Wednesday, 1 April 2015
Civil Partnership v Marriage? Some examples of remaining differences
A claim regularly made in the marriage referendum debate is that civil partnership should be sufficient for same sex couples and that there is no need to extend marriage to same-sex couples. Civil partnership certainly provides extensive rights and obligations. It offers equal treatment with marriage, for instance, in the context of taxation, social welfare, pensions, citizenship, immigration, property, domestic violence, and maintenance. Largely equal treatment applies in the context of succession (inheritance) and remedies following dissolution. It delivered a number of vitally important, and in some cases urgently needed protections for same-sex couples.
Civil Partnership differs from marriage, however, in a number of respects. Many of these differences initially related to children being raised by civil partners, though most of these particular differences have been eliminated by the Children and Family Relationships Bill 2015. Other differences in the original Act have been removed by legislation in 2011 and 2014. Nonetheless, a number of differences remain. Here are a few of these:
1. The Name
This might appear trite. Yet, the very fact that a different name is applied to same-sex couples who formalise their union in itself implies that there is something fundamentally different about same-sex couples when compared with opposite –sex couples. While the rules relating to civil partnership are very similar to those applying to marriage, the laws and procedures relating to each are contained in different places, and separate forms, precedents and procedures apply to each union respectively.
2. Constitutional Protection
Civil Partnership does not attract the protection that the Constitution gives to marriage. In particular, civil partners are not a ‘family’ for the purpose of the Constitution. The specific right of autonomy (freedom from state interference) afforded to spouses by Article 41 does not apply to a family made up of civil partners (though each partner has an individual right of privacy which is not as rigorously protected).
Civil partners and their children are not a family for the purpose of the Constitution. For children being raised by civil partners, the protection of the family provisions of the Constitution is thus denied permanently. While this is also the case for cohabiting couples and their children, heterosexual cohabitants may remedy this problem by marrying.
4. Shared/Family Home
Different names are used for the home in which civil partners live – it is called a ‘shared home’ instead of the phrase ‘family home’, which normally applies to two spouses’ home.
5. Shared/Family Home Protection and Desertion
A spouse who does not have an interest in the family home may not object to the disposal of the family home where he or she is in desertion. This rule does not automatically apply to civil partners in desertion though a court may potentially, at its discretion, dispense with the requirement for consent in such cases.
6. Marital Privilege
With some important exceptions, married spouses cannot normally be compelled to give evidence against each other in a court of law. Discussions between spouses are said generally to be ‘privileged’. This entitlement does not extend to civil partners who may be compelled to give evidence against each other even in respect of very intimate matters.
7. Loss of Consortium
A person can sue for what is called ‘loss of consortium’. This arises where his or her husband or wife is injured as a result of another person’s wrong. This right relates to the loss of the spouse’s company, assistance and the loss of sexual relations as a result of the wrong. This entitlement is not available to civil partners.
8. Next of Kin
It is not wholly clear whether next of kin rules apply to civil partners. For the purpose of inheritance, civil partners are treated largely the same as spouses. It is not clear, however, whether civil partners are 'next-of-kin' in a medical context; the 2010 Act does not address this point explicitly. Under the Equal Status Act 2000, civil partners must be treated the same as spouses in relation to the provision of goods and services. Nonetheless, the common law concept of next of kin has not been expressly extended to civil partners. This means that there is at least uncertainty relating to a person’s next-of-kin where they are in hospital. This could lead to uncertainty as to who is 'next-of-kin' where doctors wish to consult the next-of-kin of a civil partner, though again, the Equal Status Act 2000 requires that civil partners should be treated the same as spouses where services are being provided.
9. Insurable interests
A person has an insurable interest in their spouse. A person may also rely on and claim under a life insurance contract made by their spouse or parent where the latter took out the insurance for the benefit of their husband, wife or child. The corresponding position relating to civil partners is unclear.
Legislation that protects engaged heterosexual couples has not been extended to civil partners.
The child of a civil partner has some additional rights on the death of a parent when compared with the child of a spouse. In particular, the child can seek a court order that can eat into the legal right share entitlement and the rights on intestacy of a surviving civil partner, something that is not possible where a person has a surviving spouse.
12. Prohibited Degrees
The rules relating to marrying relatives are different for civil partners when compared to married couples, in some cases more rigorous, but in most other cases less so.
13. Registration process
While the process is largely similar, only state-appointed registrars may officiate at a civil partnership. Even if a particular religious denomination approves of civil partnership and wants to participate, a religious minister is precluded from officiating at a civil partnership. This also means that religious venues for marriage will not be available for civil partnership even where the owners of the venue are happy to provide it for civil partnership. This also means that civil partnerships generally cannot be celebrated outside office hours, Monday through Friday.
14. Judicial Separation
The entitlement to a judicial separation is denied to civil partners. This means that civil partners have to dissolve their civil partnerships in order to avail of court based orders that are available to spouses on judicial separation.
It is easier to exit a civil partnership than a marriage. With marriage, couples have to have been living apart for four out of the previous five years to divorce. By contrast, with civil partnership dissolution, the partners have to live apart for two of the previous three years. The rules relating to the recognition of foreign dissolutions of civil partnership are also significantly different from those applying to foreign divorces.
16. Provision for Reconciliation
To end a marriage, a court must be satisfied that there is no reasonable prospect of reconciliation. Before papers are lodged for divorce, the solicitors for both sides must certify that they have advised their clients on alternatives to divorce. With civil partnership, by contrast, it is technically irrelevant whether the parties are reconcilable. This signals that civil partnership is taken less seriously.
17. Family Home following divorce
Where a court is making orders following divorce, it cannot make an order that affects the family home that either former spouse shares with a new spouse. This protection does not apply following divorce to the shared home a former spouse shares with a new civil partner (though it does apply following civil partnership dissolution).
18. Remedies following dissolution
Where a court is considering granting remedies to civil partners following civil partnership dissolution it must have regard to the duration of the civil partnership and the amount of time they have lived together after civil partnership. On divorce, the court must look to the length of cohabitation of the married couple, with no requirement that that cohabitation must solely be post-marriage.
19. Cohabitation and marriage
A person cannot be treated as a qualified cohabitant if he or she or his or her cohabiting partner is married to another person unless the spouses have living apart from their spouse for at least 4 of the previous 5 years. This restriction does not apply where a cohabitant has a civil partner. The rights of cohabitants’ spouses are protected more rigorously than those of their civil partners in the cohabitation scheme.
A person may rely on and sue on the basis of a contract made for their benefit by a spouse or parent of that person. This does not apply in respect of a contract made for the benefit of a civil partner.
21. Family Home and Bankruptcy
Section 61(4) of the Bankruptcy Act 1988 states that “...no disposition of property of a bankrupt, arranging debtor or person dying insolvent, which comprises a family home within the meaning of the Family Home Protection Act, 1976, shall be made without the prior sanction of the Court, and any disposition made without such sanction shall be void.” This provision does not apply to the shared home of civil partners.