As from 5 December 2005, it will be possible for same-sex couples to register their relationships and create a civil
partnership. The Civil Partnership Act 2004 is designed to give civil partners the same rights and responsibilities as
married couples. Whether it will also bring the same amount of joy presently experienced by married couples in areas such
as having the in-laws come to stay remains to be seen.
The legislation sets out the requirements for creating a partnership, as well as the procedure for its dissolution
through death, 'divorce' or annulment.
Who can be a civil partner?
Only same sex couples can register a civil partnership. The prospective partners cannot be married or in another
registered partnership.
How is a civil partnership ended?
A civil partnership can only be ended on the death of a registered partner or by dissolution by the court. The grounds
and procedure for dissolution mirror those for ending a marriage in divorce, save that a civil partnership cannot be
dissolved on the basis of "adultery".
What about finances on dissolution?
When one party applies to the court for dissolution, either party can apply to the court to consider partnership finances.
The orders the court can make, and the factors in must take into account, are also akin to those on divorce. The court can
make orders maintenance be paid, transfer property and also adjust either partner's pension provision. Prospective civil
partners should consider a "pre partnership agreement", similar to a pre marital agreement.
What are the tax implications?
From a tax point of view, a civil partnership will have the following benefits:
Inheritance Tax
Any gifts made by one civil partner to the other either during their lifetime or on death will be exempt from
inheritance tax. This is regardless of the amounts involved and is exactly the same way as gifts between married spouses are
treated.
Capital Gains Tax
Again, just as gifts between married spouses are tax free for capital gains tax purposes, so will transfers from one
civil partner to the other. However, there is one possible trap to be wary of. If a couple who have not registered a civil
partnership each own their own property but only one of the houses is occupied by them as their home, both can be sold free
of capital gains tax. However, once they have registered a civil partnership, they will have to elect one of the properties
to be their main residence and the other may then be subject to capital gains tax on sale.
Stamp Duty Land Tax
There is currently an exemption from Stamp Duty Land Tax for transactions carried out in connection with divorce such
as a transfer of shares or the transfer of the marital home from joint ownership into the sole ownership of one of the
ex-spouses. There will be a similar exemption for such transactions carried out following the dissolution of a civil
partnership.
What is the effect on Social Security Benefits?
Civil partners will also be entitled to the same rights as married couples in areas such as pension-sharing, tax
credits and child support benefits.
What about Wills?
By registering a civil partnership, any will which a civil partner has previously made will be automatically revoked,
just as a marriage revokes a previous will. This could result in intestacy if a new will is not put in place after the
registration. Civil partners would therefore be well advised to make new wills after registration. It is also an
opportunity to consider Inheritance Tax planning as certain tax saving schemes which were previously only available to
married couples will now be available to civil partners.
Further, if a civil partner dies leaving a valid will but without making reasonable financial provision for the
surviving civil partner, the survivor will be able to contest the will of the deceased in the same way as a surviving
spouse can now.
And Intestacy?
Where a civil partner dies without making a will, the surviving civil partner will be entitled to benefit from the
estate in the same way as a married spouse. This is a complicated area of law on which specific legal advice would need to
be obtained.
Kerin Speedie
Tax & Estate Planning Partner
Jonathan Miller
Family Solicitor
Authors' biography
Kerin specialises in tax planning, wills and the administration of estates. She gained an honours degree in
european law and languages, going on to complete a postgraduate diploma in legal practice. Having spent a year
as a paralegal with a firm of London solicitors, she joined
Whitehead Monckton
in 1996, qualifying as a solicitor in 1998.
She is a member of the Society of Trust & Estate Practitioners as well as Solicitors for the Elderly.
Jonathan specialises in all areas of family law including divorce, separation, children and financial matters.
He graduated in law from the University of Reading in 1996 and completed the Legal Practice Course at the
College of Law, Guildford in 1997. He was admitted as a solicitor in 1999. Jonathan joined
Whitehead Monckton
in 2004 after practising with another local firm.
He is a member of Resolution and sits on the Kent regional committee.