In this blog, Family Law in Partnership director David Allison examines the care needed when registering a civil partnership or same sex marriage with an overseas consulate.
When registering a UK same sex marriage or civil partnership in an overseas British consulate the parties are required to give notice to the relevant consulate in a specified format. The couple are required to provide certain information including electing which UK jurisdiction (England & Wales, Scotland or Northern Ireland) is relevant to their marriage/civil partnership. There is no requirement to have a particular connection to the UK jurisdiction which they elect.
This seemingly innocuous election may have serious implications for some same sex couples who subsequently split up.
Which legal system (or jurisdiction) governs the dissolution of the civil partnership and the divorce of a same sex couple follows that relevant to heterosexual marriage. It is largely based on habitual residence and domicile (ie. the couple, or one of them, must be habitually resident or domiciled in England & Wales in order to divorce in England & Wales). Similarly for Scotland and (in respect of civil partnership only) for Northern Ireland.
However, for both civil partnership and same sex marriage there is a residual basis of jurisdiction if the couple cannot divorce elsewhere. This would apply if the same sex marriage or civil partnership is registered here but neither party is habitually resident or domiciled here. In these circumstances it may be that it is in the interests of justice for the court here to assume jurisdiction. This is probably more common than you might think. Certainly I have had two cases this year where we have had to rely on the residual jurisdiction.
Same sex marriages and civil partnerships that are notified to the British overseas consulate are deemed to have been registered here. The question is which UK jurisdiction – England & Wales, Scotland or Northern Island – is relevant? The answer is the jurisdiction jointly elected by the couple on giving notice to the overseas consulate.
So, consider the case of a couple who have registered a civil partnership or same sex marriage with the British consulate in, say, Australia and are habitually resident there (or indeed any jurisdiction that does not recognise same sex marriage or civil partnership) who then decide to split up. If neither is domiciled in England & Wales, Scotland or Northern Ireland the jurisdiction which governs their separation is entirely determined by the election they made when registering their same sex marriage or civil partnership with the British Consulate in Australia.
“So what?” I hear you say. The reason this is important is the vast difference in financial provision available to separating couples between the different UK jurisdictions. Just one example of this is the difference in maintenance. In England & Wales long-term maintenance orders are fairly common. In Scotland maintenance is limited to 3 years. So the box you ticked when giving notice to the overseas consulate (without the benefit of legal advice) may determine whether you receive maintenance for 3 years or 30 years. Be aware!
David Allison is a director at Family Law in Partnership. He acts for a wide range of individuals including business owners, entrepreneurs, bankers, other lawyers and their partners. The focus of his practice is financial claims on divorce, particularly those with an international dimension, and he is also well known for his expertise in the legal issues affecting cohabitants, same sex couples and civil partners.