Should I Marry or have a Civil Partnership?

In this blog, Family Law in Partnership Director David Allison discusses how couples should decide whether marriage or a civil partnership is best for them now that both are available for opposite sex couples.

Whilst 2020 is likely to be remembered by most of us as the year of the pandemic it will be remembered by a few opposite sex couples as the year they were finally allowed to have a regulated relationship that is not a marriage. In fact, the first opposite sex civil partnerships took place on 31 December 2019 following changes to the Civil Partnership Act 2004 that the government was required to make following the Supreme Court decision in the Steinfeld and Keidan case decided in June 2018. The Supreme Court decided that allowing civil partnership only for same sex couples was discriminatory and there was no objective justification for this.

So, with both marriage and civil partnership now available to both opposite sex and same sex couples the question is, how do couples decide which is best for them? Before looking at the options I should say a little about the history so that we can understand how we got to this position.

The History – civil partnership

Civil Partnership was brought in as an alternative to marriage for same sex couples. Indeed, much of the campaigning for civil partnership centred around the difficulties faced by same sex couples, for example on the death of one of them where they would not benefit from the inheritance tax exemption available to married couples. The intention of the legislators was to create a relationship status that was not marriage but was, to all intents and purposes, marriage for same sex couples. It would have been considerably easier of course to open marriage to same sex couples but as that was not felt to be politically possible the Civil Partnership Act came into being. It is an incredible piece of legislation. It copies the marriage and divorce legislation and amends numerous statutes which refer to marriage so that they also include civil partnership.

The main differences between marriage and civil partnership were (and remain) that:

• there is no provision for religious registration. This is different from same sex marriage because religious bodies can opt in to perform same sex marriages whereas civil partnership cannot be conducted by a religious body even if they wish to do it;
• the signing of the civil partnership document registers the partnership whereas a marriage certificate is only evidence of the marriage;
• there is no prescribed form of words;
• there is no corresponding offence of bigamy (although one cannot register as a civil partner if married or already in a civil partnership and it is an offence to give false information on the notice); and
• adultery is not a ground dissolution of a civil partnership (although conducting an intimate relationship with another person may be used as unreasonable behaviour).

Same sex marriage

Then in 2014 the Marriage (Same Sex Couples) Act 2013 became law. It allowed for the first time in England & Wales marriage between same sex couples. This Act pretty much aligned the position for same sex and opposite sex couples. There are some minor differences. S.2 Marriage (Same Sex Couples) Act 2013 exempts religious bodies from conducting same-sex marriages. It also amends the Equality Act 2010 (which prevents discrimination based on sexual orientation) to effectively allow religious bodies to discriminate.

There is no requirement to consummate a same sex marriage (unlike an opposite sex marriage) and therefore the marriage cannot be nullified on this basis.  Adultery is a ground for divorce although the definition of adultery means that adultery can only take place with someone of the opposite sex.

Prior to the Supreme Court decision in the Walker case in 2017 there was a further anomaly in respect of pension rights. Pension schemes were required only to provide spouse benefits (for same sex couples) in respect of contributions made since 5 December 2005 when the UK Civil Partnership Act 2004 was implemented. The Supreme Court held that this was a breach of EU law and the section of the Equality Act 2010 that allowed it must be disapplied.

So, which is it – a marriage or a civil partnership?

On the face of it, there is no difference between a marriage and a civil partnership. There are, in addition to what I have set out above, differences in terminology. For example, instead of decree nisi and decree absolute on divorce of a marriage, there is a conditional order and final order on the ending of a civil partnership.  Otherwise the differences are insignificant.

However, if a couple intend to live in another country marriage is likely to be the best option.

Marriage is a universally recognised concept. Whilst same sex marriage remains unavailable in many countries, where it is available marriages for same sex couples abroad will almost certainly be recognised.

Whilst there are several jurisdictions that have civil partnerships or something similar international recognition is, to say the least patchy. This could be crucially important. Say, for example one half of a couple is offered a job in the US and wishes to take their husband/wife/civil partner. Both opposite and same sex marriage will be recognised for immigration purposes, but civil partnership will not (whether opposite sex or same sex). This likely to be mirrored in many other countries.

Whilst civil partnership offers a relationship akin to marriage here in England & Wales, for the international couple marriage is likely to be the better option.