Relationship Breakdown

The breakdown of a relationship often brings far-reaching consequences for the couple and any children they have.

One of the main advantages of civil partnership is that it puts couples who choose to make this commitment to each other on the same legal footing as married couples – all other couples who live together outside of marriage and civil partnership have little legal protection if things go wrong.

As for couples whose marriage is in trouble, civil partners with relationship problems can get help if they want it from organisations like Relate and other groups offering relationship support, despite the fact that many are still referred to as marriage guidance.

If you are certain that the relationship is at an end and you can’t work out your difficulties, you can make an application to court to dissolve the civil partnership. You cannot begin dissolution (effectively the divorce) in the first year of the civil partnership.

In certain defined circumstances – for example, where there has not been proper consent, where a partner was suffering from mental illness at the time, where one partner was pregnant at the time without their partner’s knowledge or where a partner has changed gender and the other did not know this – the civil partnership may be annulled rather than dissolved. If you think this applies you would need specialist advice.

You could also apply to a court for a separation order which does not dissolve the partnership but allows a court to make financial orders to settle your affairs. This is based on judicial separation in marriage law and allows for a couple to live separate lives where they do not wish to divorce for religious or other reasons. Without dissolution neither partner can enter a new civil partnership or marriage.

The dissolution process closely mirrors divorce. While you might have thought that creating an entirely new legal relationship for same sex couples meant that a new legal framework for dissolution could be created, it was decided that the best approach was to apply the law relating to marriage and divorce to ensure equality of treatment between married couples and those in a civil partnership.

The person making an application for dissolution of the civil partnership has to show that the civil partnership has irretrievably broken down and establish one of the following facts:

• Their partner has behaved in such a way that it would be unreasonable to expect the applicant to continue to live with him or her
• Both partners agree to the dissolution and have been separated for 2 years
• They have been separated from their partner for 5 years
• Their partner has deserted them for a period of 2 years or more

One difference between dissolution of a civil partnership and divorce is that there is no adultery ground available to people wanting to dissolve a civil partnership due to their partner’s infidelity – this is because the legal definition of adultery relates specifically to heterosexual couples. In this situation a dissolution based on the other person’s unreasonable behaviour could apply.

When applying for a dissolution, applications can also be made for financial orders covering maintenance payments, the transfer of property from one partner to another payment of a lump sum, pension sharing and orders for the benefit of the children. The court must try and provide for a clean break wherever possible but can award maintenance where it is needed.

Contrary to some of the divorce mythology, there is no rule that a couple’s property is automatically split 50:50. The court has a very wide discretion to decide on what it feels is a fair way to share any property – it looks at a number of factors:

• the welfare of any children
• the income, earning capacity, property and resources of each person
• the financial needs, obligations and responsibilities of each person
• the standard of living enjoyed by the family before the breakdown of the partnership
• the age of each person and the duration of the civil partnership
• any disability
• the contribution made by each person to the welfare of the family, including looking after the home and bringing up any children
• conduct, but only if it is so bad it would be unfair to ignore it
• any serious disadvantage to either person which would be caused by ending the civil partnership.

How much weight a court gives to each factor will vary from case to case depending on circumstances, so it is very difficult to predict outcomes. As civil partnership hasn’t been possible before 2005, it will be interesting to see how far the courts will take into account periods of living together before becoming civil partners. This could be crucial where the relationship itself was a long one but the civil partnership itself was relatively short. It also remains to be seen how far courts will look at civil partnerships from the perspective of traditional marriage and how willing they will be to consider distinct characteristics of same sex relationships.

Courts encourage couples to agree on a settlement they believe is fair and then the court can convert this into a binding court order. Family mediators can help couples form agreements if they both feel this is the right option for them.

For further information, contact Louise Coubrough or Melanie Hay.