According to the Office for National Statistics the number of same sex couple families has grown more than 50% since 2015, with more than four times as many same sex married couple families in 2018 compared to 2015.
Regrettably, it is a reality that relationships can break-down. As with heterosexual couples, the steps required to formalise any separation largely depend on the status of the relationship during the time the parties were together.
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Marriage for same sex couples
The Marriage (Same Sex Couples) Act 2013 extended marriage to same sex couples in England and Wales and therefore effectively put same sex marriages on the same legal footing as those of opposite sex.
Unsurprisingly therefore, if a same sex married couple separate and decide to divorce, the process is exactly the same. From April 2022, the changes to the law mean that parties can apply for divorce by stating their marriage has broken down irretrievably without the need to attribute blame to the other, known as no-fault divorce.
Financial settlements determine how assets, and indeed liabilities, are to be divided on divorce. Matrimonial assets include property, pensions, savings and business interests to name a few. The parties’ respective incomes are also relevant. It is only by having a financial settlement that any future financial claims are dismissed, this does not happen automatically on divorce, and therefore a financial settlement gives everyone involved peace of mind moving forwards. Both parties should take legal advice to ensure that any financial settlement they enter into is a fair one.
Civil Partnerships for same sex couples
A civil partnership is a legally registered relationship, the main difference with marriage is that the latter is formed by vows whereas a civil partnership is formed by the signing of a civil partnership document.
If a couple have entered into a civil partnership and choose to separate, they can formally end the relationship by dissolution as oppose to divorce. Both dissolution and divorce are ways to end a legally binding relationship.
As with divorce, you need to have been in a civil partnership for one year before applying for it to be dissolved. The process is fundamentally the same.
Similarly, a civil partner has the same financial claims on dissolution of a civil partnership as a married person in divorce and should protect themselves for the future by entering into a financial settlement as described above.
Just like heterosexual couples the number of same sex couples that choose to live together without entering into a marriage or civil partnership is vastly increasing as it has done over the last couple of decades. Unlike couples who have entered into a marriage or civil partnership there are no formalities that are required when a cohabiting couple bring the relationship to an end.
There is no such thing as a common law marriage in England and Wales and as such the financial claims that either party can bring in such circumstances are much more limited. The guidance falls under ‘civil law’ rather than ‘family law’ despite much clamour for change, this is yet to be forthcoming.
The main asset is often the home the cohabiting couple share and if there is a dispute as to ownership, or indeed interest in the home, then it would be sensible to seek legal advice.
Financial settlements, as approved by the court, are not available to cohabiting couples and their finances can be best resolved by entering into a Separation Agreement. A Separation Agreement sets out your financial arrangements as well as the arrangements for children for example. Although not approved by the court, a Separation Agreement is a deed and creates legal obligations on a party which can be challenged in a court, much the same way as a contract and therefore can protect separating cohabitees for the future.
When a same sex couple separate it can raise some unique additional questions regarding the arrangements for children. A person’s legal rights will differ depending if the children were adopted, born through surrogacy or sperm donation or if one partner had a child from a previous relationship.
Regardless of the status of the relationship, or the relationship to the children, if an amicable resolution can be reached between the parties this will be positive for everyone involved, most importantly the children. Mediation can be a useful tool for reaching any such agreement.
If an agreement can not be reached then it may be necessary to consider if one party holds parental responsibility for the children, which will be dependent on the specific circumstances, or whether parental responsibility can subsequently be obtained through agreement or an application to the court. If you do have parental responsibility, or have permission of the court, then you can apply for a child arrangements order setting out where any children live and otherwise who they spend time with.
How Goughs can help?
Our team of family lawyers at Goughs understand that many people considering separation from marriage, cohabitation or civil partnerships are anxious and have a number of questions and fears regarding their future arrangements. We also understand that each person will have their own unique set of circumstances. All of our meetings and the advice given are confidential.
Our family team offers an initial confidential consultation, free of charge so that we can guide you through these issues and advise on the next steps. To arrange an appointment please click here.