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May 22, 2019

What international couples need to know about civil partnerships

By Simon Blain

Simon Blain, Partner in the Family Team at Forsters LLP explains why civil partnerships are different from marriages, and why international couples should pay attention.

The UK Government has committed to extending civil partnerships to opposite-sex couples.

Originally introduced in 2005 as a form of legally-binding relationship for same-sex couples, civil partnerships have declined in popularity since same-sex marriage was introduced in March 2014. From an average of 6,600 a year between 2009 and 2013, numbers of new same-sex civil partnerships in England and Wales declined to fewer than 900 a year between 2015 and 2017.

At the same time, significant numbers of same-sex civil partners have taken advantage of the opportunity to convert their civil partnerships to a marriage, which was introduced within the same-sex marriage legislation.

It is frequently said that a civil partnership is “akin” to a marriage and, certainly as far as English law is concerned, that is very much the case. The legal rights and obligations arising from civil partnership are so close to those arising from marriage as to be almost indistinguishable.

Those who campaign for the extension of civil partnerships to opposite-sex couples believe that it will provide an alternative, more secular and more modern option for couples who are put off by the religious and formal connotations of marriage.

There is however one huge, and frequently overlooked, difference between civil partnership and marriage, and one which can have potentially serious consequences for international couples who are contemplating a civil partnership. By “international couple” I mean a couple one or both of whom have a significant connection to a country outside the UK and, in particular, who may be contemplating living outside the UK for any period of time.

The problem, in a nutshell, is that English civil partnerships are not recognised abroad in the same way as English marriages. The position varies from country to country and no authoritative record exists, setting out the current status of English civil partnerships on a country by country basis. For example, in Country A, an English civil partnership will be recognised as equivalent to a local marriage, whereas in Country B it will be recognised as equivalent to a local registered cohabiting relationship, the legal status of which can be far different to marriage. In Country C, an English civil partnership will not be recognised at all, and the couple will be treated as two entirely separate legal individuals.

What does this mean for an international couple, whether same- or opposite-sex, who have chosen a civil partnership over marriage?

We take the international recognition of marriage for granted. Whilst it remains the case, unfortunately, that same-sex marriage is not universally recognised, an opposite-sex couple who marry in England will generally expect to be treated as spouses wherever they travel. They will expect local law to legitimise their children when they are born, to treat them as a married couple for tax and inheritance purposes and, if things don’t work out, they will expect to be treated the same as a local married couple when they divorce.

A couple choosing a civil partnership, however, need to be aware that they can take nothing for granted. Careful research will be needed before relocating abroad, to establish whether they will enjoy equivalent rights to a married couple, or whether they will be at a significant disadvantage.

Let us consider an example:

  • Following the introduction of same-sex civil partnerships, a man who is a citizen of Country B and a woman who is a citizen of Country C enter into a civil partnership in England. While they live in England, they will enjoy legal rights and obligations towards one another akin to those of a married couple. If they decide to dissolve their civil partnership, they will have the same financial remedies available to them as a married couple who divorce.
  • Five years into their civil partnership, the couple relocate to Country B, the man’s home country. The local authorities will not regard them as a married couple, but as equivalent to a couple who entered into a local registered cohabiting relationship. Their legal rights and obligations in relation to tax, pension and inheritance will be very different to those of a married couple and, should they decide to end their civil partnership in Country B, they will be treated as though they were dissolving a registered cohabiting relationship, with potentially far more limited remedies than are available on divorce.
  • Ten years into their civil partnership, the couple relocate to Country C, the woman’s home country. Their civil partnership is not legally recognised, and they are treated under local law as an unmarried couple. If things do not work out, they will be unable to dissolve their civil partnership in Country C.
  • The same couple, had they married in England, would be treated as a married couple in both Country B and Country C.

For an international couple, whether same- or opposite-sex, marriage is currently a far safer option than civil partnership.

It might be hoped that the situation will improve with time, but the decline in numbers of new civil partnerships means there is little momentum for change. Unless there is very significant uptake of civil partnership by opposite-sex couples, the situation is unlikely to improve markedly.

There are two potentially helpful “escape clauses” for international couples who have entered into civil partnerships:

First, existing (same-sex) civil partnerships can be converted to marriages fairly straightforwardly. Many already have been. It is anticipated, but is not certain, that similar arrangements will be made available to opposite-sex couples who elect civil partnership. Provided conversion is carried out before the couple relocate abroad, they should be recognised as a married couple on arrival.

Second, unlike an English marriage, an English civil partnership can be dissolved in England, even if the couple have no other connection with England, provided no court in any other country has jurisdiction. Whereas a married couple seeking to divorce require a connection to England at the time of the divorce (broadly, to either be habitually resident or domiciled), civil partners retain the ability to dissolve their relationship in England, as a last resort. The reason, presumably, being to avoid a situation where unhappy civil partners are unable to end their relationship as a result of it not being recognised in the country where they live. Again, it is anticipated, but is not certain, that similar arrangements will be made available to opposite-sex couples who elect civil partnership.

For international couples, civil partnership is in no way akin to marriage, and a couple contemplating civil partnership should take careful advice before electing it over marriage.

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