Article provided by Lucy Greenwood, Partner at The International Family Law Group LLP, for Beacon Gainer private wealth advisory services group.

On 31 December 2019, England introduced Civil Partnerships for heterosexual couples. Lucy Greenwood considers some International points for couples in Civil Partnerships to consider.

Background to Civil Partnership in England and Wales

It was only in 2004 that England and Wales legalised and recognised a formal legal status for same sex couples; a “civil union” as they are generically referred to, but in England they are called Civil Partnerships. In those other countries that recognise civil unions they are sometimes referred to differently e.g. Pacte civil de solidarite in France, domestic partnership in Nova Scotia, Canada, Union Civil in Argentina or significant relationship in Tasmania. Click here for more information.

In 2014 same-sex couples also gained the right to marry in England and Wales (including provision to convert their Civil Partnerships to marriages).

This caused some cohabiting heterosexual couples, who might for example say that they reject the concept of marriage for religious, gender or cultural reasons, to say that they were discriminated against; as they had fewer options than same sex couples for formalising their relationship status.

This led to some couples preferring to stay as informal cohabitants. Whilst in some countries cohabitees have similar rights to married couples, in others, including England and Wales there are stark differences in the legal rights and entitlements of couples who are married compared to those who cohabit. There is no such thing as common law marriage in England and Wales.

Click here for more information.

For those couples who are both only connected to England and Wales (by birth or citizenship) and who do not foresee ever living abroad during their Civil Partnership; their legal status, rights and remedies should remain consistent throughout their Civil Partnership.

For others, with connections to countries other than England or Wales (by birth, citizenship or residence) the long-term status and recognition of their Civil Partnership and associated legal rights and obligations towards their civil partner might be variable.

International considerations

It will be seen from the list of countries referenced in the link above that “civil unions” come under many guises and names, but there remain many countries which do not have them and therefore do not recognise them.

  • Some countries recognise such civil unions, but many which do no
  • In some countries civil unions do not apply to same sex couples
  • In some countries they apply to same sex or opposite sex couples
  • Some countries offer rights and entitlements almost identical to married couples
  • In many countries civil unions do not carry equal rights, protections or obligations
  • In some countries they might be recognised as equivalent to a local marriage
  • In some countries they might be recognised as equivalent to a local registered cohabiting relationship – which again might have considerably different benefits, protections or obligations for civil partners

In England and Wales the rights and entitlements for Civil Partnerships are almost identically aligned to those of married couples.

So why do differences in the recognitions of civil unions worldwide matter?

Unlike a marriage which as a legal status is recognised globally, a Civil Partnership or other civil union, can mean very different things in different countries (or simply not be recognized at all)

Consequently, you could find if you have recognised Civil Partnership in England and Wales, but moved countries during your Civil Partnership, your legal status, entitlements and obligations might change considerably once you cross an international border.

In reverse, if you entered a civil union abroad and moved to England and Wales, the rights attributable to your civil union might be increase from those you planned and envisaged when you entered into your contractual partnership.

Consequently, depending upon which of you is the stronger or weaker financial party, these international moves could alter your entitlements or responsibilities very significantly indeed.

In the event of separation or dissolution of civil partnership, this could lead to one civil partner wishing to elect or planning to move abroad (to manoeuvre a more beneficial financial outcome for themselves).

As many taxes, inheritance rules, next of kin notifications, pension or immigration right and sometimes even rights towards children are commonly connected to the legal status of a couples’ relationship, it is clear that the consequences for international and internationally mobile families who are in civil unions rather than marriages could be vast. For example, whilst in England certain tax allowances for married couples would apply equally to couples in a Civil Partnership; in other parts of the world the tax or succession allowances and advantages afforded for married couples might not apply to those in civil unions.

There are also other impacts not referenced here most of which remain untested legally.

So how might international couples protect themselves?

  • If you have not yet entered into a civil partnership; getting married provides greater certainty of recognition of your relationship status abroad. However, there can still be considerable differences in resultant rights and responsibilities in different countries upon divorce. Therefore, if the aspect of how assets are shared upon divorce is of importance to you, careful consideration preferably with advice from professionals, including international family lawyers should be sought before reaching a decision to choose to marry instead).
  • If you are in a civil union, consider converting your relationship status to marriage before you move. In England and Wales this is possible for same sex couples and it is envisaged it will also be for opposite sex civil partners. However, the decision to do so should involve the same considerations as referenced above before doing so.
  • If you are planning to enter a civil partnership, consider entering a pre-civil partnership agreement with consideration of how that agreement might best be recognised in any country with which you or your civil partner has any connection or where you might live.
  • Similarly, if you are considering converting a Civil Partnership to a marriage, a pre – marital agreement should be considered.

What if a couple wants to dissolve their Civil Partnership, but do not have sufficient connection to a country which recognizes their Civil Partnership?

Because there are countries which do not have any form of civil union and therefore will not recognize Civil Partnerships, if no court in any other country has jurisdiction to dissolve a Civil Partnership, even if the couple have no other connection with England and Wales  they can dissolve their Civil Partnership in England, along with the full range of financial remedies available to civil partners here – which are akin to those of married couples.

Other remedies for couples who have dissolved their civil partnerships abroad

  • In some instances, it might also be possible for those in Civil Partnerships which have dissolved abroad to also utilise Part III Matrimonial Family Proceedings Act 1984 to seek financial relief after dissolution.This remedy is being used increasingly for orders connected to pension sharing, but in some situations can apply to other financial claims too.
  • Schedule 1 of the Children Act 1989 might also provide assistance for financial relief for children of a Civil Partnership if Part III MFPA 1984 is not available or issuing in England to dissolve a civil partnership is not possible.

Conclusion

There remain many unknowns regarding the recognition of English Civil Partnerships abroad whether for same sex or opposite sex couples. Unlike marriage, civil unions do not represent a universally recognised status. It is therefore essential to consider these legally technical but highly significant points and how they impact your life with an international family law specialist and other professional advisers before you move abroad or enter into a civil union.

More IFLG related articles here

Lucy Greenwood
lucy.greenwood@iflg.uk.com
The International Family Law Group LLP
www.iflg.uk.com
© January 2020