by: Janine Byrne

Civil Partnership Act 2004

The Civil Partnership Act 2004 came into force on the 5 December 2005 providing a long overdue legal recognition of same sex couples' rights. Same sex couples now finally have largely the same legal rights as that of heterosexual married couples. However, there does appear to be 2 areas where the legal rights of civil partners and married couples differ.

Dissolution 

The grounds for dissolving a civil partnership are the same as those for dissolving a marriage with one exception - adultery is not a ground for dissolution in a civil partnership unlike in marriage cases.

Pre-Partnership Agreements

Pre-nuptial agreements have been available for many years but it would seem that only the most wealthily couples who intend to marry avail themselves of this agreement, and it there appears to be little encouragement from legal forums to use them. Conversely, with the introduction of Civil Partnerships, much emphasis has been placed on entering into a Pre-Partnership Agreement.

The Pre-Partnership agreement has been extant for many years now. Previously referred to as 'Cohabitation agreements' it was considered a useful document to have where couples - both same sex and heterosexual - decided to live together. More often than not however, people never knew of the existence of such a document, as is probably the case today. 

With the introduction of civil partnership rights, much emphasis has been placed on having such an agreement. The document should be entered into prior to registering the partnership, and is designed to deal with how the couple wish to deal with financial issues in the event that the partnership is dissolved. 

The Law Society of England and Wales has argued in its literature that whilst Pre-Partnership Agreements - like pre-nuptial agreements - are not legally binding, with the courts usually deciding to split assets 50/50 on divorce pre-partnership agreements ought to be considered as the law will treat civil partnerships in the same manner as divorce.

Tax & Wills Implications

Civil partners will be treated the same as married couples for tax purposes. Thus, all the same inheritance tax exemptions available to married couples will also be available to civil partners. Such exemptions will include the Nil Rate Band allowance (currently £275,000) and the 'spouse' exemption whereby all transfers between spouses are exempt from inheritance tax and will also be the case with civil partners. (For more detailed advice on inheritance tax exemptions see Inheritance Tax).

The other implication of entering into a Civil Partnership from a Wills perspective, is that any existing will shall be invalidated upon registering the partnership. The extant Will shall automatically be revoked, and a new Will should be drafted.

If you wish to make a Will in expectation or contemplation of entering into a civil partnership - or marriage for that matter - specific clauses will need to be drafted into the Will to ensure that it remains valid after entering the partnership/marriage.

Thankfully the law relating to Civil Partnerships is on a very similar footing to that of marriage, thus matters are not too complicated. As with advice given to married couples, making a Will is important as you should not assume that your spouse/partner will inherit your share, and it may well be that specific clauses will need to be drafted into Wills for civil partners.