Opposite-sex civil partnerships: an alternative to marriage

Opposite sex couple
Civil partnerships are now an option for opposite-sex couples, providing the choice of a formal union without any religious connotations. Cohabitees may wish to give this new possibility some thought since they have few legal rights and, contrary to popular belief, there is no such thing as a ‘common law marriage’.

The Civil Partnership (Opposite-sex Couples) Regulations 2019 came into force on the 2nd December 2019. Since then, opposite sex couples in England and Wales have been able to enter into a civil partnership – an arrangement previously reserved for same-sex couples only. This gives opposite sex couples the ability to form a union akin to that of marriage, with all the tax benefits and legal recognition attached to that arrangement but without the religious connotations.

As the minimum period of notice to form a civil partnership is 28 days, the first opposite-sex couples who registered their intent on 2nd December were able to enter into their civil partnership on 31st December 2019.

Key changes brought about by the Regulations include:

Extending civil partnerships to opposite-sex couples across England and Wales.

The Regulations amend the definition of a civil partnership and the requirement that the parties must be same-sex in the Civil Partnership Act 2004.

In addition, they amend Part 5 of the 2004 Act so that some opposite-sex unions that have taken place in other countries may be recognised as a civil partnership. The arrangements where this applies are contained in Schedule 1 of the Regulations.

Amending the rules regarding approval of premises for civil partnerships.

Part 3 of the Regulations changes the rules on approving religious premises as places where a civil partnership ceremony may be conducted. The new provisions mean that premises may be approved for either:

  • All civil partnerships
  • Civil partnerships for same-sex only couples
  • Civil partnerships for opposite-sex only couples

Under Part 3, religious bodies cannot be forced to carry out a ceremony if they do not wish to do so, in respect of any of the above choices. For example, a religious body may decide not to perform same sex unions on its premises.

Affording the same parental rights to an opposite-sex couple in a civil partnership.

Part 4 of the Regulations amends legislation so that opposite-sex couples in a civil partnership will enjoy broadly the same rights as opposite-sex parents in a marriage.

The Regulations specifically cover legitimacy, presumed paternity and parental status in assisted reproduction cases. Further, opposite-sex parents in a civil partnerships will have the same responsibilities and rights as opposite-sex married parents regarding the registration of births and parental responsibility.

Giving individuals the ability to apply for a gender recognition certificate without dissolving their civil partnership.

Part 5 of the Regulations amends the Gender Recognition Act 2004 so that individuals may apply for a gender recognition certificate to change their sex and gender in law, without first having to dissolve their civil partnership – provided that their partner consents.

Confirming that only same-sex couples may convert their civil partnership to a marriage. 

Part 6 of the Regulations amends the Marriage (Same Sex Couples) Act 2013 Section 9 to maintain the current position on conversion rights. Same-sex couples may therefore convert their civil partnerships to a marriage – opposite-sex couples may not. However, this is the subject of a consultation which closed in August 2019 and it is possible we may see amendments to the rules this year.

Recognising dissolution, annulment or legal separation overseas for opposite-sex couples.

The Civil Partnership Act 2004 recognises dissolutions, annulments or legal separations overseas although this was restricted to same-sex couples. Part 6 of the Regulations amends these provisions, extending them to opposite-sex couples.

Amending provisions concerning pension schemes.

Amendments are contained in Schedule 3 of the Regulations which alter the Pension Schemes Act 1993 and the State Pension Regulations 2015. Generally these substitute references to “married couple” for  “as if they were a married couple or civil partners”.

In addition, separate provisions were contained in the Local Government Pension Scheme (Amendment) Regulations 2019 which also came into force on 31st December 2019. Public sector pension schemes will now pay the same benefits to the survivor of an opposite-sex civil partnership as they would to the survivor of an opposite-sex marriage.

Trustees will need to check for occupational pension schemes that their scheme rules pay the same benefits to opposite-sex civil partners as they would for opposite-sex marriages.

Amending other legislation. 

A range of other primary and secondary legislation is amended by the Regulations, including the Child Abduction Act 1984, the Child Support Act 1991, the Adoption and Children Act 2002 and the Inheritance (Provision for Family and Dependants) Act 1975. The survivor of an opposite-sex civil partnership can claim under the latter on the same basis as a surviving spouse.

In conclusion

Opening up civil partnership to opposite-sex couples provides a new choice for those who would like a formal union without any religious connotations. Cohabitees may wish to give this new choice some serious thought. Currently, contrary to popular belief, there is no such thing as a ‘common law marriage’ and aside from some recognition under state benefits schemes, cohabitees have very few legal rights. By contrast, civil partners are generally on the same footing as married couples.

The Civil Partnership Act 2004 amended the Children Act 1989 to give civil partners the same rights as married couples in relation to children. They can, for example:

  • acquire parental responsibility as a step-parent for a child of their partner
  • apply for a child arrangements order in relation to a ‘child of the family’ – the definition of which was also amended
  • apply for financial provision in relation to a ‘child of the family’

Civil partners also receive favourable tax treatment comparable to spouses, such as:

  • tax exemption for gifts to each other
  • inheritance tax rights and exemptions

If cohabitees should decide that a civil partnership is not right for them, it is important that they take steps to put in place various legal documents to ensure their partner is cared for and their rights are protected. However, this will still not bring them onto equal footing with married couples and civil partners, since the law shows a clear bias towards those with a formal union.

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