civil partnership as marriages

8/18/2019 Civil Partnership as Marriages

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CIVIL PARTNERSHIPS AS MARRIAGES:

THE EVOLUTION OF MARRIAGE

Navaneeth Krishnan

No.614

5th Semester

NUALS



CONTENTS

1. Introduction

2. Law and Procedure of ivi! Partnershi"• #!i$i%i!it&

• 'ormation

• (e$istration

• )verseas (e!ationshi"

*. 'orma!ities at the %e$innin$ and end of a re!ationshi"

4. Le$a! #ffects of ivi! Partnershi"

• 'inancia! Arran$ements

• hi!dren

• Inheritance and Succession

• +atrimonia! Pro"ert&

• +arita! onfidences

• ,omestic -io!ence

• Name han$in$

5. Annu!!in$ a ivi! Partnershi"

6. #ndin$ of a ivi! Partnershi"

• ,isso!ution

• Nu!!it& se"aration and "resum"tion of death orders/. #ffect of ivi! Partnershi"s

0. ,ifference %etween marria$e and ivi! Partnershi"

. onstitutiona! (e$u!ations A""!ica%!e to SameSe3 Partnershi"s

10. Are ivi! Partnershi"s $ood news

INTRODUCTION

Samese3 coha%itation is %anned or unreco$nied in most of the wor!d. 'ort& &ears a$o same

se3 cou"!es were not !e$a!!& acce"ted in an& countr&. In the !ast thirt& &ears however around

27 of countries have $ranted some ri$hts to samese3 cou"!es ma8in$ them visi%!e to societ&.

9hi!e there are sti!! countries that crimina!ie se3ua! re!ations amon$ two consentin$ adu!ts of



the samese3 other countries are a!!owin$ samese3 cou"!es to marr& and form a fami!&.

:etween those two "o!es man& countries have moved or are movin$ from tota! re;ection of

samese3 re!ationshi"s to acce"tance of some sort. ountries that have decrimina!ied se3ua!

re!ations %etween individua!s of the samese3 have short!& thereafter seen a rise in the "u%!ic

de%ate a%out forma! reco$nition of samese3 cou"!es. At the center of this de%ate is the ro!e of

marria$e. 9hi!e some scho!ars c!aim that marria$e is essentia!!& heterose3ua! and the %asis for

societa! structure others consider the e3c!usion of samese3 cou"!es from marria$e to %e unfair

discrimination. :oth "ositions are re"resented in the re"orts received for the 10th on$ress of

the Internationa! Academ& of om"arative Law

<he stru$$!e for samese3 marria$e wi!! !i8e!& %e the civi! ri$hts issue of this decade. In the !ast

cou"!e &ears the wor!d has seen some remar8a%!e chan$es in this area. In Ar$entina the firstLatin American samese3 weddin$ was "erformed in ,ecem%er 21. Short!& %efore that

Sweden %ecame the seventh countr& to !e$a!ie samese3 marria$e2. In the United States

a!ifornia roi!ed throu$h the $rantin$ and ta8in$ awa& of samese3 marria$e and a!ifornia now

faces cha!!en$es to Pro"osition 0 in federa! court *. At the same time 2 saw the enactment of

a draconian !aw in Ni$eria which im"oses severe and sometimes even ca"ita! "unishment on

samese3 cou"!es who dare en$a$e in affection4. 2 a!so saw a stron$ =uman (i$hts 9atch

and Amnest& Internationa! res"onse to that Ni$erian !aw 5. In the United States the voters in

1 Michael Winter, 2 Argentine Men Wed in Latin America's First Gay Marriage, USA Today, Dec. 2, 2!!",htt#$%%content.&satoday.com%comm&nities%ondeadline%#ost%2!!"%12 %2argentinemen(edin)rstgaymarriageinlatinamerica%1.

2 S(eden Allo(s SameSe* Marriage, ++ -e(s, A#r. 2, 2!!",htt#$%%ne(s.c.co.&/%2%hi%0"0".stm

3 Ma&ra Dolan, 4ro#. Trial to 5ncl&de Un#recedented Testimony, L.A. Times, 6an.11, 2!1!, htt#$%%articles.latimes.com%2!1!%7an%11%local%lame#ro#trial112!1!7an11.



+aine denied samese3 cou"!es the ri$ht to marr&6 whi!e New =am"shire %e$an a!!owin$ $a&

marria$es at the start of 21. At the !e$is!ative !eve! some ninet& U.S. re"resentatives "ro"osed

a com"!ete re"ea! of the federa! ,efense of +arria$e Act >?,)+A?@ and severa! federa!

!awsuits were fi!ed thus "ushin$ the issues inevita%!& toward the Su"reme ourt.

A!! !e$a!!& so"histicated societies have re$u!ated coha%itation. It has not %een individua!s

themse!ves who have restricted their se3ua! encounters %ut rather each communit& has restricted

the t&"es of re!ationshi"s "u%!ic!& acce"ted. A!thou$h modern !e$a! s&stems have functioned on

the %asis of a se"aration %etween a "u%!ic and a "rivate rea!m the wa& that the "rivate rea!m has

%een sha"ed has %een an entire!& "u%!ic affair. ountries not on!& have traditiona!!& determined a

set of !e$a!!& va!ua%!e re!ationshi"s %ut the& have a!so defined duties and ri$hts for each "art&

within a re!ationshi". In this conte3t the "aradi$m of the !e$a!!& va!ued re!ationshi" has %eenmarria$e.

A samese3 cou"!e cannot marr&/. <he& can however enter a civi! "artnershi". <his status was

created %& the ivi! Partnershi" Act 24 >PA 24@. A civi! "artnershi" is a re!ationshi"

%etween two "eo"!e of the same se3 formed when the& re$ister as civi! "artners of each other

-igeria$ 8e7ect 9Same Gender9 Marriage +an, :&m. 8ts. Watch, 6an. 2;,

2!!", htt#$%%(((.hr(.org%en%ne(s%2!!"%!1%2;%nigeriare7ectsamegendermarriagean.

Letter to -igerian 4resident <ar'Ad&a 8egarding the 9Same Gender Marriage +ill',9:&m. 8ts. Watch, 6an. 23, 2!!", htt#$%%(((.hr(.org%en%ne(s%2!!"%!1%23%letternigerian#residentyarad&aregardingsamegendermarriage ill.

; =e>in Miller ? 6&dy :arrison, Gay Marriage 8e#ealed in Maine, +angor Daily

-e(s, -o>. , 2!!", htt#$%%(((.angordailyne(s.com%detail%12!.html .

0 Wintem&te and Andenaes @2!!1 #ro>ide a >ery &seB&l collection oB essays on thelegal reg&lation oB same se* relationshi#s.

http://www.hrw.org/en/news/2009/01/26/nigeria-reject-same-gender-marriage-ban


http://www.hrw.org/en/news/2009/01/23/letter-nigerian-president-yaradua-regarding-same-gender-marriage-


http://www.bangordailynews.com/detail/128048.html



http://www.bangordailynews.com/detail/128048.html





which ends on!& on death disso!ution or annu!ment. Part 2 of the Act re!ates to #n$!and and

9a!es Part * to Scot!and and Part 4 to Northern Ire!and. ivi! "artnershi"s in the United

Kin$dom $ranted under the ivi! Partnershi" Act 24 $ive samese3 cou"!es ri$hts and

res"onsi%i!ities identica! to civi! marria$e. ivi! "artners are entit!ed to the same "ro"ert& ri$hts

as married o""ositese3 cou"!es the same e3em"tion as married cou"!es on inheritance ta3

socia! securit& and "ension %enefits and a!so the a%i!it& to $et "arenta! res"onsi%i!it& for a

"artners chi!dren as we!! as res"onsi%i!it& for reasona%!e maintenance of ones "artner and their

chi!dren tenanc& ri$hts fu!! !ife insurance reco$nition ne3t of 8in ri$hts in hos"ita!s and others.

<here is a forma! "rocess for disso!vin$ "artnershi"s a8in to divorce.

As we sha!! see in man& wa&s civi! "artnershi"s are Bmarria$e in a!! %ut nameC. <he President of

the 'ami!& ,ivision in Wilkinson v Kitzinger

8

has e3"!ainedD

Parliament has taken steps by enacting the CPA to accord to same-sex relationships effectively

all the rights, responsibilities, benefi ts and advantages of civil marriage save the name, and

thereby to remove the legal, social and economic disadvantages sffered by homo-sexals

!ho!ish to "oin stable long-term relationships#

Law and Procedure of Civil Partnership

Eligibility

ivi! "artnershi"s can on!& %e entered into %& samese3 cou"!es . )""ositese3 cou"!es can

either marr& or coha%it. A civi! "artnershi" is created when the "arties si$n a civi! "artnershi"

document Bat the invitation of and in the "resence of a civi! "artnershi" re$istrarC and Bin the

C2!!; EW: 2!22 @Fam at #ara 121.

" i>il 4artnershi# Act 2!! @4A 2!!, s 1@1.



"resence of each other and two witnesses1C. <here are other restrictions on who can enter a civi!

"artnershi"D the "arties must not %e married or a!read& a civi! "artnerE the& must %oth %e over the

a$e of 16 and the& must not %e within the "rohi%ited de$rees of re!ationshi"11. <hese restrictions

match the eFuiva!ent to the ones found in marria$e. 9here "ermitted civi! "artnershi"s ma& %e

re$istered at :ritish em%assies or consu!ates$enera!. As of )cto%er 2 the :ritish #m%ass& in

'rance !isted twent& ei$ht as %ein$ authoried to ho!d civi! "artnershi"s. 'or such re$istrations at

!east one "artner must %e a :ritish citien. )verseas cou"!es wishin$ to re$ister their "artnershi"

in the UK must reside in the countr& for seven da&s "rior to a""!ication for the "artnershi" and

wait a further fifteen da&s %efore the civi! "artnershi" ma& %e formed.

For!tio"

In man& wa&s the creation of a civi! "artnershi" is much !i8e a civi! weddin$. <here are two

im"ortant differences however. 'irst in a civi! weddin$ it is the e3chan$e of vows rather than

the si$nin$ of the re$ister which creates the marria$e12. Second!& no re!i$ious services can %e

used whi!e a civi! "artnershi" re$istrar is officiatin$ at the si$nin$ of the re$ister. )f course there

is nothin$ to sto" the cou"!e from havin$ a re!i$ious service after the& have %ecome civi!

"artners. =owever the #Fua!it& Act 211* a!!ows for the creation of re$u!ations that wi!! "ermit

re!i$ious $rou"s to have a civi! "artnershi" as "art of a re!i$ious service. <his reco$nies the fact

that some re!i$ious $rou"s are su""ortive of samese3 re!ationshi"s.

1! 4A 2!!, s 2@1.

11 4A 2!!, s 3.

12 retney @2!!;a$ 23.

13 E&ality Act 2!1!, s 2!2.



R#gi$tr!tio"

A civi! "artnershi" is formed once %oth individua!s have si$ned the civi! "artnershi" document in

the "resence of a re$istrar and two witnesses. Under the standard "rocedure %efore re$istration

each "art& wi!! usua!!& have to $ive notice to the a""ro"riate authorit&. #ach "art& must have

resided in the UK ;urisdiction in which the& intend to re$ister >#n$!and and 9a!es or Northern

Ire!and@ for at !east seven da&s immediate!& "recedin$ the $ivin$ of notice and there wi!! in most

cases %e a fifteenda& waitin$ "eriod after notice is $iven. A civi! "artnershi" in 9a!es >9e!shD

Partneriaeth Sifi!@ ma& %e conducted either in #n$!ish or "rovided that re$isterin$ "arties the

re$istrar and witnesses are a%!e to understand and write in the 9e!sh !an$ua$e in 9e!sh. ivi!

Partnershi" documents issued in 9a!es >re$ard!ess of the re$isterin$ !an$ua$e@ fo!!ow a

standardised %i!in$ua! #n$!ish and 9e!sh format.

O%#r$#!$ r#l!tio"$&i'$

9here a samese3 cou"!e has re$istered an overseas re!ationshi" which is s"ecified in Schedu!e

2 of the ivi! Partnershi" Act or meet certain $enera! conditions the& are treated as havin$

formed a civi! "artnershi". <he reFuirements can %e found in section 212 and sections 215 to 210of the Act. 'or an overseas re!ationshi" to meet the $enera! conditions it must under the !aw of

the countr& or territor& in which it was formedD

• %e e3c!usive in nature >i.e. the !aw must not "ermit a "erson to %e in a civi! or marita!

re!ationshi" with more than one "erson@E

• %e indeterminate in duration >this wou!d e3c!ude an arran$ement where%& the "arties

a$reed to !ive to$ether for a fi3ed "eriod of time@E and

• resu!t in the "arties %ein$ treated as a cou"!e >thus e3c!udin$ !oca! re$isters which have

no !e$a! effects under stateG"rovincia! or nationa! !aw@.

FORMALITIES AT THE E!I""I"! A"# E"# OF A RELATIO"SHIP



<he !aw c!ose!& re$u!ates the %e$innin$ and end of a marria$e or civi! "artnershi". It sets out

certain forma!ities that must %e com"!ied with in order for a !e$a! marria$e or civi! "artnershi" to

start and it on!& ends when the court $rants a decree a%so!ute of divorce or a disso!ution. An

unmarried coha%itin$ re!ationshi" can %& contrast %e$in or end without an& notification to an&

"u%!ic %od&. 9hi!e ever& marria$e and civi! "artnershi" is centra!!& re$istered there is no such

record of coha%itation. )ne conseFuence of these forma!ities is that a!thou$h the !aw can restrict

who can enter marria$e or civi! "artnershi" there is o%vious!& no restriction as to who ma&

coha%it H there is nothin$ to sto" an& num%er of men or women unmarried or married from

coha%itin$.

It is eas& to overestimate the "ractica! im"ortance to the "arties of the !e$a! forma!ities at the

%e$innin$ and end of a re!ationshi". <he !e$a! reFuirements of marria$e or civi! "artnershi" arenot "articu!ar!& difficu!t to com"!& with and the !e$a! forma!ities ta8e u" !itt!e time when

com"ared with the non!e$a! tra""in$s that often accom"an& marria$e or civi! "artnershi" which

ta8e u" much more of the mone& and attention of the "arties. Simi!ar!& in re!ation to se"aration

a!thou$h divorce or disso!ution does inc!ude !e$a! forma!ities when com"ared with the

"a"erwor8 and "ractica! arran$ements of the endin$ of a !on$term re!ationshi" the !e$a!

forma!ities of divorce or disso!ution can %e of minor im"ortance. <he "a"erwor8 concerned over

for e3am"!e se"aratin$ ;oint %an8 accounts reso!vin$ the occu"ation of the home dea!in$ with

the mort$a$e or tenanc& chan$in$ arran$ements over e!ectricit& $as %i!!s etc. can ma8e the

forma!ities connected to the divorce or disso!ution itse!f seem sma!!.

L#g!l E((#)t$ o( Ci%il P!rt"#r$&i'$

Fi"!")i!l Arr!"g##"t$

<he "osition of civi! "artners in re!ation to financia! arran$ements mirrors that of s"ouses. 'or instance Section 11 of the +arried 9omens Pro"ert& Act 1002 a""!ies to civi! "artnershi"sE

thus mone& "a&a%!e to a survivin$ "artner under a "o!ic& of !ife assurance no !on$er forms "art

of the deceased "artners estate.



<he !aws $overnin$ wi!!s administration of estates and fami!& "rovisions a!so a""!ies to civi!

"artners as to s"ousesE thus "rovisions $overnin$ financia! re!ief under Part 2 of the +atrimonia!

auses Act 1/* >+A@ and the ,omestic Proceedin$s and +a$istrates ourt Act 1/0 a!so

a""!& to civi! "artnershi"s. <a3 e3em"tions avai!a%!e to s"ouses under s.10 of the Inheritance <a3

Act 104 are avai!a%!e to civi! "artners under the ivi! Partnershi" Act 24. In Scot!and the

centurieso!d s&stem of minimum !e$a! ri$hts to a deceased estate for a widowed s"ouse were

e3"ress!& e3tended to civi! "artners %& section 1*1 of Act.

In an& dis"ute %etween civi! "artners as to tit!e or "ossession of "ro"ert& either "artner ma&

a""!& to the ourt which can then ma8e an& order in re!ation to the "ro"ert& inc!udin$ an order

to se!! such "ro"ert&. ontri%utions %& either "artner to "ro"ert& im"rovement are reco$nised if

the contri%utions are su%stantia! and in actua! mone& or mone&s worth.

oha%itin$ cou"!es un!i8e s"ouses or civi! "artners can enter %indin$ coha%itation contracts

which wi!! determine what wi!! ha""en to their "ro"ert& on se"aration 14. =owever care must %e

ta8en in the wordin$ of such contracts. In $tton v %ischon de &eya'( the c!aimant as8ed a firm

of so!icitors to draft a coha%itation contract. Sutton and a Swedish %usinessman +r. Stah!

wished to conduct a BmasterHs!aveC re!ationshi". <he& as8ed that the contract %ac8 this u" %&

confirmin$ that Sutton was to have a%so!ute "ower over Stah! to o%e& him in ever&thin$ he said

on "ain of "unishment and to hand over to Sutton a!! his "ro"ert&. har!es he!d that such a

contract amounted to in effect a contract for se3ua! services. =e saw a 8e& distinction %etween a

contract for se3ua! re!ations outside marria$e which was not enforcea%!e and a contract %etween

"eo"!e who are coha%itin$ in a re!ationshi" which invo!ves se3ua! re!ations. har!es in a

sur"risin$ turn of "hrase stated that Beven a moron in a hurr&C cou!d te!! that the contract in this

case fe!! into the former cate$or& and so was not enforcea%!e.

1 Morgan > :ill C2!!; 3 F8 ;2!

1 C2!! 3 F8 12 C2!! 1 FL8 30.



C&il*r#"

9hen dea!in$ with an a""!ication for disso!ution nu!!it& or se"aration where there is a chi!d in

the fami!& the ourt must consider if it shou!d e3ercise its "owers under the hi!dren Act 10.

Section /2 amends the definition of a chi!d of the fami!& accordin$!&.

)ther amendments were a!so made to eFua!ise the "osition of civi! "artners with that of s"ouses.

ivi! "artners are a%!e to acFuire "arenta! res"onsi%i!ities as a ste""arent under Section /2 of the

Act. <he& ma& a!so a""!& for residence or contact orders. 'urther the ri$ht to a""!& for financia!

"rovision for chi!dren under schedu!e 1 of the 10 act was e3tended to civi! "artners. Ado"tion

"rovisions were amended to treat civi! "artners the same as married cou"!es in :ritain a!thou$h

this does not a""!& to Northern Ire!and at 10 Novem%er 211. <he Northern Ire!and Ado"tion

!aw is due to $o to ;udicia! review in ,ecem%er 21116.

<here used to %e a crucia! distinction drawn %etween B!e$itimateC and Bi!!e$itimateC chi!dren. <his

affected the status of chi!dren and the nature of "arenta! ri$hts over chi!dren. <he !a%e! of

i!!e$itimac& has now %een a%o!ished %& the 'ami!& Law (eform Act 10/ and on!& minor

differences e3ist in the !e$a! "osition of B!e$itimateC and Bi!!e$itimateC chi!dren. =owever there

are sti!! im"ortant differences %etween the !e$a! "osition of married and unmarried fathers. As we

sha!! see one of the 8e& conce"ts of the !aw re!atin$ to "arenthood is "arenta! res"onsi%i!it&.

#ver& mother of a chi!d automatica!!& acFuires "arenta! res"onsi%i!it& for her chi!d %ut the father

of the chi!d wi!! automatica!!& acFuire "arenta! res"onsi%i!it& on!& if he is married to the mother.

An unmarried father ma& acFuire "arenta! res"onsi%i!it& %& %ein$ re$istered as the father on the

chi!dCs %irth certificate !od$in$ at the court a "arenta! res"onsi%i!it& a$reement or the father ma&

a""!& to the court for a "arenta! res"onsi%i!it& order.

<his is a si$nificant difference %etween married and unmarried fathers %ut is of !ess im"ortance

than it mi$ht at first a""ear for two reasons. 'irst the courts have %een ver& wi!!in$ to award

"arenta! res"onsi%i!it& to a father who a""!ies for it. <he second is that in da&toda& issues

1; 9La( sto##ing -5 gay co&#les ado#ting is challenged9. ++ -e(s. 1 -o>emer2!11.



"arenta! res"onsi%i!it& is of !imited im"ortance. +an& unmarried fathers carr& out their "arenta!

ro!e unaware that the& do not have "arenta! res"onsi%i!it&. 9hether or not a father has "arenta!

res"onsi%i!it& is on!& rea!!& of si$nificance when ma;or decisions have to %e made in res"ect of

the chi!d such as whether a chi!d shou!d have a medica! o"eration.

I"&#rit!")# !"* S+))#$$io"

9here a "erson dies without havin$ made a wi!! the "erson is intestate. In such a case the

deceasedCs s"ouse or civi! "artner wi!! %e entit!ed to some or a!! of the estate de"endin$ on the

a""!ication of various ru!es. =owever an unmarried "artner of the deceased is not automatica!!&

entit!ed to an intestate estate. A!! an unmarried "artner can do is to a""!& under the Inheritance

>Provision for 'ami!& and ,e"endants@ Act 1/5 for an order that in effect a!ters the intestac&

ru!es and awards them a "ortion of the estate. So a %ereaved unmarried "artner must a""!& to the

court in order to %e "ut in the same "osition as the %ereaved s"ouse if his or her "artner is

intestate.

M!trio"i!l Pro'#rty

<he 'ami!& Law Act 16 "rovides married cou"!es and civi! "artners with home ri$hts which

"rovide a ri$ht to occu"& the matrimonia! home

1/

. <here are a!so s"ecia! "rovisions re!atin$ tofami!& "ro"ert& durin$ %an8ru"tc& and "ension ri$hts which we wi!! discuss !ater. <hese

"rovisions do not a""!& to coha%itants who are $iven no "articu!ar "rotection on %an8ru"tc&.

M!rit!l Co"(i*#")#$

ommunication %etween s"ouses used to %e su%;ect to s"ecia! "rotection so that a s"ouse who

disc!osed confidentia! information a%out the other cou!d %e found in %reach of confidence.

=owever the !aw on confidentia! information has now deve!o"ed so that it covers coha%itants. It

10 Ste#hens > A>ery C1" 1 h " A > + @a com#any C2!!2 1 F8 3;"



has even %een found that there cou!d %e confidentia! re!ations %etween a hus%and and the "erson

he was havin$ an adu!terous re!ationshi" with10.

Do#$ti) Viol#")#

+arried cou"!es civi! "artners and coha%itants are associated "ersons and so can a""!& for non

mo!estation in;unctions. oha%itants can a!so a""!& for occu"ation orders a!thou$h if the

a""!icant does not have "ro"ert& ri$hts in the "ro"ert& she wi!! %e treated !ess favora%!& than she

wou!d have %een had she %een married or a civi! "artner 1.

N!# C&!"gi"g

<here is no reFuirement that either "art& must chan$e their surname u"on enterin$ a civi!

"artnershi". =owever man& cou"!es wish to fo!!ow marita! traditions and see8 to chan$e their

surname to that of either "artner or com%ine their names to ma8e a dou%!e%arre!!ed surname.

<his chan$e can %e made after the civi! "artnershi" is re$istered and authorities wi!! acce"t a

certificate of civi! "artnershi" as evidence of name chan$e e.$. when a""!&in$ for a "ass"ort or a

drivin$ !icence. In Scot!and names need not %e chan$ed to %e considered va!id >deeds "o!! do

not e3ist under Scots !aw@ thou$h some #n$!ish%ased com"anies ma& sti!! as8 for "roof from an

officia! such as a ustice of the Peace. ivi! "artners of ma!e "eers or 8ni$hts do not receive acourtes& tit!e to which the s"ouse of a "eer or 8ni$ht wou!d %e entit!ed.

A""+lli"g ! Ci%il P!rt"#r$&i'

A civi! "artnershi" can %e void or voida%!e. It wi!! %e void if 2D

1 > A+ C2!! 2 F8 !. See also 6ohn Terry @#re>io&sly HL-SI > 4ersonsUn/no(n C2!1! EW: 11" @J+.

1" Ghaidan > GodinMendoKa C2!! 2 F8 1.



• the "arties were not of the same se3E

• either of them was a!read& a civi! "artner or marriedE

• either of them was under the a$e of 16E

• the "arties were within the "rohi%ited de$rees of re!ationshi"E or

• the& %oth 8new that certain 8e& forma!it& reFuirements had not %een com"!ied with. 266

A civi! "artnershi" wi!! %e voida%!e on the fo!!owin$ $rounds21D

• either of them did not va!id!& consent to its formation >whether as a resu!t of duress

mista8e unsoundness of mind or otherwise@E

• at the time of its formation either of them thou$h ca"a%!e of $ivin$ a va!id consent was

sufferin$ >whether continuous!& or intermittent!&@ from a menta! disorder of such a 8ind

or to such an e3tent as to %e unfitted for civi! "artnershi"E

• at the time of its formation the res"ondent was "re$nant %& some "erson other than the

a""!icantE

• an interim $ender reco$nition certificate under the Jender (eco$nition Act 24 has

after the time of its formation %een issued to either civi! "artnerE

• the res"ondent is a "erson whose $ender at the time of its formation had %ecome the

acFuired $ender under the 24 Act.

E"*i"g o( ! Ci%il P!rt"#r$&i'

ivi! "artnershi"s wi!! end on the death of the "art& or on an order for disso!ution >the eFuiva!ent

of divorce@. <he !aw on disso!ution of a civi! "artnershi" is ver& simi!ar to the !aw on divorce.

'or now it is worth notin$ that adu!ter& is a fact which esta%!ishes the $round for divorce %ut

not disso!ution. Section */>1@ of the Act "rovides for the ma8in$ of disso!ution nu!!it&

2! 4A 2!!, s "

21 4A 2!!, s !.



se"aration and "resum"tion of death orders. <hese "rovisions %road!& mirror those $overnin$

marria$e.

Di$$ol+tio"

No a""!ications for disso!ution ma& %e made within one &ear of the formation of the civi!

"artnershi" e3ce"t in Scot!and. Li8e marria$e irretrieva%!e %rea8down is the on!& $round on

which the court ma& ma8e a disso!ution order. A!so Section 44 "rovides that the ourt ma& not

ma8e such an order un!ess the a""!icant satisfies as to certain facts which are the same as those

for divorce under the +atrimonia! auses Act 1/* >+A@ e3ce"t that adu!ter& cannot %e re!ied

on for a civi! "artnershi" disso!utionD the res"ondents %ehaviour 2 &ears se"aration and consent

2 &ears desertion or 5 &ears se"aration. If the a""!icant satisfies the court in this res"ect the

court must ma8e a disso!ution order un!ess it is not convinced %& the evidence that the

"artnershi" has indeed %ro8en down irretrieva%!&. <he +A section 5 defence is a!so avai!a%!e.

9hi!e adu!ter& cannot %e cited as a reason in itse!f for disso!vin$ a civi! "artnershi" it cou!d %e

cited as an e3am"!e of unreasona%!e %ehaviour.

As with the %rea8down of a marria$e the court wi!! have "owers to "rovide financia! re!ief u"on

disso!ution of a ivi! Partnershi". <he court ma& ma8e +aintenance and !um" sum orders

)rders for Sa!e Pension Sharin$ )rders or Pro"ert& Ad;ustment )rders22

.

N+llity, S#'!r!tio" !"* Pr#$+'tio" o( D#!t& Or*#r$

A nu!!it& order is one which annu!s a void or voida%!e civi! "artnershi". Section 4 of the Act

"rovides that a civi! "artnershi" is void on $rounds of ine!i$i%i!it& to re$ister if the "artiesD

disre$arded certain reFuirements as to the formation of the "artnershi" where an& "art& is a

minor where an& "erson whose consent is reFuired >e.$. a "arent@ has for%idden the formation of

the "artnershi" and the court has not $iven its consent. 9here a civi! "artnershi" is voida%!e

22 9i>il 4artnershi#s Formation and Dissol&tion9. F&rley 4age



a""!ications for nu!!it& orders are su%;ect to the %ars of time 8now!ed$e of defect and

a""ro%ation.

A "resum"tion of death order disso!ves the "artnershi" on the $rounds that one of the "artners is

"resumed to %e dead whi!e a se"aration order "rovides for the se"aration of the "arties. <hese

orders are $overned %& Sections 55 and 56 of the Act and the& !ar$e!& mirror the "osition for

married cou"!es.

T&# E((#)t o( Ci%il P!rt"#r$&i'

:aroness =a!e in $ecretary of $tate for Work and Pension v % )* e3"!ained that civi! "artnershi"s

have Bvirtua!!& identica! !e$a! conseFuences to marria$eC. i!! +anthor"e and #!ia%eth Price

have ar$ued that a!thou$h civi! "artnershi" has ena%!ed samese3 cou"!es to have the re!ationshi"

%etween themse!ves forma!!& reco$nised their re!ationshi" with their "artnerCs chi!dren or wider

fami!& is not reco$nised in !aw or socia!!& to the same e3tent as occurs in marria$e 24. In

"articu!ar a civi! "artner of a woman ma& not %e in as stron$ a "osition as a hus%and in re!ation

to their chi!dren.

Di((#r#")# -#t##" M!rri!g# !"* Ci%il P!rt"#r$&i'

<he idea %ehind introducin$ civi! "artnershi"s was not on!& to reco$nie the %ond %etween same

se3 cou"!es %ut a!so to ensure that the same !e$a! ri$hts were $ranted to them as married cou"!es.

<here is therefore ver& !itt!e difference %etween the !e$a! ri$hts $iven to samese3 cou"!es and

that of non samese3 cou"!es that enter into a civi! "artnershi" or marria$e.

23 C2!!; 1 F8 "0 at #ara "".

2 Manthor#e and 4rice @2!!.



ivi! "artnershi"s have unsur"risin$!& risen in the UK since their introduction as the& "rovide a

sta%!e environment and offer certain ri$hts and "rotection that wou!d not %e there if the

"artnershi" was not entered into. It does invo!ve si$nificant res"onsi%i!it& ;ust as marria$e does

"articu!ar!& in terms of financia! "rovisions for the other "artner and an& "ossi%!e chi!drenE

whi!st there are simi!ar "rovisions in "!ace re$ardin$ divorce shou!d the "artnershi" need to %e

%rou$ht to an end.

<here is essentia!!& ver& !itt!e difference !e$a!!& %etween a marria$e and a civi! "artnershi". <he

difference e3ists "rinci"a!!& due to "rotests from re!i$ious $rou"s a%out reco$nisin$ samese3

cou"!es and heterose3ua! cou"!es in the same wa&. <herefore the main difference %etween a

marria$e and a civi! "artnershi" is re!i$ion. ,urin$ the civi! "artnershi" ceremon& there wi!! tend

not %e an& reference to re!i$ion or church as there are sti!! sectors of re!i$ious societ& stron$!&o""osed to samese3 marria$e. If &ou are considerin$ enterin$ into a civi! "artnershi" and want

to 8now more a%out &our ri$hts and res"onsi%i!ities under it &ou shou!d contact a !oca! fami!&

!aw so!icitor

As Ste"hen retne& e3"!ains the care ta8en %& Par!iament to ensure that marria$e and civi!

"artnershi"s were treated in the same wa& is revea!ed %& the fact that the PA 24 amends

!e$is!ation as diverse as the #3"!osive Su%stances Act 100* and the Law of Pro"ert& Act 12525.

<he most im"ortant differences %etween marria$e and civi! "artnershi" are the fo!!owin$D

• <he forma!ities at the start of the re!ationshi"D in a civi! "artnershi" it is the si$nin$ of

the re$ister rather than the e3chan$e of vows which creates the !e$a! re!ationshi".

'urther un!i8e a marria$e a civi! "artnershi" ceremon& cannot contain a re!i$ious

service26. =owever section 22 of the #Fua!it& Act 21 a!!ows for re$u!ations to %e

2 retney @2!!;a$ 2".

2; 5nterestingly, a s&r>ey oB samese* co&#les Bo&nd that a signi) cant minority(anted a religio&s element inthe ci>il #artnershi# celeration$ 8eadhead @2!!;.



"assed which wi!! "ermit re!i$ious $rou"s to have civi! "artnershi" ceremonies in the

conte3t of a re!i$ious service.

• <he nonconsummation $rounds and venerea! disease $round are not "resent as a $round

of voida%i!it& in civi! "artnershi"s whi!e the& are in marria$e.

• Adu!ter& is not a fact esta%!ishin$ the $round for disso!ution of a civi! "artnershi"

a!thou$h it is for divorce.

• If a woman receives assisted re"roductive services her hus%and wi!! %e re$arded as the

father of the chi!d. =er civi! "artner wou!d not %e re$arded as a "arent of the chi!d2/.

<he e3act moment when the status is created is of no "ractica! re!evanceE nu!!it& is ver& rare!&

used and is main!& of si$nifcance for those with stron$ conservative re!i$ious %e!iefsE and in a

case of adu!ter& a civi! "artner can re!& on a %ehavior $round for disso!ution. 2/4 Another

res"onse is to %e more c&nica!. <he !ac8 of reference to adu!ter& and nonconsummation

demonstrates the !awCs fai!ure to reco$nise that $a& se3 is rea! se3. :aroness Scot!and a

Jovernment minister at the time of the "assin$ of the PA e3"!ainedD B<here is no "rovision for

consummation in the ivi! Partnershi" :i!!. 9e do not !oo8 at the nature of the se3ua!

re!ationshi" it is tota!!& different in nature.C <he co&ness a""arent in the JovernmentCs

e3"!anation that it was not "ossi%!e to "roduce a samese3 eFuiva!ent to consummation and

adu!ter& ma& indicate a re!uctance to acce"t samese3 re!ationshi"s at fu!! va!ue.

Co"$tit+tio"!l R#g+l!tio"$ A''li)!bl# to S!#/S# P!rt"#r$&i'$

<he human ri$hts $uarantees contained in the #uro"ean onvention on =uman (i$hts >?the

onvention?@ >insofar as the& can %e descri%ed as ?constitutiona! re$u!ations?@ are direct!&

enforcea%!e in the United Kin$dom in the manner descri%ed a%ove. <hese $uarantees "rovide

su""ort for the !e$a! s&stems within the UK >and "articu!ar!& those with devo!ved !e$is!atures@

deve!o"in$ ru!es that avoid discrimination %etween samese3 and o""ositese3 cou"!es. <he

artic!es of the onvention most re!evant here are artic!es 0 12 and 14. Artic!e 0 $uarantees theri$ht to res"ect for "rivate and fami!& !ifeE artic!e 12 $uarantees the ri$ht to marr& and found a

20 The o&rt oB A##eal recognised this in 8e G @hildren@8esidence$ SameSe*4artner C2!!; 1 F8 ;1.



fami!&E and artic!e 14 "rovides that ?<he en;o&ment of the ri$hts and freedoms set forth in this

onvention sha!! %e secured without discrimination on an& $round such as se3 race co!our

!an$ua$e re!i$ion "o!itica! or other o"inion nationa! or socia! ori$in association with a

nationa! minorit& "ro"ert& %irth or other status.? Since 1 it has %een acce"ted that artic!e 14

inc!udes se3ua! orientation as one of the "rohi%ited $rounds of discrimination >see "art 12@. <he

reference in artic!e 0 to ?"rivate !ife? has %een used in con;unction with artic!e 12 to ensure that

"ersona! re!ationshi"s are re$u!ated without distinction %ased on se3ua! orientationE so far

however the #uro"ean ourt has hesitated to %ase an& of its se3ua! orientation decisions on the

reference in artic!e 0 to ?fami!& !ife? focusin$ instead on ?"rivate !ife.? )n!& in , + and v#

nited Kingdom)8 is it im"!icit that a re!ationshi" %etween two "ersons of the same $ender

;oint!& %rin$in$ u" their chi!dren en$a$es ?fami!& !ife? for the "ur"oses of artic!e 0 >thou$h this

is o%scured %& the fact that the cou"!e was "resented to the wor!d as an o""ositese3 cou"!e one

of the "arties %ein$ trans$ender@. In $chalk and Kopf v# Astria >a""!ication No *141G4@ and

Chapin and Charpentier v# .rance >a""!ication no 410*G/@ the #uro"ean ourt has %een

direct!& as8ed to inc!ude samese3 cou"!es within ?fami!& !ife? for the "ur"oses of artic!e 0 and

its decision in these cases is awaited.

Artic!e 12 "rotects the ri$ht to marr& and found a fami!&. <his has not &et %een defined in a wa&

that is inc!usive of samese3 cou"!es marr&in$ and indeed the #uro"ean ourts ;uris"rudence is

"resent!& hosti!e to samese3 marria$e. <he artic!e is "erha"s the !east ri$orous!& ana!&sed in the

who!e of the onvention and insofar as the #uro"ean ourt of =uman (i$hts has attem"ted to

$ive $uidance as to its meanin$ the assum"tion has %een made that ?the ri$ht to marr& and found

a fami!&? refers to ?traditiona! marria$e? that is to sa& marria$e invo!vin$ an o""ositese3

cou"!e. <his has %een affirmed rather than cha!!en$ed in a series of cases invo!vin$ trans$ender

"ersons who have sou$ht >u!timate!& successfu!!&@ to %e reco$nised in their new $ender for the

"ur"oses of contractin$ what wou!d then %e an o""ositese3 marria$e. As stated in &ees v#

nited Kingdom)/ D

2 (1997) 24 E:88 13



01n the Cort2s opinion, the right to marry garanteed by Article '), refers to the traditional

marriage bet!een persons of opposite biological sex# 3his appears also from the !ording of the

Article !hich makes it clear 45**)6 that Article ') is mainly concerned to protect marriage as

the basis of the family# 3hogh the reference to 7biological sex7 can no longer stand in light of

the Cort2s sbseent decision in 9ood!in v# nited Kingdom*: , it remains nlikely that the

Cort !ill extend its nderstanding of article ') beyond 7traditional marriage bet!een persons

of the opposite sex?.

In Parry v# nited Kingdom >a""!ication 42/1G5 20 Novem%er 26@ the #uro"ean ourt

dec!arin$ inadmissi%!e an a""!ication %& a cou"!e whose marria$e had to %e converted into a

civi! "artnershi" contrar& to their wishes due to the chan$e of se3 of one of the s"ouses

T&# Fir$t Ci%il P!rt"#r$&i'$

<he first civi! "artnershi" formed under the ivi! Partnershi" Act 24 too8 "!ace at 11D J+<

5 ,ecem%er 25 %etween +atthew (oche and hristo"her ram" at St :arna%as =os"ice

9orthin$ 9est Susse3. <he statutor& 15da& waitin$ "eriod was waived as (oche was sufferin$

from a termina! i!!nessD he died the fo!!owin$ da&. <he first "artnershi" re$istered after the

norma! waitin$ "eriod was he!d in :e!fast on 1 ,ecem%er 25.

<he first "artnershi"s formed in Jreat :ritain after the waitin$ "eriod shou!d have occurred on

21 ,ecem%er %ut due to a misinter"retation of the ru!es the first in Scot!and were he!d on 2

,ecem%er. <he first civi! "artnershi"s in #n$!and and 9a!es were formed on 21 ,ecem%er 25

with 9estminster =am"shire =ammersmith and 'u!ham and :ri$hton =ove conductin$ the

!ar$est num%ers.

2" @1"; " E:88 ; #ara. "

3! (2002) 35 EHRR 447



Unusua!!& the onehour re$istration ceremon& of the first "artnershi" in the count& of ,evon

#n$!and >he!d at )!dwa& +ansion@ was officia!!& witnessed %& the +a&or of <or%a& and his

di$nitaries a hundred internationa! $uests te!evision radio and mem%ers of the "ress. <he ::

te!evision covera$e descri%ed it as a Mweddin$ service Othat was "art of #n$!ish !e$a! histor&Q

and in an interview with one of the cou"!e Peter Scott+or$an re"orted him sa&in$ a%out civi!

"artnershi"D MPeo"!e shou!d not "a& attention to Oa cou"!eCs race re!i$ion or $ender H the&

shou!d %e !oo8in$ at the !ove.?

Ar# )i%il '!rt"#r$&i'$ goo* "#$

Su""orters of the ivi! Partnershi" Act see it as an im"ortant ste" towards reco$nisin$ the

eFua!it& of samese3 re!ationshi"s. It means that samese3 cou"!es can now have effective!& the

same ri$hts and res"onsi%i!ities as married cou"!esE samese3 cou"!es are as worth& of

reco$nition and as socia!!& va!ua%!e as o""ositese3 ones*1. <he Act ensures that samese3

cou"!es need not suffer !e$a! disadvanta$e in the sense that the& can if the& wish have the !e$a!

ri$hts o"en to a married o""ositese3 cou"!e*2. As :aroness =a!e e!oFuent!& e3"!ained in

9haidan v 9odin-%endoza**D

;omosexal coples can have exactly the same sort of interdependent cople relationship as

heterosexals can# $exal <orientation= defines the sort of person !ith !hom one !ishes to have

sexal relations# 1t reires another person to express itself# $ome people, !hether heterosexal

or homosexal, may be satisfied !ith casal or transient relationships# >t most hman beings

eventally !ant more than that# 3hey !ant love# And !ith love they often !ant not only the

31 8eadhead @2!!; Wee/s @2!!.

32 :ale @2!! M&r#hy @2!!.

33 C2!! 2 F8 1 at #ara 12.



!armth bt also the sense of belonging to one another !hich is the essence of being a cople#

And many coples also come to !ant the stability and permanence !hich go !ith sharing a

home and a life together, !ith or !ithot the children !ho for many people go to make a family

1n this, people of homosexal orientation are no different from people of heterosexal

orientation#

<he Jovernment e3"!ained its thin8in$ %ehind the Act in this wa&D

3oday there are thosands of same-sex coples living in stable and committed partnerships#

3hese relationships span many years !ith coples looking after each other, caring for their loved

ones and actively participating in society? in fact, living in exactly the same !ay as any other

family# 3hey are or families, or friends, or colleages and or neighbors# +et the la! rarely

recognises their relationship # # # in so many areas, as far as the la! is concerned, same-sex

relationships simply do not exist# 3hat is not acceptable*@.

<he Universa! ,ec!aration of =uman (i$hts states that ever&one is entit!ed to eFua! treatment

and "rotection a$ainst discrimination inc!udin$ the ri$ht to marr&. Le$a!isin$ same se3

marria$e is the reco$nition that LJ:< "eo"!e are of eFua! worth eFua!!& "art of humanit& and

have the ri$ht to the eFua! va!idation of their !ove. <he same "rinci"!e of eFua!it& a""!ies in the

case of civi! "artnershi"s. =eterose3ua! cou"!es shou!d %e a%!e to have a civi! "artnershi" if the&wish.

3 Women and E&ality Unit @2!!3.



-I-LIOGRAPH2

1. www.$oo$!e.com

2. www.wi8i"edia.or$

*. 1 Am. U.. Jender Soc. Po!& L. *24. www.ava.or$

5. www.!e$a!servicesindia.com

6. American Universit& ourna! of Jender Socia! Po!ic& the Law

/. www.fco.$ov.u8

0. www.maadan.com

. www.civi!"artnershi"info.co.u8

1.heshire and NorthCs Private Internationa! Law

http://www.wikipedia.org/

http://www.avaz.org/

http://www.legalservicesindia.com/

http://www.fco.gov.uk/

http://www.maadan.com/

http://www.civilpartnershipinfo.co.uk/

http://www.wikipedia.org/

http://www.avaz.org/

http://www.legalservicesindia.com/

http://www.fco.gov.uk/

http://www.maadan.com/

http://www.civilpartnershipinfo.co.uk/

civil partnership as marriages

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