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  1. Law
October 18, 2011

Gay Marriage… Gay Divorce… Gay Prenups…

By Spear's

We hear a lot these days about messy divorces and their legal implications — but what about the growing number of same-sex splits that are coming to court, asks Thomas Duggins of Charles Russell
many examples of big-money divorce payments in recent years, but these have always been between men and women. What happens if it is two men or two women splitting up? Since civil partnerships were allowed in 2005, and with David Cameron’s current enthusiasm for gay marriage proper, this has not been a theoretical question; nor has the issue of prenups for civil partners. The news that Pierre Lagrange of GLG had left his wife for a man made this subject more timely than ever.

Much press attention has, perhaps unfairly, focused on the perceived gender bias of the English courts, and disparaging comments have been made about the fact that wives in most of the big-money cases do not work out of the home, and indeed will never need to. Identical issues of course exist within gay relationships. Since the introduction of civil partnerships, family lawyers have speculated how the English court will treat the same-sex partner of a multimillionaire mogul on dissolution of their partnership. Will they, for instance, take the same perceived paternalistic attitude to a gay man who has not worked for the duration of the partnership, or will they assume he can get on his bike and work?

The financial provisions of the Civil Partnership Act directly match those on divorce. Although the Labour government resisted gay marriage, civil partnerships are almost precisely this, simply under a different name. Now, six years on and with a rise in the number of dissolutions, the same issues that exist on divorce are raising their head for civil partnerships, too.

On dissolution of a civil partnership, the court’s starting point will be an equal division of capital, regardless of its origin or where it is held. The court may depart from an equal division, if for instance a large portion of partnership capital was inherited or accumulated before the relationship began. The length of the partnership is also relevant: the shorter the partnership, the more likely it is that the courts will depart from an equal split of capital and consider the contribution. The courts will take into account the overall length of the relationship, not just the length of the civil partnership.

In most average-money cases, the parties’ financial needs will dictate the outcome. From the moment the civil partnership is entered, the parties assume responsibilities to one another and when it comes to capital, the main focus will be ensuring that each has sufficient to house themselves. Therefore, even after a short partnership, and regardless of contribution, the court will want to see that each has enough at least to place a deposit down on a suitable property, if finances allow this. What is suitable will be interpreted in light of the standard of living enjoyed during the partnership. The way the civil partners have lived together is therefore key.

Again, from the moment the civil partnership is entered, partners assume responsibility for ensuring that the other has sufficient income to meet their needs. Importantly, this responsibility may result in a maintenance order. Even after a short partnership, if one partner does not have an income (or income capacity) to meet their needs, the court could order that the stronger financial party pay maintenance, certainly for a year or two, to allow them to get ‘back on their feet’. If the weaker financial partner has a limited earning capacity, maintenance could last for the remainder of the partner’s life, or until they enter another civil partnership.

The court’s discretion when deciding how to divide personal finances and the increase in large capital and maintenance awards may put many off entering into a civil partnership. What starts as a formal recognition of a gay relationship for some could end up with one party placing all their personal finances in the hands of the court to redistribute. This uncertainty has led many to enter into pre-civil-partnership agreements.

Prenuptial agreements are still not binding in English law. The Supreme Court held in the recent case of Radmacher that such agreements should be upheld if they are freely entered into, if both partners understood what they were agreeing and if they are fair in their individual circumstances. If the above criteria are met, the presumption is that the civil partners will be held to the terms of a pre-civil-partnership agreement.

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Civil partnerships are trending downwards but dissolutions are increasing (especially among women). More than a symbolic gesture to the world, a civil partnership is the assumption of financial responsibility which extends beyond the dissolution and is in this way exactly equivalent to heterosexual marriage. For most, the division of finances at the conclusion of a civil partnership will be the largest personal financial transaction of their lives. In a world where men may now be ordered to maintain former male partners for ever, the reluctant groom may now also feature more frequently in gay culture.

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