How to end a marriage or civil partnership if you’re in a same-sex couple

Although civil partnerships have been around for 20 years this year and same-sex marriage has been in place for just over 10 years, many couples still wonder whether the legal process differs from that of opposite-sex couples.

In this article, we’ll explore how same-sex couples can end a marriage or civil partnership, what to consider when dealing with finances during a separation, and how to protect your assets before entering into a marriage or partnership.

First, a bit of history

To understand how far LGBT+ relationships have come, it’s important to look at some of the key milestones. Over the past two decades, there have been major steps forward in recognising and protecting same-sex couples under the law in England and Wales:

• December 2005 – The Civil Partnership Act came into force, allowing the first same-sex couples to form civil partnerships.
  
• July 2013 - The Marriage (Same Sex Couples) Act 2013 was passed.
  
• March 2014 - The first marriages of same sex couples took place.
  
• June 2018 - The Supreme Court ruled in the  Steinfeld–Keidan case  that restricting civil partnerships to same-sex couples was discriminatory and mandated that the Government change the law.
  
• December 2019 - Couples irrespective of sex can register their intent to form a civil partnership
  
  

You may or may not know, but if you’re a same-sex couple in a civil partnership you can very simply  convert a civil partnership  into a marriage in England or Wales.

Is ending the marriage any different if you’re the same sex?

The short answer is no. Whether you’re in a same-sex marriage, or a civil partnership, ending the marriage is the same. The only difference is that ending a civil partnership is called a ‘dissolution’, rather than a divorce, but the process is exactly the same as a divorce.

Since 2022, all divorces (and dissolutions) now follow a ‘no fault’ process, meaning that neither party can place blame on the other for the breakdown of the relationship. You can now even have a ‘joint divorce’, whereby both you and your ex are divorcing together, rather than one of you divorcing the other.

In a nutshell, the divorce process is as follows:

Interesting statistics

According to an article by the BBC considering Why women file for divorce more than men - BBC Worklife – one suggestion for this is that women gain fewer emotional benefits from divorce than men. The article says that:

However, while this may explain why women in opposite-sex couples start two thirds of divorces, it doesn’t really explain why women in same-sex couple make up 67% of all same-sex divorces.

Dividing up the finances on separation

As with divorce above, if you’re in a same-sex relationship looking to deal with the division of your finances during divorce or dissolution of your civil partnership, then you go through exactly the same process and have exactly the same rights as those of opposite-sex couples.

The law aims to achieve a fair outcome, but this doesn’t always mean a 50/50 split. There are often reasons why one party needs more than the other. It’s therefore important to take advice at an early stage so that you achieve a fair outcome for your particular circumstances, rather than simply agree to a 50/50 which could be an unfair outcome.

No such thing as common law marriage

Whether you’re in an opposite-sex or same-sex relationship, there’s no such thing as ‘common law marriage’. What this means is that if you’re not married or in a civil partnership with your spouse/partner, then if you separate You won’t be entitled to the same financial claims as those who are married or in a civil partnership.

This is a very important point to remember and doesn’t change no matter how long you’ve been with your partner, or if you have children together. This can mean that if you’re cohabiting and separate from your partner, then even though you’ve effectively been living together the same as a married couple, just without having got married or entered into a civil partnership, your claims on separation can be extremely limited. This could leave you in a very vulnerable position financially.

For more advice about this, please see our article Cohabitation Rights Reform: Time for Change – Belderbos Solicitors

Planning ahead: Prenuptial agreements and financial certainty

Many couples are now thinking about their financial situation before they get married and are wanting to either protect assets that they bring into the marriage, or to have certainty as to what division of the assets there will be if they split up. These kinds of agreements are called ‘prenuptial agreements’ but are commonly referred to as ‘prenups’.

Getting married/entering into a civil partnership

Living together – cohabitation agreements

For same-sex couples not wanting to go down either the marriage or civil partnership route, they can also enter into an agreement similar to a prenup, called a Cohabitation Agreement. This will protect you in the same way as a prenup does for those getting married/entering into a civil partnership. It outlines how finances, property and responsibilities should be handled if the relationship ends.