A mirror of marriage?

The first civil partnerships were registered in December 2005, with 26,787 registrations up to the end of 2007 '“ about 5 per cent of the number of marriages in the same period. Yet few solicitors have as yet had any experience of cases involving civil partnership and there are no direct authorities to assist. That is now set to change as some of the relationships are starting to break down.

Financial provision

Although the recent high-profile split between Matt Lucas, the star of Little Britain, and his partner Kevin McGee will not be the first dissolution, it prompts pertinent questions as to how lawyers, and the courts, will deal with finances, particularly where one civil partner earns substantially more than the other. Areas to consider include:

 how far you can apply the authorities regarding marriage;

 whether dual-career relationships should be treated differently;

 the relevance of prior cohabitation;

 how far one partner can expect maintenance (or the other to pay it); and

 the effect of 'pre-nups'.

A matter of discrimination

It is very tempting to assume that the courts will treat civil partnerships just the same as marriage. Certainly their powers are identical: Schedule 5 of the Civil Partnership Act 2004 simply recasts the financial provisions of the Matrimonial Causes Act 1973 into more modern language. But, strikingly, the Act does not expressly forbid different treatment. While Art.14 of the ECHR generally forbids discrimination on the grounds of sexual orientation, in M v Secretary of State for Work and Pensions [2006] 2 WLR 637 the House of Lords held that the ECHR was not engaged with respect to family financial orders (see also Wilkinson & Kitzinger v A-G [2006] EWHC 2022 (Fam) at [88], per Potter P).

Indeed, on divorce/dissolution the court has a wide discretion in financial matters to treat parties differently according to their particular circumstances: to create a tailor-made solution in each case. While the range of circumstances that one finds in civil partnerships is likely to be very similar to that of marriages overall, some of the things which are normal or common in marriage may not be for many civil partnerships, particularly between men. There is a danger that solutions tailored for opposite-sex couples simply will not fit.

The guidance developed in matrimonial cases has largely been directed to the ordinary circumstances of opposite-sex relationships: they commonly have children and a division of roles (often with a primary earner and a primary homemaker), leading to

economic inequality between the sexes. We regularly refer to the parties as 'the husband' and 'the wife', and those stereotypes are surprisingly strong, perhaps because they really do reflect the reality of the vast majority of marriages. When they do not, for example when the wife (or the party with residence of the children) is economically stronger, it is much more difficult to apply the authorities fairly or consistently.

Trying to apply the labels 'husband' and 'wife' to same-sex couples is likely to be especially misleading. Although one party may well be economically stronger than the other, this will have nothing to do with gender and may well have nothing to do with the relationship either. When both parties are of the same sex, they are more likely to share roles than divide them up, even in relation to childcare. Neither man will have grown up expecting to depend financially on someone else; neither woman will expect to have to support another financially. If one of the purposes of the 'yardstick of equality' is to prevent discrimination '“ see B v B [2008] EWCA Civ 543, per Wall LJ at [51] '“ it may apply less strongly to civil partners, who will be of the same sex.

Non-earners

Of course, within some partnerships there will be non-earners. Where civil partners have no children, it may be easier to question whether the non-earner was really contributing as much to the welfare of the family. The bar is likely to be high: an 'obvious and gross' case of idleness. But the courts may be less ready to assume that a non-earning civil partner (particularly a male one) must have been contributing just as much on the domestic front.

Dual-career couples

Dual-career civil partnerships (where both pursue full-time occupations) will be common. In Miller and McFarlane [2006] UKHL 24 at [153], Baroness Hale envisaged that sharing in such cases might only apply to the 'family assets' and not to any surplus which the parties hold separately. This may more readily apply to civil partnerships. Same-sex relationships have not been recognised at all in law until very recently, which has encouraged financial independence within relationships and explicit financial arrangements to the extent the couple intends interdependence '“ for example, by deeds of trust, cohabitation agreements and the like. Moreover, many older couples registered as civil partners to benefit from the exemption from inheritance tax and/or public sector widows pensions, without wanting to disturb their settled financial arrangements.

Such arguments may be particularly strong where the parties have very different career paths. Should a pop star at the height of a short career share all his earnings during civil partnership with an accountant whose earnings will continue increasing until retirement? Should a young lawyer funded through the lean years by his civil partner also share in the assets he accrued?

On the other hand, needs may predominate. Or, like Heather McCartney, the poorer partner may claim to have given up career opportunities to foster the other's career, entitling them to compensation, or to have contributed to the generation of the surplus wealth by emotional and practical support. If so, it seems the courts will want to see cogent evidence in support '“ McCartney v McCartney [2008] EWHC 401 (Fam).

Prior cohabitation

Many cases will involve long periods of cohabitation before civil partnership, largely prior to the CPA 2004 coming into force. These will probably be taken into account as part of the duration of the relationship in similar circumstances to marriage.

Does that mean that the assets acquired during the cohabitation should be shared, even though at the time they were acquired the parties would have had no notion they might be redistributed by the court? The rule against retrospectivity probably does not strictly apply '“ when the parties registered, they signed up to whatever the rules for civil partnership are. But Baroness Hale's notion of separate non-family savings may well assist.

'Pre-nups'

The courts are now more ready to take into account or even enforce pre-nuptial agreements, particularly in short childless marriages. This should apply to many civil partnerships, at least initially. Indeed, the courts may be more ready to defer to the common intentions and expectations of civil partners (if reasonably clear) when there is as yet no authority as to how the courts should exercise their own discretion under the CPA 2004, Sch.5. (In Lambert v Lambert [2003] Fam 103, however, it was held that a married couple's own sense of what was fair was not relevant to financial division.) The formal requirements of pre-nuptial agreements may therefore be applied more loosely.

Maintenance

Spousal maintenance presents obvious difficulties. Courts just do not award maintenance to men or order women to pay it. Maintenance may apply:

 where the payee is disabled or looking after the children;

 as compensation, where one has sacrificed earning capacity to assist the other;

 where the earnings gap is very large; and

 after a long relationship where the lower earner is too old to increase his earning capacity.

But the courts are likely to be less generous than towards wives, and more inclined to expect the payee to maximise his earning capacity and adjust quickly to independence and a lower standard of living. It is difficult to see why a civil partner should pay any more maintenance than a wife would pay in similar circumstances.

Children may have only a limited effect on spousal maintenance, as shared care is a common arrangement. The non-biological parent is in law a step-parent, unless they adopt the child. Even so, where both partners were involved in arranging the conception, they commonly regard themselves as equal parents. Indeed, under the Human Fertilisation and Embryology Bill, Clause 42, a female civil partner involved in the arrangements for artificial insemination will be treated as a natural parent in the same way as a husband would be. However child maintenance will need special attention. At present it remains a matter for the courts and not the Child Support Agency (CSA), except where the non-biological parent has primary residence. Many cases will also involve a known donor father who will be liable for child support through the CSA.

Equal sharing principle

There is probably little alternative to trying to apply the authorities on marriage to civil partnership. The courts are not going to start from scratch. The principle of equal sharing commends itself because it cuts out a lot of arguments (and therefore cost and delay), even where it might not be quite fair in the individual circumstances of the case.

For many couples, their earnings during the relationship and their future earning capacities will be broadly similar, so an equal division of the assets with a clean break is the obvious answer. But there will be many cases where the disparities are greater. The implicit policies and assumptions on which marital case law has been developed may apply with much less if any force to many civil partnerships.

In particular, few if any civil partners will conform to the stereotype of 'the husband' or 'the wife' that practitioners are so accustomed to. It may be that new solutions will be required '“ and they may apply just as well to childless dual-career marriages.

In the meantime, there is uncertainty. Few clients will want to pay for a test case, so negotiation is the only sensible answer. In many cases, the litigation risk will be considerable. Unless district judges are very robust at the financial dispute resolution hearing, this is likely to reduce the quantum of settlements.