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Children Issues

Same Sex Relationships:

When is a marriage not a marriage?

The Civil Partnership Act 2004 (which came into effect on On December 5, 2005) allows couples of the same sex to have their relationship legally recognised. Couples who enter into a civil partnership obtain the legal status of “Civil Partners”, instead of the traditional husband and wife status.

As expected, when it was introduced Act met with controversy from both sides of the argument:- Christian groups spoke out against civil partnerships; Committed unmarried heterosexual couples who lived together argued that their rights had been 'leapfrogged' by Civil Partnerships. Furthermore, whilst it was an improvement on the previous position, same sex couples also pointed out they were still not allowed to be 'married'.

More recently (in March 2012) the Government published a consultation paper putting forward proposals (amongst other things) that same-sex partnerships be allowed to be married in a civil ceremony ( as opposed to being "civil partners")

Breakdown of the relationship

Leaving all the controversy aside however, when it comes to the relationship breaking down, civil partnerships (as from 2005 onwards and regardless of the result of the 2012 consultation paper) are treated the same as a divorce, with two main differences - what it's called and the grounds for getting a divorce:-

Difference 1 - When is a divorce not a divorce?

Presumably because the union itself isn't called a marriage, the dissolution isn't called a divorce. Instead it's known as dissolving the civil partnership.

Difference 2 - When is adultery not adultery?

Answer:- When it's unreasonable behaviour. The main difference between divorce and dissolving a civil partnership is that adultery cannot be used as one of the 5 grounds. So there are 4 grounds (which I've set out below). Apparently adultery has to comprise sex between a man and a woman so it couldn't be used. Therefore if adultery has occurred which causes your civil partnership to break down irretrievably then you would base your divorce on the ground of unreasonable behaviour. Which presumably it is.

To recap on the rules - Am I allowed to get divorced?
Firstly you can't get divorced until you've been married for at least a year. Provided you've satisfied that requirement then in order to get divorced you need to show that there has been an 'irretrievable breakdown of the marriage'. You may already consider that this has happened but the law says that there are only 4 (not 5!) ways (or 'grounds') that you can use for showing that the marriage has broken down irretrievably. These are known as the four 'grounds' for dissolution of a civil partnership, and they are:-

 

  1. - Ground B - Unreasonable Behaviour - When civil partner has behaved in such a way that their spouse cannot reasonably be expected to live with them. This can mean a variety of things ranging from upsetting behaviour to physical abuse, but also committing adultery (see above). As the behaviour itself has to be stated in the divorce petition this can be quite an upsetting ground to base the divorce petition on - often leading to the other party contesting the divorce (or at least threatening to) because they don't agree to the allegations made. If being used for 'adultery' then perhaps it's not such an upsetting ground.
  2. - Ground C - Desertion - When a civil partner has deserted their spouse without their consent and the parties have lived apart for two years. This isn't used very often as most couples prefer to go under ground D - 2 years separation with consent, or if consent isn't there then go for ground E - 5 years separation.
  3. - Ground D - Two Year Separation with Consent - When the couple have lived apart for a continuous period of 2 years and both parties consent to the divorce. The consent issue is vital here - without it you cannot have this as a ground for consent. Couples sometimes prefer this as there is no element of 'blame' within the proceedings. If the other party won't consent to it then in the absense of other grounds it may be better to wait for ground E - 5 years separation
  4. - Ground E - Five Year Separation This is when a couple have lived apart for a continuous period of at least five years. This ground doesn't require consent by the other person.

 

I've decided on one of the grounds - what happens next?

There are 3 main stages involved in the divorce itself - Filing the divorce petition, Applying for a 'Decree Nisi' and getting a 'Decree Absolute'

Step 1 - Filing the divorce Petition

The divorce petition itself is a long document that has to be prepared on your behalf. It contains all the details of the civil partnership including where and when you entered into the civil partnership, details of any children of the partnership (and children from previous relationships), together with details of the grounds that you are planning on using for the divorce (i.e. the ones listed above).

'Filing' actually means sending this to the court along with the court fee (which is currently £340). The court will then serve this document on the other party, who in return fills out send sends back to the court an 'Ackonwledgement of service' (If they don't do this then you can apply to have bailiffs service - where a bailiff serves the document on the other party. The bailiff's confirmation can then be used instead of the acknolwedgement of service.

If children are involved you also have to file a Statement of Arrangements for Children with the court at the same time.

Step 2 - Applying for a Decree Nisi

Once you've filed your divorce petition with the court and the other party has said they agree the next stage is to apply for a 'Decree Nisi' (It's from the Latin 'Nisi' meaning 'Unless'). The Decree Nisi is a document that says the court sees no reason why you can't dissolve the civil partnership.

Step 3 - Getting a Decree Absolute

The third and final stage in the divorce process is the one that wraps it up. 6 weeks and one day after the date of your Deceree Nisi you can apply to the court - this is either known as "applying for a Decree Absolute", "Applying for your absolute", or "Applying to make your Decree Nisi Absolute" - they all mean the same thing.

When you apply for the Decree Absolute you fill out a form and send it in to the court. Provided the court doesn't object then they will grant you your decree absolute. The Decree Absolute itself is a certificate that confirms that you are now divorced - it's effectively the opposite of the civil partnership.

Other things relating to the divorce

We've got a separate page on looking after the children. Although I said at the start that the divorce itself goes separately to the other stuff this isn't entirely true - if during the course of your divorce the court isn't happy with your plans for looking after the children (which is set out in the Statement of Arrangements for children that you send in with your divorce petition) then they may refuse to grant the divorce. This may cause considerable delay as you'll have to star the whole divorce process again once your plans have been amended.

The other big issue around breaking up is matrimonial finances - whether that is splitting up joint property or paying maintenance from one party to the other. Again we've got a separate page dealing with matrimonial finances

If you are worried about how much the dissolution process will cost you if you are not entitled to Legal Aid funding, we also offer Pay As You Go Divorce which enables to to spread the costs in easy monthly installments (although it's called Pay As You Go Divorce it applies to dissolution of a civil partnership as well).  For further information please contact our family department.

 

 



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