Since 2005, same sex couples have been able to enter into civil partnerships in England and Wales and from July 2013, same sex couples are also now able to marry. Those already in civil partnerships can choose to convert their relationship to a marriage either at a register office or a religious or approved premises where same sex marriages are permitted.
The law was further extended in December 2019 so that persons of opposite sex are also now able to enter into a civil partnership as an alternative to marriage. People who had originally had civil partnership ceremonies in other countries which already permitted opposite sex civil partnerships, such as South Africa, New Zealand and the Netherlands, would also have their partnerships automatically recognised in England and Wales.
There are more than three million opposite-sex couples who live together but choose not to marry for a variety of reasons. Cohabitation does not afford those individuals the same legal rights that an individual would have as a result of a marriage or civil partnership.
Both opposite and same sex couples now have the choice of getting married or entering into a civil partnership. The new legislation allows all couples the same options for formalising their relationships and the opportunity to gain rights, protection and recognition of their relationship.
We are often asked, what is the difference between marriage and civil partnership?
The two regimes are entirely separate and have their roots in different laws
The provision for marriage is set out in the Marriage Act 1949, with same sex marriage introduced in the Marriage (Same Sex Couples) Act 2013.
The provision for civil partnership is set out in the Civil Partnership Act 2004, with opposite sex civil partnership introduced in the Civil Partnership (Opposite Sex Couples) Regulations 2019.
Eligibility to enter into a marriage or a civil partnership is the same
To enter into a marriage or civil partnership, a couple must be:
- Over 18 (or over 16 with parents’ permission);
- Not already married or in a civil partnership; and
- Not related within a prohibited degree of relationship.
The formation of the union is different
Both same sex or opposite sex marriage ceremonies can be civil or religious. The formation of a civil partnership is always an exclusively civil event. There may be a ceremony around the registering of a civil partnership and the civil partnership is formed when signing the civil partnership document and this must remain secular.
Divorce versus dissolution
A marriage, whether opposite or same sex, can be ended by divorce on the ground that the marriage has broken down irretrievably and relying on one of the following:
- The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
- The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them.
- Desertion for two years.
- Separation for two years and the respondent consents to the divorce.
- Separation for five years.
A civil partnership can be ended by dissolution on the ground that the civil partnership has broken down irretrievably and relying on facts 2-4 above that apply to divorce. A key difference is that adultery cannot be relied on to dissolve a civil partnership. That is because the definition of adultery is sexual intercourse with someone of the opposite sex outside the marriage.
The same principles apply to financial claims upon divorce or dissolution, although they are derived from different laws.
Should you be considering entering into a marriage or civil partnership and want to understand more about the difference between the two and the potential implications for you, our team of family solicitors at Thomson Snell and Passmore can help.