On Wednesday 13 January 2016, Alison Green, Partner at Mackrell Turner Garrett and Head of the Divorce and Family Team, spoke at a panel discussion exploring the opening up of civil partnerships to different sex couples. Other panel members included Tim Loughton MP, former Children’s Minister; Andy Slaughter MP, Shadow Human Rights Minister; Professor Robert Wintermute of Kings College London, Charles Keidan and Rebecca Steinfeld and Laura Cochrane and Jimmy Pearce, both couples who have been affected by the current legislation.
The panel discussion was taking place on the instigation of the campaign calling for Equal Civil Partnerships, Tim Loughton’s Ten Minute Rule Bill which has its second hearing on the 29 January 2016 and a legal challenge by way of judicial review of the current Civil Partnership Act 2004.
The Civil Partnership Act currently only allows same sex couples to form a civil partnership and Charles and Rebecca have commenced the legal process because the current legislation prevents them and many thousands of opposite sex couples from the choice of forming a civil partnership rather than marrying.
Alison Green was asked to participate in the panel discussion and give a legal view as to why the current civil partnership legislation should be extended to different sex couples. There is of course the myth of common law marriage. There is no such thing and what this means is that there are no rights between different sex couples who live together.
Unmarried different sex couples are the fastest growing family type, that growth being 29.7% between 2004 and 2014.
Whilst there are many reasons as to why it would be appropriate to extend the Civil Partnership Act to unmarried different sex couples, there are three legal reasons which are of significant importance
- What happens when a different sex relationship breaks down;
- Inheritance issues;
- Tax issues.
When it comes to relationship breakdown, there is no legislation which governs specifically what happens when an unmarried different sex couple separate. Miss Green provided a practical example of the difficulties that can arise. She has acted for a female client recently in her 50’s whose been with her partner for about 30 years. They lived in a property owned by him and they have a 19 year old daughter living at home and working. The female client works part time. The relationship has broken down and she has been asked to leave what was the family home by her partner and given that the property is not in joint names, she has never contributed financially to it and her partner has never made any promises to her that she can stay there for the rest of her life or that it is her home forever, it is almost impossible for her to make any claim against that property without being able to show one of the above. She has therefore lost her home.
Whilst she has a part time income that is insufficient for her to secure a mortgage and it has over the years not been enough for her to build up any savings. As an unmarried partner, she is unable to make any maintenance claim against her former partner. She is also unable to claim a share of his personal pension that he has contributed to and built up over the last 30 years.
Turning to her daughter, because she is over 18 and working, the mother cannot make any child maintenance claim against the father. If her daughter had been under 18 and in full time education, then she could make a child maintenance claim against the father if he had the ability to pay. Likewise, if the father had the financial capacity, she may also be able to make a claim under Schedule 1 of the Children Act 1989 for capital provision for housing, furniture, a car and such like. However, the wrinkle to that legislation is that when the child finishes education, everything that has been provided by normally the father, reverts to him and the mother is left with nothing. There is also no automatic right to this provision and therefore the mother would need to make a claim against the father and if he failed voluntarily to agree to that claim, then she would need to make an application through the Courts. In the practical example therefore, the client is left with very little compared to what a wife or a civil partner would be left with in similar circumstances.
The second issue is inheritance. If parties are married or in a civil partnership and one party dies without a Will, the survivor under the intestacy rules receives the first £250,000 of the estate absolutely and then depending on the value of the estate and whether there are children, further intestacy rules apply as to how the balance of the estate is distributed. However, in an unmarried different sex couple scenario, there is no automatic right to the survivor to anything. Therefore, a surviving partner would have to approach the Administrators of an estate and make a claim of dependency. If the Administrators refuse to meet that claim voluntarily, then the surviving partner would need to make an application under the Inheritance (Provision for Family and Dependants) Act 1975. Again, the surviving party would need to prove that they were a dependent. Even with a Will, the same issue may arise if the deceased has not provided for the surviving partner. Once again, the surviving partner would need to approach the Executors and if they refuse that approach for a claim for dependency, then a Court application would become necessary. What has to be remembered however is with any Court application in order to get it off the ground, a cost is involved and the surviving partner may not be in a financial position to afford to do that.
The third point is that of tax. Civil partners or married couples benefit from there being no Inheritance Tax or Capital Gains Tax implications of the transfer of assets between them in life or on death. However, unmarried different sex couples living together are classified as unrelated for tax purposes.
What this means is that Capital Gains Tax will arise on the transfers of assets during the life subject to personal allowances. Likewise, Inheritance Tax will arise on the asset transfer on death between parties subject to the current £325,000 exemption
A practical example is therefore one where a man owns a property worth £500,000. He leaves it in his Will to his female partner to whom he was not married. In order to keep that property, she would need to pay Inheritance Tax on £175,000 worth of value in that property at the rate of 40% or it would have to be sold to meet the tax liability. This would not be the case if the parties were married or civil partners.
It is therefore clear from these brief examples how the current lack of applicable law to unmarried different sex couples affects them on relationship breakdown, inheritance and tax issues. All of these would be very readily resolved if the current civil partnership legislation was extended to unmarried different sex couples.
An Oxford University study published in the January issue of Family Law estimates that of all same sex couples who had formed a civil partnership in England and Wales by mid 2015, one in eight had converted that partnership to a same sex marriage by that time; with the implementation of same sex marriage the legislation allowed such conversions of civil partnerships from December 2014. That same paper also referred to the legal status of civil partnerships to opposite sex couples as the way the current law stands, same sex couples of have more legal protection than opposite sex couples who cohabit. The same study suggested that there is a demand for an extension to opposite sex couples but that for the time being, the government has stated that no further legislation will be considered until same sex marriage has become properly established. It seems now that the English legislation is the only legislation in the world to give same sex couples more rights than different sex couples and the experience of other countries who have brought in similar legislations such as Denmark, The Netherlands and New Zealand is not that by bringing in that legislation, there has been a significant reduction in marriage
The ongoing debate and the outcome of the judicial review case is one which will be closely followed by thousands of couples to whom the change in the law would make a massive difference
For more information, please contact Alison Green.
The campaign website address is www.equalcivilpartnerships.org.uk