A heterosexual couple from London who were seeking to have the law changed have today been told they are not allowed to enter into a civil partnership with one another.

The three court of appeal judges ruled two to one against allowing the couple to become civil partners. However, all three judges agreed that the discrimination against heterosexual couples by denying them the right to enter into civil partnerships, could not last indefinitely, as there was a potential human rights breach.

The couple intend to appeal to the Supreme Court.

So why were they seeking to have a civil partnership?

The couple have stated that they wished to have legal recognition of their seven-year relationship but that marriage is not suitable for them.

The Same Sex Couples Marriage Act extended the right to marry to gay couples, who can now choose between civil partnership and marriage. The couple contend that the same choice should be available to all couples, regardless of sexual orientation.

If they choose not to marry, currently their only other legal choice is cohabitation, unless they are in the Isle of Man, which is currently the only part of the UK to offer civil partnerships to both heterosexual and same sex couples and where in October 2016, a heterosexual couple from London became the first in the UK to enter a civil partnership..

For heterosexual couples who do not wish to get married because of the political, religious and social considerations of being in a marriage, Civil Partnership would provide the same legal and financial protections as marriage.

As there is no such thing as common law marriage, couples who cohabit do not have the same protection or tax breaks as married couples.

The legal position just now

With the enactment of the Civil Partnership Act in December 2005 and the Family Law (Scotland) Act in May 2006, marriage is no longer the only form of legally recognised relationship.  There are 3 different types of legally recognised relationships:- marriage, civil partnership and cohabitation.  With these different relationships come differing rights and responsibilities which will effect people entering into these relationships both during life and after death.

Marriage/Civil Partnership

As soon as a couple enter into a marriage or civil partnership they are automatically given a long list of rights and responsibilities.

On the death of a husband, wife or civil partner their surviving spouse or civil partner is entitled to prior and legal rights as laid down in the Succession (Scotland) Act 1964. Where a spouse or civil partner dies without leaving a Will, the surviving spouse or civil partner is entitled to prior rights (subject to limits) in relation to property, furniture and cash.

Once prior rights have been satisfied, the surviving spouse or civil partner is entitled to legal rights i.e. one half of the deceased’s net moveable estate if no surviving children or representatives, or one third if there are surviving children or representatives of the deceased.  

If the deceased spouse or civil partner dies having left a Will, the surviving spouse or civil partner will not be able to claim prior rights and will only be entitled to claim legal rights as above.  However, they may wish not to do so if they are provided for in the Will.  They cannot claim legal rights and their entitlement under the Will.

Married couples and civil partners automatically benefit from certain tax advantages.  For instance, transfers between spouses or civil partners in lifetime, or on death, will generally be exempt from inheritance tax.  

However, there are also some disadvantages e.g. a married couple or civil partners are only permitted to have one main residence for capital gains tax purposes.

Cohabitation

The Family Law (Scotland) Act 2006 came into force on 4 May 2006. It makes significant changes to the law relating to couples who live together.

The Act aims to provide safeguards for cohabitants without going so far as to award automatic rights and responsibilities to couples who live together and who have deliberately chosen not to marry.

The Act is drafted in such a way that a cohabiting couple must apply to the court for their rights to be activated.  This will only be done after the need for these rights has occurred i.e. the separation of cohabitants or the death of a cohabitant. 

Who are Cohabitants?

The Act defines a cohabitant as a person who is (or was) living with another person as if they were husband and wife, or as civil partners. Therefore the Act applies to both same sex and mixed sex couples.

In determining whether a person is a cohabitant, the length and nature of the cohabitation and the extent to which one cohabitant is financially dependent on the other, are factors which may be taken into account.

Financial provision where Cohabitation ends otherwise than by death

The Act makes provisions for when cohabitants separate.  A cohabitant can apply to the court for an order to be made in respect of the couple’s property.  The court can make an order requiring one cohabitant to pay a capital sum to the other cohabitant; make an order requiring one cohabitant to pay an amount in respect of any economic burden of caring for a child of the cohabitants; or any interim order as it thinks fit.  

The court must take the following matters into account (1) whether (and, if so, to what extent) one cohabitant has derived economic advantage from contributions made by the other cohabitant and (2) whether (and if so, to what extent) a cohabitant has suffered economic disadvantage in the interests of the other cohabitant or a child of the cohabitants.

Succession

A cohabitant can apply to the Court for payment out of their deceased cohabitant’s net intestate estate i.e. after deduction of Inheritance Tax.  Any prior and legal rights of a surviving spouse (if applicable) would also have to be deducted.

The court may (but does not have to) make a payment of a capital sum, or transfer property.  The court cannot make an order for a sum which would exceed the amount to which the survivor would have been entitled in respect of legal rights and prior rights had the survivor been the spouse or civil partner of the deceased. It is important to note that every decision will be fact specific.

The provisions are not retrospective and only apply to cohabitation which began after the commencement date of the Act (i.e. 4th May, 2006).

Action

The best way for cohabitants to protect themselves is to take positive steps to plan for future events by making Wills and entering into cohabitation contracts.  

By making a Will, cohabitants can properly provide for their partner on death and not leave the decision to the court.  By entering into a cohabitation contract, a couple can decide how they wish their property to be split if they were to separate.

Married couples and civil partners should not leave the passing of their estate to be decided by the laws of intestacy.  If they do this, they could end up with less than half of their deceased spouse or civil partner’s estate.

It remains to be seen whether or when the law will be changed to allow heterosexual as well as same sex couples to enter into Civil Partnerships, but this seems likely, given the comments of the judges in relation to their decision. The appeal to the Supreme Court will be watched with interest by the 72,000 people who have signed an online petition calling for civil partnerships to be open to all.

Blog by Shona Macnaughton, Associate