Civil Partnership Act 2004

First published in NewsBrief, Summer 2005

Same-sex couples gain legal recognition

Elton John has already announced his intention to marry his longtime partner David Furnish later this year. The two plan to hold a civil partnership ceremony at the Guildhall in , where Prince Charles and Camilla recently wed. PAUL MILTON examines some of the main provisions of the Civil Partnership Act which has made this possible.

On the 5^th December 2005 the United Kingdom  will introduce historic and ground breaking legislation. The implementation of the Civil Partnership Act, for the first time in British legal history, will grant legal status to gay and lesbian couples allowing them to form legally recognised civil partnerships. The new civil partnerships will be available for same- sex couples but not for couples of the opposite sex. The new legislation will bring the  alongside other European countries that legally recognise same sex couples including Belgium, Denmark, Finland, France, Germany, The Netherlands, Norway, Portugal, Spain and Sweden.  

The vast majority of registrations for civil partnerships will take place at registry offices. Taking into account the interest and controversy which such legislation has created, the architects of the legislation have been keen to stress that civil partnerships are not the same as gay marriage. There is no religious element at all to the registration procedure and registration is very unlikely to take place at a place of worship. However, as with marriage for heterosexual couples, civil partnerships do create a set of legal rights and responsibilities.

The Act provides same- sex couples who form a civil partnership with equal treatment in a wide range of legal matters with those of opposite-sex couples who enter into a civil marriage. For example, the parties to a civil partnership will access joint treatment for income- related benefits, joint state pension benefits, they will have the ability to gain parental responsibility for each others children, they will be recognised for immigration purposes and will be exempt from testifying against each other in a court of law. Same –sex couples will also particularly welcome the provisions which allow the application of standard inheritance tax planning techniques. In addition, if one partner dies the other will have the right to register their death and claim a survivor pension whilst also being eligible for bereavement benefits. Surviving partners will also be recognised under inheritance and intestacy rules and will have tenancy succession rights.

One vital point about a civil partnership that is often overlooked is that (like marriage) registration will revoke an existing will. Partners planning to register their partnerships must therefore arrange for new wills to be made as a priority. Failure to do so will leave civil partners intestate with their existing wills no longer being valid with disastrous consequences should one of them die. 

In order to register a civil partnership a notice of the planned partnership must be given to a registry office. The notice must contain the names of both people who intend to enter into the partnership as well as details of where the registration will take place. The notice must contain a declaration that there is no impediment to the creation of the civil partnership and that both parties to the partnership have lived in  or  for at least 7 days before the giving of the notice. There then follows a waiting period of 15 days during which time the proposed civil partnership must be publicised by the registry office.

Once the waiting period is over, either partner may request a civil partnership ‘schedule’. It is this schedule that must be produced in order to register the partnership. The registration of the partnership must take place in the location specified in the notice in the presence of the parties to the partnership, the registrar and two witnesses, with each partner signing the civil partnership schedule. The witnesses and the registrar must also sign the schedule in the parties presence. The civil partnership schedule is only valid for 12 months from the day when the notices are recorded. If it has not been signed within this time then the process must be restarted.

Should the relationship breakdown, there will be a court-based process where the partner applying for the partnership to be dissolved will have to show that there has been an irretrievable break down in the relationship. The dissolution will involve fair arrangements for property division, residence arrangements as well as appropriate contact with children.