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Civil Partnership Act 2004
The Family Proceedings (Amendment no 5) Rules 2005 (SI 2005/2922) have amended the Family Proceedings Rules 1991 (SI 1991/1247) and implement the Civil Partnership Act 2004 (CPA). This received royal assent on 18 November 2004 and was due to come into force on 5 December 2005. Rules 75 to 90 and 117 (a)(vii), (u), (y) to (bb) and 120 come into force on 30 December.
The Act allows same-sex couples to register their partnership, so that every right and responsibility arising from marriage between heterosexuals is available to them, apart from a religious ceremony.
To register a civil partnership, the parties must not be of the opposite sex, already a civil partner or legally married, younger than 16 years of age, and within prohibited degrees of relationship (for example, a child, adoptive child, parent or sibling).
Registration
A civil partnership is formed when two people have signed a partnership document in the presence of each other, the registrar, and two witnesses. The registration of a partnership must take place in England and Wales, and may not be in religious premises.
Each of the proposed civil partners must give notice of the proposed partnership to their local registration authority (section 5 (1) of the CPA). They may choose in which authority they wish to register their partnership. However, they must both have resided (that is to say, have been physically present) in England and Wales, and in an authority for at least seven days prior to giving notice of the intended registration. If a party or persons are subject to immigration controls then, for the purposes of entering into the partnership agreement, they must either obtain entry clearance, or obtain written permission from the home secretary, or fall within a class of persons specified by the secretary of state. Reporting duties will fall on any authorised person who suspects the formation of the partnership is for the sole purpose of evading statutory immigration controls.
When notice is given, the authority will require evidence of name and surname, age, any form of civil partnerships or marriage and proof of their termination, nationality, and the requisite residence in England and Wales for the seven days preceding the giving of notice.
After giving notice, the parties must wait a further 15 days (save where the registrar-general is satisfied there are compelling reasons for shortening the period).
Notice must be publicised by the authority for 15 days both in the authority area where registration will take place and in the authority area where the parties live, if different. During the 15-day waiting period, any person may object to the proposed partnership.
At the conclusion of the waiting period, the registrar is under a duty at the request of one or both civil partners to issue a partnership schedule (except where an objection has been recorded or where the authority believes there may be a lawful impediment). The proposed civil partners have 12 months from the date of the first civil partner's notice to sign the schedule.
Once the proposed civil partners have signed the schedule, a partnership will have been formed. Observance of the notification period dictates that there can be no dusting of confetti before 21 December 2005 as no registrations will be likely to take place before that date.
Termination, annulment and dissolution
Civil partnerships will be brought to an end on the occurrences of the following events:
A partnership will be declared a nullity if there is a procedural irregularity of which both parties were aware at the time of registration, or if the parties were not eligible to register as civil partners. Procedural irregularities will include failure to give proper notice, a partnership document not being issued, place of registration being incorrectly specified in the notice, and a registrar not being present (section 49). In these instances, the partnership will be considered void ab initio and can only be validated at a later date by an order of the Lord Chancellor in limited circumstances.
A civil partnership is voidable where parties do not validly consent; either party was suffering from a mental disorder as to be unfit for partnership; one party was pregnant by another person than the other party; after formation, an interim gender recognition certificate has been issued, or one party has acquired gender under section 50 of the Gender Recognition Act 2004.
There is no requirement to consummate a partnership or for the relationship to be sexual.
Proceedings for nullity must be commenced within three years of the formation of the partnership.
The ground for dissolution is 'irretrievable breakdown' of the partners' relationship proved by the existence of any of the four facts that mirror section 1(2)(b)-(e) of the Matrimonial Causes Act 1973 (MCA). Adultery is not a fact.
However, sexual infidelity may fall within the ground of unreasonable behaviour.
A dissolution order would not be granted under paragraph (c) (separation for five years) if it would cause grave financial or other hardship to the respondent, and it would be wrong in all the circumstances to dissolve the partnership.
As with a divorce, no application may be made for a dissolution order before a year has elapsed from the date of the formation of a partnership. However, the time-bar does not prevent an application being made on the basis of events that occurred during that first year (section 41).
Financial claims
Section 72 makes provision for financial relief for civil partners. Sub-section (1) states that schedule 5, containing the ancillary relief provisions, corresponds to provisions made for financial relief in connection with marriages under the MCA.
Schedule 5 sets out the orders available as follows:
On a par with the MCA, there are several factors that the court will take into account when it exercises its jurisdiction in relation to financial orders made on the termination of a civil partnership. It must take into account all the circumstances of the case, giving first consideration to the welfare of any child of the family who is younger than 18 years of age (schedule 5, paragraph 20).
Schedule 5, paragraph 21(2) almost identically mirrors the factors set out in section 25 of the MCA. The court, when deciding whether or not to exercise any of its powers under section 72, will be likely to adopt the approach taken on interpretation of the section 25 criteria.
Only time will tell how the courts will approach the distribution of assets. However, it is anticipated that cases such as White v White [2000] 2 FLR 981, will be followed. It is reasonable to expect that the length of the partnership, and any pre-agreement co-habitation, will be dealt with in line with the findings in GW v RW [2003] 2 FLR 108 and CO v CO (ancillary relief: pre-marriage cohabitation) [2004] 1 FLR 1095. The cases of Miller v Miller [2005] EWCA Civ 984 and McFarlane v McFarlane [2004] EWCA Civ 872 will be heard together on appeal to the House of Lords in January and, doubtless, those decisions will apply in appropriate cases.
Many same-sex couples will have lived together for a long time, and the registration of their partnerships will be a binding acknowledgement of enduring relationships. What then of any attempt to enter into a binding pre-registration agreement?
In K v K (ancillary relief: pre-nuptial agreement) [2003] 1 FLR 120 and M v M (pre-nuptial agreement) [2002] 1 FLR 654, we have seen a willingness by the court to uphold, or pay judicial attention to, pre-nuptial agreements. Perhaps we will see a greater willingness to uphold any such agreements entered into by civil partners.
The civil partnership is borne entirely out of statute and has no common law jurisprudence. Marriage, by contrast, has its roots in canon law and was intended to be a union for life. No such expectation is placed, statutorily, on civil partners. Why then should agreements properly entered into by civil partners to provide for the distribution of assets on dissolution of their agreement been seen to offend judicial or public policy? In cases where the court does not have to concern itself with provision for children, there may be a greater willingness to uphold pre-registration agreements.
Financial provision for children
The court, on exercising its powers in relation to a child of a family, will have regard to the financial needs of the child; income, earning capacity, property and other financial resources; any physical or mental disability; educational or training expectations; financial circumstances of the civil partners, and any mental or physical disability on their part.
The additional factors in schedule 5, paragraph 22(3) will be used where a child is not a child of both partners. Unless an adoption order has been made, the child is not likely to be a child of both partners.
The effect of the amendments to schedule 1 of the Children Act 1989 by section 78 of the CPA will be that the potential category of applicants will be widened to include civil partners and former civil partners who will also be able to make an application for financial provision under schedule 1.
Parental responsibility
The rules also make changes consequential to amendments to the Children Act 1989 made by the Adoption and Children Act 2002. Section 112 inserts section 4A into the 1989 Act to enable a step-parent to acquire parental responsibility for a child of his spouse or civil partner other than through a residence order. This can be achieved by way of agreement in the prescribed form and recorded in the prescribed manner (form C (PRA)), or order of the court. This will bring the new law in line with existing provisions for unmarried fathers.
Section 4A(3) of the 1989 Act provides that parental responsibility can only be terminated by an order of the court on an application by any person with parental responsibility or, with leave, the child itself.
Section 115(1) of the CPA inserts new sections 14A to 14G into the 1989 Act to provide for a special guardianship order. Section 77 of the CPA amends section 10(5) of the 1989 Act to enable a civil partner to apply for a residence or contact order (section 8 of the 1989 Act) without leave of the court being required.
Adoption
The Adoption of Children Act 1926 placed a restriction on the adoption of children by same-sex couples. Section 49(1)(a) of the Adoption and Children Act 2002 allows an adoption by a 'couple'.
This term is defined by section 144(4)(b) of the 2002 Act as 'two people (whether of different sexes or the same sex) living together as partners in an enduring family relationship'. The CPA amends this section to include people who are civil partners of one another, as with married couples.
It is anticipated that many same-sex couples will avail themselves of the opportunity to register their unions and obtain the legal status of civil partners. Practitioners will not be able to assist in dissolving a failed partnership until December 2006.
However, the likelihood is that post-30 December, lawyers will be required to assist in matters relating to children of civil partnerships. Section 103(1) of the Finance Act 2005 will bring into force detailed provisions for the taxation of civil partners, and tax advisers will need to be aware of the possible tax disadvantages that could be the result of a partnership registration. The inheritance tax position has also changed, allowing the same exemptions for a civil partner on death that currently applies between spouses.
Civil partnerships were never intended to be marriages. Nevertheless, the common terminology continues to refer to them as such. We await the outcome of the Law Commission paper, scheduled for publication early next year, concerning a proposed change in the law for heterosexual cohabiting couples.
In the years to come, perhaps couples will be faced with a comprehensive choice as to the type of 'marriage' they consider appropriate for the circumstances of their relationship.
By Gill Rivers, consultant, Charles Russell, London
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