The Difference Between Marriage and Civil Partnership

Before 5 December 2005, the only kind of relationship officially recognised under the law in England and Wales was a marriage entered into by a man and a woman. From 5 December 2005, the Civil Partnership Act 2004 allowed a same-sex couple to form a civil partnership - in many ways similar to a marriage. With effect from 13 March 2014, the Marriage (Same-Sex Couples) Act 2013 has also allowed same-sex couples to marry. Finally, since 2nd December 2019, it has been possible for opposite-sex couples to form civil partnerships.

In this note, we summarise the law as it applies in England and Wales. The law in Scotland and Northern Ireland is broadly similar. However, one important difference is that same-sex marriages are not recognised as such in Northern Ireland. Where a same-sex couple have married in another part of the UK, in Northern Ireland they will be treated as being in a civil partnership.

Who can marry or enter a civil partnership?

Any person can get married or enter a civil partnership if they are:

• aged at least 16,
• not already married or in a civil partnership, and
• not closely related to their partner.

Whilst any such person is free to get married or enter a civil partnership in a civil ceremony, a same-sex couple can only get married in a religious ceremony if the relevant religious organisation has agreed to marry same-sex couples.

It is possible for a couple already in a civil partnership to convert it into a marriage by using a simple administrative procedure involving an appointment at the local Registry Office.

What are the main differences between marriage and civil partnership?

In terms of a couple’s day-to-day life together. there are few significant differences between marriage and civil partnership. However, the two concepts are legally distinct. Civil partners may not call themselves ‘married’ for legal purposes. Similarly, a married couple may not describe themselves as ‘civil partners’.

That said, in most respects, the law applicable to married couples and civil partners is the same. They have the same property rights and pension benefits and share the same ability to obtain parental responsibility for the other partner’s child. They are treated in the same way by the tax system. So, for example, any transfer of assets from one married person or civil partner to the other - whether by a lifetime gift or on the death of either of them – will be completely free from inheritance tax.

Until very recently, one difference between marriage and a civil partnership was that marriage certificates only gave the names of the couple's fathers whilst civil partnership certificates have always named both parents. From 4th May 2021, marriage certificates name both parents.

Both marriage and civil partnership may be contrasted with the position where a couple simply decides to live together without formalising their relationship. Partners who have not married or formed a civil partnership have less legal protection in the event of separation and do not generally benefit from preferential treatment under the tax and benefit system.

How does a marriage or civil partnership come to an end?

In the absence of a divorce or judicial separation, a marriage will continue until either party dies, even if the couple have separated or become estranged. The same basic principle applies to a civil partnership, although the terminology is slightly different. Rather than the Court granting a Decree Absolute of divorce, the Court may make a Dissolution Order dissolving a civil partnership.

As the law presently stands, the Court may only grant a divorce or dissolution if it is satisfied that the marriage or civil partnership has irretrievably broken down. The Court will only conclude that the marriage has irretrievably broken down if the Court is satisfied that the Petitioner for divorce has proved one of the following five facts:

• Unreasonable Behaviour – that the other party has behaved in such a way that it is unreasonable to expect the applicant to live with the other party;
• Desertion - that the other party has deserted the applicant for a continuous period of at least two years immediately preceding the date of the application;
• Two Years’ Separation with Consent - that the parties have lived apart for a continuous period of at least two years immediately preceding the date of the application and the other party consents to a divorce being granted or a Dissolution Order being made;
• Five Years’ Separation without Consent - that the parties have lived apart for a continuous period of at least five years immediately preceding the date of the application; and
• Adultery - in the case of marriage, but not a civil partnership, that the other party has committed adultery and the applicant finds it intolerable to live with the other party.

For civil partnerships, the petitioner only needs to prove one of the following four facts:-

• Unreasonable Behaviour
• Desertion
• Two Years’ Separation with Consent
• Five Years’ Separation

Adultery does not apply to civil partnerships, although it can be used as an example of the respondent’s unreasonable behaviour in the petitioner’s petition.

In reality, unreasonable behaviour and two years’ separation with consent are the grounds most commonly relied upon by a petitioner seeking a divorce or a Dissolution Order.

However, this is all about to change. When the Divorce, Dissolution and Separation Act 2020 comes into effect - probably in April 2022 – adultery and desertion in divorce will be removed altogether. Further, it will no longer be necessary for an applicant seeking a divorce or dissolution Order to provide evidence of a ‘fact’ around behaviour or separation. Instead, there will simply be a requirement to provide a statement of irretrievable breakdown. The ability to contest a divorce or civil partnership dissolution will also be removed. In addition, both parties to a marriage or civil partnership will have the option of making a joint application for a divorce or a dissolution.

Family Law Experts

We have had many years’ experience in advising on all aspects of family law. To find out more please contact our specialist family law Solicitor at Heald Solicitors.