This year marks the 20th anniversary of the Civil Partnership Act 2004, which came into effect on 5 December 2005. The first civil partnership registration took place that same day.
At their inception, civil partnerships were intended to provide legal recognition for same-sex couples, affording them the same protections and rights as married couples. Less than a decade later, in 2014, same-sex marriage was legalised. A high-profile Supreme Court judgment in 2018 (Steinfeld and Keidan), which concluded that the absence of heterosexual civil partnerships was incompatible with the European Convention on Human Rights, then led to the introduction of civil partnerships for opposite-sex couples in 2019.
Although civil partnerships and marriages are often described as legally analogous, there remain challenges, particularly in the dissolution of a civil partnership and for those with international connections.
Civil partnerships in England and Wales
Civil partnerships provide the same rights as marriage in areas such as inheritance, tax, social security and next-of-kin status. The financial claims available on the dissolution of a civil partnership in England and Wales are also identical to those arising on divorce. With the introduction of ‘no-fault’ divorce in April 2022, a similar regime for the dissolution of civil partnerships was introduced, thereby removing the last remaining differences between divorce and dissolution (for example, adultery had previously been a ground for divorce but not the dissolution of a same-sex civil partnership).
However, there remains an anomaly: same-sex civil partners can choose to convert their partnership into a marriage. Heterosexual civil partners, on the other hand, do not have this option. While this might seem a minor issue, it creates an impossible challenge for civil partners who wish to marry. They would need first formally to dissolve their civil partnership but, to do so, they must sign a statement of truth that their partnership has broken down irretrievably.
Implications for international couples
While marriage is widely recognised around the world, civil partnerships are not. There is no accepted worldwide definition for ‘civil partnership’ and, even in countries where civil partnerships are acknowledged, the legal rights and protections can differ substantially from those in England and Wales.
Civil partners who travel frequently, or have international connections, need to be aware of the range of possibilities. These include:
- Some countries do not recognise civil partnerships, and cohabitation outside of marriage may be criminalised.
- Civil partnerships may be recognised only for same-sex couples.
- Civil partnerships may be recognised but carry limited rights, or rights which differ from those to which they are accustomed in England and Wales (both during the partnership and upon dissolution).
Civil partnerships and jurisdiction
Further, if civil partners have a connection with a foreign country, this can create unique challenges. To divorce or dissolve a civil partnership in England and Wales, at least one party must be habitually resident or domiciled in this jurisdiction.
While there is an exception for same-sex civil partners, who may be permitted to dissolve their partnership in England and Wales if it would be in the interests of justice for the court to assume jurisdiction, this does not apply to heterosexual civil partners. There is, therefore, a real risk that heterosexual couples who register their civil partnership in England and Wales, and subsequently lose their connection to this jurisdiction, cannot formally dissolve their partnership here. If they have moved to a country which does not recognise civil partnerships or has no framework for their dissolution, there may be minimal options available to them, unless they can return to England and Wales for such period as is necessary to regain jurisdiction.
In addition, if it is possible to dissolve a civil partnership abroad, but that country provides no, or more limited, financial claims on dissolution than in England and Wales, the financially weaker party could be at risk of real financial hardship. While similar risks exist for married couples with a foreign connection (and the ability to apply for financial claims after a foreign divorce in England and Wales also exists for civil partnerships), the disparity is potentially far greater for civil partners.
Conclusion
Last December, the Law Commission published its scoping report on financial remedies on divorce and dissolution. While the report does not address the differences between same-sex and opposite-sex civil partnerships or provide a solution to the international dilemma, it does propose four models for reform, to improve and clarify financial remedies law. The government’s response, due later this year, will affect both civil partners and married couples alike.
At a time when divorce and financial remedies law is being scrutinised, in view of societal changes which include the widening of civil partnerships and marriages to all, one might question whether civil partnerships now create more complications than they resolve.
That said, in 2022, there were 6,879 civil partnerships in England and Wales; they clearly serve a meaningful purpose for many. As such, the most beneficial step forward may lie in raising awareness of the challenges civil partners may face internationally and encouraging early legal advice to help mitigate complications down the line.
Iona Nicolson is a solicitor at Howard Kennedy, London
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