remains to be seen how widely available gay marriage will be, and if civil partnership cases such as Lawrence v Gallagher will be replaced by gay couples divorcing through the Court but what is clear is that despite the complexity of many civil partnership cases, the Court will adopt exactly the same approach to dividing up wealth upon divorce.

Many of the issues that same sex couples face when separating are complex and it is important that you obtain legal advice not only from a lawyer who offers understanding about your circumstances, but one who has expertise in dealing with the division of assets, and the making of arrangements about children, upon dissolution.

Gabbie  Clasper

Written by

Gabbie Clasper

Head of Family Law

Gabbie has over 20 years’ experience in family law. She has expert knowledge in complex issues including financial aspects following divorce; pre and post-nuptial agreements; cases with an international element; and civil partnerships. Gabbie is regularly instructed by clients based across the country and abroad. She...

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