A step towards equality

Les Allamby considers the rights and responsibilities conferred on same sex couples by the new Civil Partnership Act.

From 5 December 2005, the Civil Partnership Act comes into effect in Northern Ireland. The legislation is a landmark shift in the treatment of same sex couples within the law. The legislation covers wide ranging areas of law including social security, employment, housing, immigration, occupational pensions, wills and inheritance, tax, criminal injuries compensation and family matters. In some instances, new rights are dependant on a couple having registered a civil partnership, in other cases new rights and responsibilities apply whether or not the relationship is registered.

The Civil Partnership Act 2004 is a UK-wide piece of legislation. The relevant sections for Northern Ireland are contained in Part 4 (sections 137 to 209) and Schedules 12 to 19. Other parts of the legislation apply across the UK and also need to be taken into account.

The legislation only applies to same sex couples. The government has, however, asked the Law Commission in England and Wales to produce proposals for legislation to govern the rights of common law heterosexual couples. The aim is to have a draft bill produced for England and Wales by the summer of 2007.

Registering

A same sex couple can form a civil partnership by registering the relationship. A same sex couple must satisfy certain conditions before being able to register a civil partnership. They must:

• both be aged at least sixteen (though parental or other appropriate consent must be given if either partner is under eighteen);
• not already in a civil partnership or legally married;
• capable of understanding the nature of the civil partnership;
• not within prohibited degrees of relationship (for example, where partners are also close relatives).

Registration is undertaken by registrars appointed by local councils in Northern Ireland. Each partner must complete a written notice on the appropriate form (at least fourteen days in advance) of the intention to form a civil partnership. The details of the intention are made publicly available (though this does not include the addresses of each partner). The civil partnership can then be formed by signing a legal document before a registrar and at least two witnesses at the local registration office or another venue which has been approved by the local registration authority. A ceremony can accompany the signing of the document but this must not include any religious element.

Civil partnerships created abroad will be recognised within the UK. These currently include those formed in Belgium, Denmark, Finland, France, Germany, Holland, Iceland, Norway, Sweden as well as Vermont in the USA and the provinces of Nova Scotia and Quebec in Canada. The government has committed itself to update the list contained in the Schedule to the Act. Recently, new legislation has been passed in New Zealand, Spain and Connecticut in the USA.

A civil partnership can only be ended by death (or a presumption of death order), dissolution or annulment by a court. The grounds for legally ending a civil partnership are similar though not identical to those that apply to ending a marriage.

New Rights & Responsibilities

Social security

For Income Support, Income-based Jobseeker’s Allowance, Housing Benefit and Pension Credit, a new definition of a couple will be introduced to cover same sex couples (regardless of whether or not the relationship has been registered as a civil partnership). As a result, the income and savings of each partner will be added together. Moreover, if one partner is working 24 hours or more then the other partner will not normally be able to claim Income Support or Income-based Jobseeker’s Allowance.

For tax credits, regulations have been amended to make clear that living in a same sex relationship from 5 December 2005 is to be treated as a change of circumstances. In effect, same sex couples (regardless of registration of the civil partnership) are expected to notify Her Majesty’s Revenue and Customs (HMRC) of their circumstances and both partners' income will then be taken into account.

A concern is that existing same sex couples who are treated as two individuals for these benefits will face having overpayments recovered if the relationship is not declared on commencement of the Civil Partnership Act. The Department of Work and Pensions in Britain has suggested that initially it is unlikely to recover overpayments (except where fraud is suspected) from existing claimants providing the change is reported as soon as possible and at the latest by the first benefit review after the Act came into force. HMRC has made no such suggestion though, interestingly, HMRC claims that it does not expect significant numbers of overpayments to be generated by the change. In practice, a ‘watch this space’ will have to apply to how the new arrangements work in practice.

Checking whether two people living in a household are in fact a same sex couple will also prove difficult. The arrangements for investigating whether two people are living together as husband and wife have always been contentious. Extending this to investigating whether two individuals are a gay couple is likely to be even more problematic.

For other benefits there will be new rights created. Bereavement benefits will be extended to surviving registered civil partners based on the contributions of the deceased partner. Adult dependency increases for retirement pension, Incapacity Benefit and Carer’s Allowance will be paid to registered civil partners.

Registered civil partners will eventually be able to rely on each others’ contributions when assessing entitlement to retirement pension. However, this will only apply in full from 2010 when the treatment of husband and wives contributions has been fully equalised.

For Child Support, civil partners (regardless of registration) will be treated the same way as opposite sex married and unmarried couples.

Employment and housing rights

Under the Employment (NI) Order 2002, flexible employment rights are already available to same sex couples. The living partner of a person with a child under six or a disabled child or young person aged under eighteen can request a change to working arrangements to help care for the child or young person. The employer must consider the request although is not obliged to grant it where there are clear organisational or business reasons. Under the same Order, Statutory Paternity Pay and leave, Statutory Adoption Pay and leave and rights to take reasonable time off to look after a dependant (including partner) also apply to same sex couples in the same way as to opposite sex couples, married or unmarried.

The right to succeed a tenancy after the death of a same sex partner has already been established through recent decisions in the House of Lords Ghaidan v Mendoza (2004) and the European Court of Human Rights Karner v Austria (2003). The Civil Partnership Act places the right to succeed a tenancy on a statutory footing. Housing Executive policy also allows for the succession of a tenancy to a surviving same sex partner whose relationship was not registered where the couple were living together for twelve months prior to the partner’s death.

Inheritance & other rights on death

Rules that govern inheritance where a person dies without leaving a valid will are extended to civil partners. Where the dead person had no children then up to £200,000 goes to the civil partner and a half share of anything else that is left beyond this. Where the dead person had children, the surviving civil partner is entitled to £125,000 and the income from half the amount left.

A surviving civil partner can also apply to a court to make a claim for reasonable financial provision where it is felt that the provisions made in the will (or applied because there is no will) are unreasonable. A same sex partner whose relationship was not registered can also make an application where he or she was living with a partner for two years immediately before the death.

A will made before a civil partnership is registered is revoked unless the will explicitly sets out it should remain valid where a civil partnership is formed.

Family matters

A registered civil partner will become the step parent of his or her civil partner’s children. However, this does not create legal parental responsibility for a step child. To obtain formal legal recognition of responsibility, the step parent will have to apply for a parental responsibility order. Where a civil partnership has broken down, the former civil partner will also be able to apply for residence or contact orders to decide who the child lives with and how much time the child spends with each parent. Adoption of a child by a same sex couple is currently not permitted by law, although people are allowed to adopt as individuals. This issue is being examined as part of a wide ranging review of adoption law. New legislation is expected during 2006/2007.

Same sex couples (registered or otherwise) also now have the same rights of protection from domestic violence as afforded to heterosexual couples.

Other rights

Compensation for criminal injuries, criminal damage and fatal accidents legislation is all extended to same sex couples (whether registered or not).

Occupational pension rights following the death of a registered civil partner are extended to the surviving partner. The new rules allow the surviving partner to benefit from his or her deceased partner’s pension based on the number of years worked from 6 April 1988 to date of retirement or death (if the partner is still working).

Work place benefits, for example private health insurance schemes, are also extended to registered civil partners.

No specific rights have been created to be treated as next of kin in hospital or other health care settings. Guidance has, however, been issued by DHSS(PS) that where a civil partnership has been registered then, each partner should be treated as next of kin.

Immigration rights available to married couples will be extended to civil partners.

Conclusion

The Civil Partnership Act is a major step forward for the legal recognition of same sex couples. Civil partnerships represent a public declaration of sexuality. While this is a positive development, the extent of homophobia within Northern Ireland society should not be underestimated and coming out will still be difficult. Also, while creating many positive rights, the Act also ends the advantages that accrued to same sex couples in the social security system. Nonetheless, it is a significant social reform and a landmark in the development of social equality.