Same Sex Relationships: Civil Partnerships and Same Sex Marriage – What’s the Difference?

Since December 2005 it has been possible for same sex couples to enter into a civil partnership, and since 29 March 2014 same sex couples have been able to get married. So, what is the difference between civil partnerships and same sex marriage and why might you choose one rather than the other? And is your overseas civil partnership or same sex marriage recognised in England & Wales?

Civil Partnership:

Civil partnership is similar to a civil marriage and, in almost all respects, is legally equivalent. For example:

• Civil partners enjoy the same tax treatment as married couples
• Civil partners can acquire parental responsibility for each other’s children in the same way as married couples
• Civil partners may adopt a child or apply for a parental order (in respect of a surrogate child) in the same way as a married couple
• The divorce process (known as dissolution in the context of a civil partnership) is the same as for divorce although the grounds for dissolution of a civil partnership are slightly different
• Financial settlements on dissolution of a civil partnership are the same as on divorce; and
• Civil partnership agreements are treated in the same way as marriage or relationship agreements (pre-nups or post-nups, for example).

Other countries have a variety of different schemes relating to same sex relationships. The rights and responsibilities that arise out of civil partnership or civil union schemes can differ significantly from country to country, from equivalence to marriage (such as UK civil partnerships) to ones that largely confer tax benefits (such as the French PACS scheme which is also available to opposite sex couples). The recognition provisions are patchy and can give rise to very different rights and responsibilities to those which apply in the home country. It is really important to get professional advice so that you can understand the implications of the different schemes.

If you registered a civil/domestic partnership in another country, almost certainly your registered partnership will be recognised throughout the UK as a civil partnership. The Civil Partnership Act 2004 (which applies throughout the UK) recognises ‘overseas relationships’ which are either set out in a schedule to the Act or which meet general criteria which would be met by the vast majority of overseas partnerships.

The Marriage (Same Sex Couples) Act 2013 allows couples to convert civil partnerships registered in England & Wales into marriage. The Marriage and Civil Partnership (Scotland) Act 2014 makes similar provisions for Scottish Civil Partnerships. There has been a consultation in Northern Ireland about conversion of civil partnerships into marriage there but no legislation yet exists to provide for it. However, foreign domestic civil partnerships cannot be converted into marriage in England & Wales. It would be necessary to dissolve the foreign domestic civil partnership and then marry in England & Wales or Scotland.

Same Sex Marriage:

Since 29th March 2014 same sex couples also have the option of getting married in England & Wales. This was made possible by the Marriage (Same Sex Couples) Act 2013. It is also possible for a same-sex couple to marry in Scotland under the Marriage and Civil Partnership (Scotland) Act 2014. As from January 2020, same-sex marriage is also available in Northern Ireland.

However, some important differences remain between same sex and opposite sex marriage in England & Wales:

• Whilst provision is made for religious same sex marriages, this is only possible if the religious group ‘opts in’. Clergy from the Church of England and the Church in Wales are currently prohibited from performing a same sex marriage
• There is no requirement to consummate a same sex marriage (and, therefore, nullity on the basis of non-consummation is not available) and
• Adultery is not a basis for divorce in the case of a same sex marriage.

If you married your same-sex partner in another country that marriage will be recognised in England & Wales provided that the marriage has been properly performed in the country in which it took place and the couple had the capacity to marry each other under their personal law. This can be quite complex but most foreign same-sex marriages will be recognised. Scotland and Northern Ireland make similar provision.

Our Expertise in Civil Partnerships and Same Sex Marriage:

Director David Allison is renowned for his expertise in advising same sex couples across all issues from negotiating pre marriage and pre civil partnership agreements to negotiating divorce and the dissolution and separation process. He is chair of the LGBT committee of the International Academy of Family Lawyers, and he is a member of the UK & Ireland LGBT Family Law Institute.

If you are thinking about entering into a civil partnership or a same sex marriage, or if you have any questions about the legal implications of your same sex relationship, please contact David Allison for an informal chat on 020 7420 5000.