Ask Jefferies: What Do I Need to Consider in the Event of a Same-Sex Divorce or a Civil Dissolution?

Posted on October 7, 2019
Person holding ring looking sad

Due to the fact that same-sex civil partnerships were introduced in 2005 and marriage was only legalised in 2018, getting a civil partnership dissolved or divorce has become increasingly prevalent among same-sex couples. As these different legal rights come into effect at different times, there can be some confusion about the process when deciding to formally end the relationship.

Whether in civil partnership or tied in matrimony, many same-sex partners in the UK will be bound by legal obligations and shared responsibilities, such as ownership of property, jointly owned possessions and shared responsibility of children. In situations where those partners are considering a dissolution or a divorce, a number of questions regarding same-sex couple rights often emerge.

At Jefferies, our experienced Divorce Law team often deal with same-sex civil partnership or divorce. Here, we address the common questions that arise in these scenarios…

Are there any differences between civil partnership dissolution and same-sex divorce?

The process of civil partnership dissolution and same-sex divorce are, as a matter of fact, almost exact, but the main difference between the two is a matter of language. Civil partners need to apply for a ‘dissolution’ whereas married couples need to apply for a ‘divorce’. But in the eyes of the law they are practically the same and the process still works the same way. The grounds for a divorce or dissolution is that the relationship has ‘irretrievably broken down’. 

What are the common reasons for same-sex divorce and civil partnership dissolution?

To prove your partnership or marriage has ‘irretrievably broken down’, there are five reasons listed, legally known as ‘facts’, which include:

  • Unreasonable behaviour – including physical, verbal, emotional or mental abuse, substance abuse, irresponsible financial conduct, or infidelity
  • Desertion – if your partner has left you for more than 2 years
  • You have lived apart more than 2 years – but both of you agree to end the partnership
  • You have lived apart more than 5 years – even if only one of you agrees to end the partnership
  • Adultery – however, by definition of law, only in circumstances that the spouse has engaged in sexual relations with an opposite member of sex!

We know it can be difficult to present your reasoning in your application, especially if one spouse appears to be at ‘blame’ more than the other. For a smoother process, our specialist divorce Solicitors are able to guide you through the reasoning and help to resolve conflicts before proceeding with an application.

How does same-sex dissolution and the divorce process work?

To apply for a dissolution or a divorce, you and your partner must have been married or in a civil partnership for at least a year. The partner wanting to end the marriage or civil partnership is called the applicant and the other partner is called respondent.

Paperwork is sent to a court to ask them for permission to end the civil partnership or marriage. If both parties agree to the separation, you will not usually have to attend court. If the judge accepts there are valid reasons for it and all paperwork is in order, they will grant the request.

However, the respondent is also within their rights to oppose the dissolution or divorce, or to launch their own counter claim. In these cases, if the issue cannot be resolved, the disagreement is likely progress to court. Unfortunately, this can often turn into a battle between both parties between who did what, what’s fair, and who gets what. In these circumstances, it is critical you get a Solicitor by your side to nip any conflicts in the bud before they go to court.

Whether or not both partners agree, we recommend that you get a Solicitor to guide you with your application to ensure the application goes through smoothly as possible.

Which ‘personal circumstances’ in civil dissolution or same-sex divorce do I need to consider?

The reality is that every divorce and dissolution will be different, not because of the process framework itself, but because of the personal circumstances between the couple. At Jefferies we understand that no two case facts are the same, and are always keen to offer a listener ear, tea / coffee and tissues to all clients that walk through the door…

Civil partnership’s were introduced nine years before same-sex marriages were legally permitted, but these days the areas of law are very similar for the two unions. Both areas are concerned with rights and responsibilities related to financial income, property, assets, and often children. So, whether you are getting a divorce or dissolution, arrangements regarding the split of assets and any family issues should be dealt with accordingly before going to court.

How do you deal with the division of assets in a same sex divorce or dissolution?

Before any couple gets married or enters a civil partnership, we recommend they create a prenuptial agreement – or pre-civil agreement – that outlines the division of assets in the unexpected event of a divorce or dissolution. However, in cases where a prenuptial agreement has not been made, spouses can also create a ‘postnuptial’ agreement of the same effect after they are married.

In circumstances where neither a prenuptial nor postnuptial agreement has been made, but the couple is on the fringe of separation, it is best to instruct a Solicitor to make sure an agreement is still made between both parties. Unfortunately, even when both partners agree and everything seems ‘civil’, there can be overlooked details that cause issues further down the line, such as the unfair division of assets. So, for the security of yourself and your loved ones, we recommend that you speak to a Solicitor to make sure everything is in place.

What about children in a same-sex divorce or dissolution?

On the granting of a divorce or dissolution, each partner’s status in relation to the child remains the same. However, it is common for many same-sex couples to conceive via ‘non-traditional’ methods, such as fertility treatment, surrogacy or the assistant of a donor, which can sometimes make cases more complex. It is therefore important that you consult with a Solicitor to make sure you know what your rights and entitlements are in respect of the children and ensure the welfare of the child is at the heart of any discussions. As it should be, the law is always centred on what is in the best interests of the child or children.

How Jefferies can help

Are you planning to separate, dissolve a partnership or get divorced? Our expert Divorce Law Department has a wealth of experience dealing with same-sex divorce and civil partnership dissolutions, and are always here to offer advice. Whether you are a couple looking to make arrangements, or an individual unsure of your rights, get in touch with our Solicitors for more guidance.

Contact our specialist team of Divorce Law Solicitors today on 01702 443 480.

 

 

 

 

 

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