Civil Partnerships
Civil Partnership Act 2004
The Civil Partnership Act 2004 came into force on the 5 December
2005 providing a long overdue legal recognition of same sex
couples’ rights. Same sex couples now finally have largely the
same legal rights as that of heterosexual married couples.
However, there does appear to be 2 areas where the legal rights
of civil partners and married couples differ.
Dissolution
The grounds for dissolving a civil
partnership are the same as those for dissolving a marriage with
one exception - adultery is not a ground for dissolution in a
civil partnership unlike in marriage cases.
Pre-Partnership Agreements
Pre-nuptial agreements
have been available for many years but it would seem that only
the most wealthily couples who intend to marry avail themselves
of this agreement, and it there appears to be little
encouragement from legal forums to use them.
Conversely, with the introduction of Civil Partnerships, much
emphasis has been placed on entering into a Pre-Partnership
Agreement. The Pre-Partnership agreement has been extant for
many years now. Previously referred to as ‘Cohabitation
agreements’ it was considered a useful document to have where
couples - both same sex and heterosexual - decided to live
together. More often than not however, people never knew of the
existence of such a document, as is probably the case today.
With the introduction of civil partnership rights, much emphasis
has been placed on having such an agreement. The document should
be entered into prior to registering the partnership, and is
designed to deal with how the couple wish to deal with financial
issues in the event that the partnership is dissolved.
The Law Society of England and Wales has argued in its
literature that whilst Pre-Partnership Agreements - like
pre-nuptial agreements - are not legally binding, with the
courts usually deciding to split assets 50/50 on divorce
pre-partnership agreements ought to be considered as the law
will treat civil partnerships in the same manner as divorce.
(Pre-Partnership/Cohabitation Contract and Pre-marital
agreements are available to download from the Legal
Documents section of the DYW site).
Tax & Wills Implications
Civil partners will be treated the same as married couples for
tax purposes. Thus, all the same inheritance tax exemptions
available to married couples will also be available to civil
partners. Such exemptions will include the Nil Rate Band
allowance (currently £275,000) and the ’spouse’ exemption
whereby all transfers between spouses are exempt from
inheritance tax and will also be the case with civil partners.
(For more detailed advice on inheritance tax exemptions see
Inheritance Tax).
The other implication of entering into a Civil Partnership from
a Wills perspective, is that any existing will shall be
invalidated upon registering the partnership. The extant Will
shall automatically be revoked, and a new Will should be
drafted. If you wish to make a Will in expectation or
contemplation of entering into a civil partnership - or marriage
for that matter - specific clauses will need to be drafted into
the Will to ensure that it remains valid after entering the
partnership/marriage.
Thankfully the law relating to Civil Partnerships is on a very
similar footing to that of marriage, thus matters are not too
complicated. As with advice given to married couples, making a
Will is important as you should not assume that your
spouse/partner will inherit your share, and it may well be that
specific clauses will need to be drafted into Wills for civil
partners.
JsByrne
LLB (Hons) LPc.