Gay Times March 08 - Issue 354
The Gay Divorce
So, you met him, married him, and now you're over it. But how do you go about ending your Civil Partnership? As we've just passed the point where the first Civil Partnerships can be dissolved, GT explains how to make a separation as pain-free as possible
More from Gay Times March 08 - Issue 354
Even now, many lesbians and gay men don't realise that registering their Civil Partnership (CP) has legal consequences. They are even more surprised to learn that when they split up they have to go through a court procedure very similar to divorce to end their relationship and sort out financial claims.
To legally end your CP you must get a court order 'dissolving it'. The procedure is called 'applying for a dissolution'. As well as telling you how to register your CP, the Civil Partnership Act tells you how to apply for a dissolution.
A court procedure sounds stressful and expensive but it doesn't have to be. If you get it right, you can get your dissolution and sort out your finances without having to venture inside a courtroom.
As a solicitor, here are my handy hints for a successful dissolution: First, get some legal advice. Don't feel guilty about getting advice, chances are that your ex has already done so, even if he won't admit it. Getting advice from a solicitor doesn't mean that you're going to end up in an expensive court dispute. In fact, you'll have a better chance of getting it right and staying out of court if you each instruct a solicitor as soon as possible. Even if you aren't sure that you can afford one, many will give you a free half-hour consultation, so at least make the most of that.
Choose an experienced family law solicitor, preferably one who is a member of Resolution (www.resolution.org.uk). Resolution solicitors are signed up to a code of practice that promotes a constructive, non-confrontational approach to keep things as amicable as possible and get the best results for their clients.
Keeping things amicable is one thing we gay folk do well. Maybe it's because we've spent so many years living without legal recognition of our relationships that we've learned to sort out our differences without using the law. But now that CPs are here, we have to learn to adapt to legal regulation. This is the flip side of the deal that gave us legal rights.
Whether you decide to use a solicitor or decide to go for the DIY dissolution, the first thing to ask yourself is; "When did we register our CP?" This is important because you can't apply for a dissolution until you have been "civilised" for at least one year. This applies to straight divorces, too. The idea behind it is to prevent people rushing off too hastily and applying for a dissolution immediately after their first tiff.
This rule doesn't prevent you from deciding to separate sooner, it just means that you have to wait before you can apply for your dissolution. There's been at least one dissolution application made exactly one year and one day after the registration. It couldn't have been made a day sooner.
If you're talking to a solicitor, don't be offended if the next question they ask is whether there's any chance of reconciliation. The Civil Partnership Act requires all solicitors to discuss this with their clients and you're only entitled to dissolve your CP if your relationship has broken down "irretrievably". This is exactly the same as straight divorce.
The Civil Partnership Act goes on to say that you must prove that the irretrievable breakdown has occurred for one of four possible reasons:
Your partner has deserted you. Legal desertion doesn't mean he went out one night and didn't come back, but you've since heard he's been seen around town with someone else. Desertion has a much more technical meaning, which involves proving that a) your ex has ceased to live with you for at least two years, and b) he intends to end your relationship permanently. As proving what is going on in someone else's mind is fraught with difficulty, this makes desertion a non-starter in the vast majority of cases. It is used in less than half a percent of divorce cases.
You've been separated for five years. This won't apply to any civil partners until December 2010 at the earliest (no-one has been civilised long enough to have been separated for five years yet!). So this, too, is a non-starter for the time being.
You've been separated for two years and your soon-to-be-ex-partner consents to the dissolution. We're just at the time when some of the very earliest civil partners, who separated almost immediately after registration, may have been separated for long enough. Inevitably the number of civil partners who can use this reason will increase day by day. One thing to remember is to make sure that the other person does actually consent. Get it in writing before you apply. If you can't prove that he consents, you won't get your dissolution, even if you've been separated for the two years.
If you don't want to wait five or even two years and you want an immediate dissolution, your only option is to make an application based on your soon-to-be-ex-partner's behaviour. For this, you need to prove that he has behaved in such a way that it makes it unreasonable to expect you to continue living with him. This is how most divorces are started, and it's likely to continue to be the most common reason for a dissolution. To get a dissolution based on behaviour you have to give details of the other person's behaviour in the application, and they get to read and object to what you've said. So the trick here is to say just enough to convince a court that you're entitled to your dissolution, but not so much that the other person feels obliged to defend the application.
Unlike straight divorce, adultery doesn't feature as a valid legal reason for dissolving a CP. This is because the legal definition of adultery is sex between a man and a woman, so it's assumed to be irrelevant to lesbian and gay relationships, and no-one wanted to discourage us from going straight if we want.
Whether your civil partner goes off with another man or another woman, it may or may not be legal adultery, but either way you can't dissolve your CP because of it. You can, however, refer to it as yet another example of your soon-to-be-ex's "unreasonable behaviour."
There are two further points you need to know before you rush off to write your unreasonable behaviour application: First, don't name anyone else in your application (however tempted). If you do, then you have to notify them of the application and give them the opportunity to defend any accusations. Second, make sure that the last incident of unreasonable behaviour you refer to happened less than six months ago. If it was more than six months ago and you patched it up and carried on living together afterwards, it's legal water under the bridge.
If all this sounds like too many rules, do remember that it's worth getting your application right from the beginning. If you do, there's every chance you'll get your dissolution without having to see the inside of a courtroom.
What you're aiming for is an application that ticks all the right legal boxes and that your almost-ex doesn't defend. That way, the court can quickly confirm your entitlement to an 'interim dissolution order'. This is a temporary court order confirming that, after a cooling-off period of six weeks, you're entitled to a final dissolution order that will legally end your CP.
Before you ask for your final dissolution order you should sort out the finances, even if you don't think there are any worth sorting. To do this, you must get a separate court order confirming how any money and property is to be divided, or confirming that there's nothing to divide so there should be a financial "clean break" between you. If you don't, you risk the nightmare scenario that, years later, just as you win a 1million pounds or inherit a country pile, your ex pops up again to claim half. I'm not joking, it does happen to the unwary.
You may not have realised it but, when you got civilised, you each made a legal commitment to support one another financially. So, when the relationship breaks down, each of you automatically has financial claims against the other. These are:
A share in each other's property (regardless of whose name it's in)
A one-off lump sum of cash to equal out your financial situation
Ongoing financial support (or an extra one-off payment to compensate you for losing it)
A share of the other's pension
The idea of these financial claims is to protect partners who may be in a weaker position financially or, for example, who've given up work to look after the home or care for their civil partner or another family member. Without the CP, they would have almost no legal protection.
Each individual situation is different, but the Civil Partnership Act provides a list of the factors that must be considered when sorting out a fair financial settlement. These are practical things like your ages, health, the length of your relationship and your financial resources. If you have children (for example, you've adopted together) then their needs should be prioritised.
However emotionally cheated you feel about the break-up, don't be sidetracked into thinking that this has any real relevance to the finances. You aren't entitled to more money simply because you feel hurt, nor do you have to pay your nearly-ex more just because you feel guilty.
Neither of you can be expected to make any decisions about whether to pursue your financial claims until you have each provided the other with a full statement of your financial position. There's a set format for doing this and a minimum of information that everyone, without exception, is obliged to provide. As long as you've exchanged financial statements and you can show that you've made informed decisions about your possible legal entitlements, then a court is likely to approve any financial agreement that you reach, and it'll be virtually impossible to overturn it later if you change your mind. So it's important to get it right first time.
Once you have your financial order, you can then safely ask for your dissolution to be finalised.
Words: Kahn Priestley (a solicitor with Healys, who have offices in Brighton and London. E-mail her at email@example.com or phone on 01273 669124)