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Civil Partnerships for Heterosexual Couples Moves Step Closer - How Would it Differ from Marriage?

Civil Partnerships for Heterosexual Couples Moves Step Closer – How Would it Differ from Marriage?

Published on
Peter Jones
Founder of
Jones Myers
Family Solicitors

A bill, which if passed, would enable opposite sex couples to enter a civil partnership, will proceed to the House of Lords after passing its second reading.

Since 2004 only same-sex couples in the United Kingdom could be in a civil partnership which gives them the same rights, responsibilities and entitlements as married couples in key areas.

The milestone move to extend civil partnerships to heterosexual couples has been championed after the Supreme Court ruled that current laws are discriminatory to restrict civil partnerships to gay couples and incompatible with the European Convention on Human Rights.

The case centred on 37-year-old Rebecca Steinfeld and 41-year-old Charles Keidan who met in 2010, became engaged in 2013 and have two children.

Saying the “legacy of marriage”, which they believed treated women as property for centuries, was not for them, the duo became embroiled in a long legal battle for a civil partnership which they felt would best suit their relationship and life circumstances.

Civil partnerships are widely believed to give unmarried couples and their children greater security. Couples in these partnerships and married couples have the same rights regarding their children and applying for child arrangement orders and relating to financial remedies which include maintenance and property rights.

The similarities extend to protection from domestic abuse, inheritance claims and the process which must be followed to dissolve the relationship – with a decree absolute required to terminate a marriage and what is called a final dissolution order or nullity order needed to terminate a civil partnership.

However, whereas in a marriage adultery is one of the five reasons for divorce, civil partnerships cannot be dissolved due to adultery. The second main difference between civil partnerships and marriages is that civil partners cannot regard, or allude to themselves as being ‘married’.

The bill paving the way forward for heterosexual couples to enter into civil partnerships requires Royal Assent to become law.

With over 3.3 million cohabiting couples in Britain, many of whom have children, the outcome for those seeking an alternative way to cement their relationship and commitment will no doubt be eagerly awaited.

However, no matter what drawbacks there may be, a civil partnership offers a good deal of security and is better than the “no man’s or no woman’s land of cohabitation when there may be no rights at all.

Click here for more articles by Peter Jones

About Peter Jones

Peter Jones is one of the country’s leading divorce and family lawyers. A qualified arbitrator and mediator, Peter set up Jones Myers as the first niche family law firm in the north of England in 1992 and has acted for a string of high-profile clients.

Renowned for his sympathetic approach, he is a former national chairman of Resolution, a former Deputy District Judge – and instigated the D5 Group of law firms that promotes excellence in family law. www.jonesmyers.co.uk

Civil Partnerships Bill proceeds to committee in House of Lords

Amendments to be laid before the House in committee

Featured Photo by Gavin Penor on Unsplash

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Civil Partnerships – A Step in the Right Direction?

Published on
Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

In the wake of a Supreme Court ruling in June, heterosexual couples will now be given the chance to form civil partnerships.

The new legislation, which follows the tireless campaign efforts of Rebecca Steinfeld and Charles Keidan, aims to address a deep-rooted and long-standing imbalance in the law.

Steinfeld and Keidan were successful in their recent campaign for civil partnerships to be opened up to heterosexual couples, stating that it was a “major step forward”.

Theresa May announced earlier this month that all couples in England and Wales will have the legal rights to enter into a civil partnership whilst the Scottish government continue to take steps in the right direction.

Created in 2004, civil partnerships have previously been an exclusive unification ceremony restricted to same-sex couples only, however in light of recent events, this is set to change.

Since the legalisation of same sex marriage under the 2014 Act, homosexual couples have had the ability to choose between two different options that both formalise a relationship whilst giving both parties the ability to acquire rights similar to those held by married couples.

It is since these changes to the law in 2014 that an increasing number of people have started to campaign in the hope to equalise the imbalance of traditional heterosexual partnership ceremonies.

The court also issued a statement on the matter, declaring that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights.

There are numerous reasons as to why heterosexual couples would prefer to enter into a civil partnership rather than marriage, the overriding reason being that marriage is seen as outdated and patriarchal.

Unlike marriage which has deep-rooted historical, religious and gendered connotations, civil partnerships offer couples the ability to form a relationship based on their own values and culture.

Despite social advancements and changes in attitudes that promote gender equality, marriage still continues to treat women as property and as a result people are seeking alternatives that are more reflective of modern society.

Families are also trying to set an example for future generations by raising children as equals and entering into a civil partnership which places importance on equality and symmetry is the best way of achieving this for many.

Furthermore, opting for a civil partnership will give cohabitating couples the legal rights and protection they would otherwise not be entitled to, without having to embark on the traditional route of marriage.

Many cohabiting couples believe that they are protected under ‘common law marriage’, however unmarried cohabiting couples have no protection or rights to their partners assets and this only accentuates the stresses when an individual finds out during separation proceedings or due to the death of their partner.

The civil partnership reform, which was pioneered by “accidental campaigners” Rebecca Steinfeld and Charles Keidan, gained an enormous amount of support during the 4 year process with more than 130,000 signatures for an online petition.

Equalities Minister Penny Mordaunt has promised that change to civil partnership laws will happen “as swiftly as possible”, with the legislation set to be introduced in April 2019.

Despite the positive steps that are being taken to equalise partnership ceremonies, there still remains a gap in the law regarding cohabiting couples that don’t want to enter into a civil partnership or marriage and their legal protection.

Click here for more articles by Kerry Smith

ABOUT KERRY

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

Photo by Gift Habeshaw on Unsplash

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Isle of Man Heterosexual Civil Partnerships not Recognised by UK Law

Published on
Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

The Isle of Man has become the only place in the British Isles to allow heterosexual couples to enter into civil partnerships.

However, the situation is not entirely a straightforward one, with the UK saying that it will refuse to recognise civil partnerships registered between opposite-sex partners on the Isle of Man.

Since marriage was legalised for same-sex couples, the UK has been left with a situation where same-sex partners can enter into either a marriage or a civil partnership while opposite-sex couples can only enter into a marriage.

To some, this situation has made sense, as civil partnerships were originally conceived as a way to give homosexual couples the rights of marriage at a time when they still could not enter into a “full” marriage.

However, some heterosexual couples have expressed a wish to enter into a legally-recognised partnership without the cultural baggage of a marriage, and others have perceived an imbalance in the current system.

As such, there have been some calls to allow civil partnerships for opposite-sex partners. So far, however, the Isle of Man (which is not part of the UK) is the only part of the British Isles to recognise such partnerships.

The Isle of Man first started allowing opposite-sex civil partnerships this summer.

On 22nd July, the island implemented the Marriage and Civil Partnership Act 2016, which allowed same-sex couples to marry on the island as they can in the UK and also enabled heterosexual couples to enter into civil partnerships.

It was expected that this would place the rest of the country under pressure to follow suit, such as LGBT rights advocate Peter Tatchell who said that people would “wonder if the Isle of Man can have equal civil partnerships for opposite sex couples why not England, Wales, Scotland and Northern Island.”

Tatchell also said that, if heterosexual couples travelled to the Isle of Man in order to enter into such a partnership, this would place the UK in a position of having to decide whether those partnerships would be legally recognised.

The Isle of Man officials said at the time that they expected opposite-sex civil partnerships registered on the island to be recognised throughout the country in the same way as traditional marriages.

The UK, however, has since reached a decision that it does not intend to recognise these unions.

In October, the question was raised in earnest when a London couple, consisting of opposite-sex partners, did indeed travel to the Isle of Man specifically to enter into a civil partnership.

In a statement to parliament intended to resolve the matter, Caroline Dinenage, Equalities Minister, reiterated that “The 2004 Civil Partnership Act created civil partnerships for same sex couples only.”

She went on to say: “As opposite sex couples cannot lawfully register a civil partnership here, the Act provides that couples registering a relationship overseas are not to be treated as having formed a civil partnership if, at the time the relationship was formed, they were not of the same sex.”

About Kerry

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

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Ending a Civil Partnership or a Marriage: What are the Differences?
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Ending a Civil Partnership or a Marriage: What are the Differences?

Published on
Alexandra Bishop
Alexandra Bishop
Senior Associate
Kingsley Napley

Civil partnerships were first introduced in the Civil Partnership Act 2004 as a way for same sex couples to have their relationships legally recognised. Since 2019 couples irrespective of sex have been able enter into a civil partnership.

There are no real differences when ending a civil partnership or a marriage, or at least there are very few variations. This seems right given the context in which civil partnerships and same sex marriage came into play – to ensure the equal treatment for men and women regardless of sexual orientation to enter into a legally recognised partnership. This same equality and non-discrimination is reflected in the legal process to end a civil partnership or a marriage and the same legal and financial protection is given to couples when a marriage or civil partnership comes to an end.

Disappointingly, the law that protects those in legally recognised relationships is currently still lacking when it comes to protection for cohabiting couples where there is only a limited ability to make financial claims. As such there is a very real difference between ending a civil partnership or a marriage and ending a relationship that is not legally recognised.

Terminology

In England and Wales, aside from a difference in terminology (if you want to end a civil partnership you apply for a dissolution and if you want to end your marriage you apply for a divorce), the rules and the process for dissolution and divorce are the same.

If parties who are married or have entered into a civil partnership in England are seeking to divorce abroad, however, it is important to take specific advice in that jurisdiction. Whilst opposite sex marriage formed in England and Wales is recognised worldwide, civil partnerships and same sex marriages are recognised in some countries but certainly not all. It will very much depend on the jurisdiction where a couple intends to divorce as to whether that country recognises a civil partnership and as to the rights such couples might have under local law, regardless of the clear position in England.

The process for obtaining a divorce or dissolution

Since the introduction of “no fault” divorce on 6 April 2022 when The Divorce, Dissolution and Separation Act 2020 came into effect, the person applying for a divorce or dissolution only has to confirm within the divorce application that the marriage or partnership has broken down irretrievably and no supporting facts or evidence are required. This welcome change has allowed couples to end their marriages jointly and has removed the need for either party to blame the other for the breakdown of the relationship.

The process now takes place online via a court portal. If both parties agree to a divorce or dissolution then a joint application can be made. Alternatively, if just one party agrees to a divorce or dissolution then a sole application would be made. However, parties can only make the application once they have been married or in a civil partnership for over a year. The next stage of the divorce or dissolution is the application for a conditional order (the first stage of divorce and dissolution) which can be made 20 weeks after the application was issued. Once the conditional order has been pronounced there is a minimum timescale of six weeks and one day before the applicant can apply for a final order (for married couples) and a dissolution order (for couples in a civil partnership), which legally ends a marriage or partnership.

There is a very slight difference in the grounds required to annul a marriage compared to a civil partnership. Annulment is a different way of ending a marriage or civil partnership. Unlike divorce, either party can apply for an annulment in the first year of marriage or a civil partnership, although there needs to be very specific reasons for this. Annulment is very unusual. One of the grounds to be able to annul an opposite sex marriage is that a marriage has not been consummated since the wedding, although this does not apply to same sex marriage or civil partnership. Another reason a married couple could annul is because the respondent had a sexually transmitted disease when they married and the applicant was unaware of it at the time. Again this is not a valid reason to annul a civil partnership. 

Resolving the finances upon a divorce or dissolution

Married couples and couples in a civil partnership have the same financial claims upon a divorce or dissolution under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.  There is no difference in the application of the law in determining a fair and reasonable financial settlement upon a divorce or dissolution. In the context of these financial proceedings, the court has the powers to make the following financial orders: property adjustment orders (transferring properties between spouses or civil partners or a sale of the assets), lump sum orders, pension orders (sharing a pension with your spouse or civil partner) and periodical payments (payments made from one spouse or civil partner to the other to provide income support).

Although the nature of civil partnerships and marriages in terms of their meaning and historical context are very different and couples may have strong reasons for choosing marriage over a civil partnership or vice versa, the legal protections afforded to these couples and the process for ending these relationships are essentially the same.

Read more articles by Kingsley Napley LLP.

About Alexandra Bishop

Alexandra is a Senior Associate in the Family and Divorce team at Kingsley Napley, with experience of all types of private family law work relating to both finances and children.

Alexandra offers practical and realistic advice and provides excellent care for her clients, working through technical legal problems pro-actively to achieve the best possible result.  She has been recognised for her work in Legal 500 2019, one of the leading legal directories in the UK.

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Marriage or Civil Partnership

Marriage or Civil Partnership? What’s the Difference?

Published on
Katie McCann
Katie McCann
Head of Family Law and in-house counsel at Kuits Solicitors

Head of Family at Kuits, Katie McCann, comments on the recent news that a heterosexual couple have lost their Court of Appeal battle to enter into a civil partnership.

This week, Rebecca Steinfeld and Charles Keidan lost their battle to legalise civil partnerships for heterosexual couples in the Court of Appeal.

The couple challenged a previous High Court ruling that was made last year, stating that they could not have a civil partnership because The Civil Partnership Act 2004 demands that they be of the same sex, which they argued was discriminatory.

Many people have since asked me why this couple would bother – if they have the option of just getting married, why would they enter into a stressful and costly litigation situation?

Let’s lift the bonnet on this for a moment. What are the real differences between marriage and civil partnerships?

Well, in a civil partnership, you cannot say you are ‘married’ – no actual ceremony needs to take place (save the signing of a formal document, although most couples do add some ceremonial aspect to their day); there can be no religion involved; and, interestingly, the certificate includes the names of both partner’s parents (instead of just fathers, like on marriage certificates).

Furthermore, adultery cannot be used as a ground for a dissolution (its dissolution in a civil partnership not divorce).

However, when it comes to how finances are dealt with and the law that surrounds that, then the provisions are almost identical to those when dealing with a financial application upon divorce.

Civil partnerships were initially brought about to give same-sex couples the option of legalising their relationship along the lines of marriage, before the law allowed them to marry.

As such, some argue that civil partnerships are just a hangover from the time before lawmakers felt comfortable enough to take the final step to true equality by making marriage available to all – a half-way house before real equality was achieved.

Arguing to allow access to civil partnerships to heterosexual couples is seen by those of this view to be flipping back in time.

On the other hand, there is a case to be heard that the couple’s human rights are being potentially being interfered with, as same-sex couples now have more options than heterosexual couples, which doesn’t exactly lend itself to equality.

In my opinion, the government really should be thinking about cleaning up the legislative landscape. They might, for example, decide to get rid of civil partnerships all together, or make them available to all.

If you would like to discuss any of the issues raised in this article, please call our Family team on 0161 832 3434.

About Katie

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

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Same Sex Marriage vs Civil Partnership

Same Sex Marriage vs Civil Partnership Registrations – What has Changed?

Published on
Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

Marriage became legal for same-sex couples in March 2014, but civil partnerships, generally seen as a substitute for marriage, remained an option as well.

Recent figures from the Office for National Statistics have shown exactly what the effect of same-sex marriage has been on the number of couples opting for civil partnerships.

Registrations for civil partnerships were cut almost in half following the legalisation of same-sex marriage. There were 1,683 such registrations in 2014, the year same sex marriages were introduced, but only 861 in 2015, a drop of 49%.

Compared to 2013, before same sex marriages had become legal in the UK, the difference is even more pronounced. Since then, the number of registrations for civil partnerships is down by 85%.

Interestingly, there have also been changes to the kinds of people who are registering for civil partnerships over the same time period.

For example, there has been a shift towards older people choosing to register for civil partnerships since marriage became an option for same-sex couples.

In 2013 the average age of a man entering a civil partnership was 40.8, and for a woman it was 37.9. In 2015, these figures had risen to 48.5 for men and 49.1 for women. While in 2013 just 19% of those entering civil partnerships were aged 50 or above, in 2015 couples over 50 accounted for 48% of new civil partnerships.

Men seem to have a greater tendency than women to continue to choose civil partnerships over marriage.

2015 saw the highest proportion of male civil partnerships since the year of their introduction in 2005.

Initially, men were more prevalent in the formation of civil partnerships but the split between men and women later evened out to fluctuate each side of the 50/50 mark. In 2015, however, men became decidedly the larger group of new civil partners and accounted for two thirds of all civil partnerships formed.

Women, on the other hand, more readily took up the opportunity to marry same-sex partners. Between the introduction of same-sex marriage in March 2014 and June of the following year, female couples accounted for the majority of marriages between partners of the same sex.

As civil partnerships are often seen as a substitute for marriage aimed at same sex couples, many have questioned whether this kind of union has a future now that such couples are able to simply get married.

Couples who were already in civil partnerships have the right to convert their existing legal union into a marriage, and many have chosen to do so. Furthermore, the data shows that couples are largely and increasingly choosing marriage over a civil partnership now they have the option, and there is little expectation that this trend will do anything but continue.

There are, however, opposite-sex couples campaigning for civil partnerships to be opened up to them, as currently these kinds of unions are only open to same-sex couples.

Some opposite-sex partner’s feel for various reasons, such as objections to the cultural and ideological baggage associated with marriage, that they would like access to an alternative that is more along the lines of civil partnerships.

If civil partnerships do continue to exist in years to come, this may be the purpose that they serve.

About Kerry

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

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‘I’m Keeping the Kids!’ – What to Do If Your Ex Won’t Return the Children After They Have Spent Time With Them

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Francesca Dooley
Trainee Legal Executive (Associate Member)
Family team, Birketts LLP

Worried because your ex hasn’t returned the children after they have spent time/lived with them? Francesca Dooley, Trainee Legal Executive in the family team at Birketts LLP, explains your legal options, when to call the police, and how a family solicitor can help.

When a co‑parent refuses to return the children after an agreed period of spending time/lived with, it can be frightening, stressful and emotionally overwhelming. Many parents are unsure what their rights are, or what practical steps they can take in the moment. This guide explains the legal position, what you should do straightaway, and the options available to help you restore normal arrangements as safely and quickly as possible.

Is it against the law if my ex doesn’t return our children?

In England and Wales, the law treats this situation differently depending on whether there are existing court orders:

  • Where there is a Child Arrangements Order in place
    If a Child Arrangements Order (CAO) is in place setting out the time the children live with/spend time with each parent and the other parent does not adhere to this then they are in breach of the court order. This is a serious matter, and the court can enforce the order. However a parent can admit to breaching an order if they say they have a reasonable excuse for example that there is a safeguarding reason not to return the children to the care of the other parent.
  • Where there is no court order
    If no CAO exists, the police are limited in what they can do unless there is an immediate safeguarding concern. Both parents typically have parental responsibility, which means each parent has the right to have the children with them unless a court order says otherwise. A parent can’t ‘kidnap’ their own child/ren. The police may do a welfare check, but generally are not keen to get involved.

However, refusing to return the children can amount to child abduction if one parent removes the children without consent and without a reasonable excuse from the jurisdiction of England and Wales.

Step 1: Try to Make Contact and Stay Calm

Although emotions run high, your first step should be to:

  • Attempt contact with the other parent by phone, text or email
  • Ask for a clear explanation of the delay
  • Keep records of all communication

Often, misunderstandings can be resolved without escalation, but documenting everything is important if the matter goes further.

Step 2: Consider Contacting the Police

The police can intervene in some circumstances, such as:

  • Where a Child Arrangements Order states the child/ren are to be in your care
  • Where there is a risk of harm/safeguarding reasons
  • Where a parent threatens to take the children out of the jurisdiction
  • Where the children have been taken by someone without parental responsibility

Police may use their powers under the Child Abduction Act 1984, but they will generally try to encourage the other parent to comply voluntarily.

If there is no immediate risk, the police are likely to advise you to seek legal advice/a Family Court remedy.

Step 3: Seek Legal Advice Quickly

A family law solicitor can advise on:

  • Applying for a Child Arrangements Order (if none exists)
  • Enforcement of an existing CAO
  • Prohibited Steps Orders, preventing removal of the child
  • Specific Issue Orders, addressing particular disputes
  • Emergency remedies where the child’s welfare is at risk

Early legal advice is key to preventing the situation from escalating.

It is important to protect a child from conflict and any communications with the other parent should set out the child’s experience of this conduct, and the impact that they were no doubt expecting to come back to the care of the other parent. Further that there should not be conflict at school (parents jostling to collect a child/ren), nor should a child be kept out of school.

Step 4: Apply to the Family Court (Urgently If Necessary)

If your ex continues to refuse to return the children or there is a safeguarding concern, you may need to apply to court.

Emergency Applications

You can apply without giving notice to the other parent if:

  • You believe the children are at immediate risk
  • The other parent has threatened to take them abroad
  • There is a history of non-return

The court can make urgent interim orders for the return of the children. They are generally very reluctant to do hearings without notice to the other parent. They will list at short notice instead. There are special provisions in the law relating to fear that a child may be taken out of the country to have female circumcision for example.

 Enforcement Applications

Where a CAO has been breached, the court can order:

  • Warning notices
  • Unpaid work requirements
  • Compensation for financial loss
  • Varying the existing arrangement, including changing where the child lives in serious cases

The court’s focus will always be on the child’s welfare, not punishing parents but repeated non-compliance is taken seriously. However as set out above a parent will be asked if they had a ‘reasonable excuse’

The family court is reluctant to make punitive orders, including for costs as the general rule is no costs are awarded in children proceedings.

Step 5: Consider Mediation (If Safe to Do So)

If there is no immediate risk and communication is still possible, mediation can help resolve:

  • Return arrangements
  • Future contact schedules
  • Handover arrangements
  • Holiday contact and communication

Mediation is voluntary but often quicker and less stressful than court.

How to Protect Yourself Against Future Problems

You can help prevent future issues by:

  • Having a clear, written agreement
  • Using shared parenting apps to record communication
  • Requesting a Child Arrangements Order to formalise living and spending time with arrangements
  • Seeking a Prohibited Steps Order if you fear the children might be taken elsewhere

A structured plan reduces the chance of disputes and provides clarity for both parents.

When to Seek Help Immediately

Contact a family solicitor or the police urgently if:

  • Your ex refuses to disclose your children’s location
  • You suspect they may be taken abroad
  • There is domestic abuse
  • The children are at risk of harm

You do not have to navigate this situation alone.

How Our Firm Can Help

We can support you with:

  • Emergency court applications
  • Enforcement of existing orders
  • Drafting clear and robust contact arrangements
  • Advice tailored to your family’s situation
  • Representing you in negotiations or court proceedings

Our priority is to protect your children’s welfare and help you restore stability as quickly as possible.

About Francesca Dooley

Francesca is a Graduate Member of the Chartered Institute of Legal Executives (MCILEX) and joined Birketts as a Trainee Legal Executive in May 2023. She works within the Family Team in the Ipswich office.

Since July 2024, Francesca works closely with Katie Beaven, Juliet Harvey and Ivana Radovic assisting them in providing divorce advice, financial remedies, separation advice/deeds, dissolution of civil partnerships, children arrangements, prenuptial agreements and post-nuptial agreements.

Francesca also deals with surrogacy, private adoption matters, declarations of parentage, as well as platonic co-parenting arrangements.

Francesca was previously working in Birketts’ Property Litigation Team, assisting individuals with high value and complex property disputes. This experience has refined Francesca’s ability to assist clients in resolving their disputes, whether through court or via Alternative Dispute Resolution, and be a source of support when emotions are running high.

Francesca is currently studying with CILEX Law School to qualify as a CILEX Lawyer. Francesca has completed both the Foundation Stage and the Advanced Stage and is now in her final year studying the Professional Stage. Prior to joining Birketts, Francesca has gained over 12 years’ experience working as a Paralegal and assistant in areas including Mental Health Law and Dispute Resolution.

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Divorce & Disabled Children: Why a Child’s Needs are Paramount
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Divorce & Disabled Children: Why a Child’s Needs are Paramount

Published on
Sarah Whitelegge
Sarah Whitelegge
Legal Director
Myerson Solicitors

Why a child’s needs are the paramount consideration on divorce

On divorce, the court will consider a list of factors under section 25 of the Matrimonial Causes Act 1973 when deciding how assets are to be divided.

Section 25 (1) provides that the court must give first consideration to the welfare of a child of the family who has not attained the age of 18.

The Matrimonial Causes Act 1973, Section 52 (1) defines a child of the family as:

  • A child of both parties; and
  • Any other child who has been treated by both parties to a marriage as a child of their family (not including a foster child placed with the parties as foster parents by the local authority or voluntary agency).

The court will have regard to the child’s housing and day to day income needs and such needs may take on a greater significance in comparison with the other factors to which the court must have regard to in cases where the assets and means of the parties are limited.

Factors the court will consider

The court must have regard to all the circumstances of the case and will look at all the relevant issues that are not specifically address in the Matrimonial Causes At 1973 Section 25(2) checklist.

 The Section 25 factors considered by the court on financial provision include the following:

  • The income, earning capacity and other financial resources each party has or is likely to have in the foreseeable future.
  • The financial needs, obligations and responsibilities each party has or is likely to have.
  • The standard of living enjoyed by the family before the breakdown of the marriage.
  • The age of each party and the duration of the marriage.
  • Any physical or mental disability of either party.
  • The contributions each party has made or is likely to make to the welfare of the family.
  • The conduct of each party.

The weight given to each factor depends on the particular facts and circumstances of each case. The objective is to achieve a fair outcome. An equal division of the marital assets may be appropriate where there is sufficient capital to house both parents. In cases where the assets are more limited, the needs of the child may override issues of equal sharing.

Dividing assets in a divorce is rarely straightforward but when a child has significant physical or learning disability, the question of housing is important. If the family home has been adapted with ramps, hoists, widened doorways or sensory safe spaces, it may be impractical ad unsafe to move a child to a new property that is not set up to meet the needs of the child.

Consideration will need to be given as to whether the adapted property should remain with the parent who is the primary carer.

The court will consider expenses associated with the child’s accommodation and basic expenses such as the cost of food and clothing. The court will also have regard to the standard of living of the family and all the circumstances of the case, including how the children are educated.

Section 25(2) above refers to the financial needs, obligations and responsibilities each parent has in relation to a child, but these responsibilities will not disappear when a child turns 18 particularly if a child has lifelong needs.

If a child has a disability, this may constitute special circumstances that may allow a financial provision order to be made that extends beyond their 18th birthday. Additionally, the court may make a maintenance order to meet expenses attributable to the child’s disability provided the criteria set out in CSA 1991, Section 8 (8) are fulfilled.

The court will wish to ensure that adequate provision is made for children with a disability and it may consider making periodical payments order or lump sum order to meet capital expenditure if, for example, any special equipment is required.

Child support for children with special needs

The court has jurisdiction to make orders for maintenance in respect of a child with special needs, notwithstanding the general restrictions upon making periodical payments for the benefit of a child who falls within the jurisdiction of the Child Maintenance Service. The court can make these orders regardless of whether an application for a maintenance calculation has been made.

Nesting arrangements

If separated parents feel that it will be of benefit to their child to provide some consistency, consideration may be given to a nesting arrangement. This involves separated parents taking it in turns to look after their children in the family home while the other parent temporarily lives elsewhere. This means that the child can stay in one home while parents rotate in and out of that home.

For a disabled child, this can be a helpful arrangement as it avoids moving equipment that the child may need and ensures the child remains in a familiar adapted space.

However, what may suit the child’s welfare may not be financially sustainable for the parents long-term and nesting may be a temporary measure rather than a permanent solution.

Planning for transition

Many parents of disabled children will find that support that was available through children’s services may fall away and for separated parents in divorce proceedings this presents an added dimension: financial settlements and child maintenance orders often assume that support for children ends at adulthood, but for many young disabled people their needs remain lifelong.

The Care Act 2014 provides when the local authority has carried out an assessment, information should be provided about whether the young person or child’s acer is likely to have eligible needs for care and support when they turn 18.

The Care Act 2014 sets out when the local authority has a responsibility to meet someone’s care and support needs. The act gives local authorities a legal responsibility to provide a care and support plan (or a support plan in the case of a carer). The personal budget must be included in the plan, and this adds to a person right to ask for a direct payment to meet some or all their needs.

The Children and Families Act creates a birth to 25 years Education, Health and Care Plan for children and young people with special educational needs and offers families personal budgets so that they have control over the type of support they receive.

Practical tips for separating parents of disabled children

On separation it is important to consider the following questions:

  • Should child maintenance or financial provision extend beyond 18 where a disabled young adult cannot support themselves
  • Can any settlement include provision for long-term care, sometimes structured through a trust
  • How should parents balance their own retirement planning against the knowledge that their child may always need financial and practical support

Read more articles by Sarah Whitelegge.

Read more articles by Myerson Solicitors.

About Sarah Whitelegge

Sarah Whitelegge is a Legal Director at Myerson Solicitors, Altrincham, Cheshire. She advises on a wide range of family matters including divorce, dissolution of civil partnerships, financial settlements, separation, co-habitation, pre and postnuptial agreements, disputes regarding children and domestic violence.

She is particularly experienced in matters concerning complex children matters and has experience of dealing with applications for child arrangement orders, prohibited steps orders, specific issue orders, and special guardianship orders.

She has significant advocacy experience, having regularly appeared in the Family Courts representing clients in relation to private law children matters, financial order proceedings and domestic violence matters.

Sarah is a committed member of Resolution and has achieved specialist accreditation in private children law and domestic violence.

For more information about Myerson Solicitors and its Family Team, visit: https://www.myerson.co.uk/personal/family-law

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Breaking Up is Hard to Do: Separation, Finances and Children for LGBTQ+ Families
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Breaking Up is Hard to Do: Separation, Finances and Children for LGBTQ+ Families

Published on
Joe Ferguson
Joe Ferguson
Family Law Solicitor
Myerson Solicitors

The end of a relationship is never easy, but for LGBTQ+ couples, navigating the legal and emotional aspects of separation can come with distinct challenges. For LGBTQ+ families knowing your rights is vital – particularly if your family has been formed through surrogacy, adoption or other routes that can carry additional legal considerations.

In this article, we explore how separation works for same-sex and LGBTQ+ couples, how financial matters are resolved, and what options are available when children are involved.

Ending the relationship: divorce and civil partnership dissolution

LGBTQ+ couples have had the legal right to marry since 2013 in England and Wales, and civil partnerships continue to be recognised. Both marriage and civil partnerships can be formally ended through the family court – divorce or dissolution, respectively – and the process is now based on a no-fault system. This means that neither party needs to prove wrongdoing for the legal process to begin.

Whether it is a divorce or a dissolution the procedure is the same: an initial application, followed by a conditional order, and finally, a final order to formally end the marriage or civil partnership.

But while the legal framework is the same for all couples, LGBTQ+ individuals may face different questions when it comes to resolving finances and parenting arrangements, particularly when their relationship pre-dated legal recognition.

Financial matters: reaching a fair outcome

Financial settlements can be one of the most emotive and difficult topics to brooch following separation. Like opposite-sex couples, same-sex spouses and civil partners are entitled to a full range of financial remedies. These can include:

  • Lump sum payments
  • Spousal maintenance
  • Property transfers or sales
  • Pension orders
  • A clean break, ending future financial ties

The court will assess the financial resources, needs and contributions of each party amongst other factors, and aims to reach an outcome that is fair and meets the needs of the parties and any children involved.

However, there can be added complexity when considering assets that were acquired before marriage – especially for couples who lived together for many years. Determining whether these assets are “marital” or “non-marital” can become a key issue, particularly where significant property, pensions or savings are involved. Cohabitation alone does not automatically give rise to legal rights, though it is typically taken into account that any period of seamless cohabitation prior to the date of the marriage or civil partnership when determining the length of the marriage. Accordingly, timelines and clear evidence of cohabitation is often required. It should be noted of course that many LGBTQ+ couples were unable to enter into marriage or civil partnership previously owing to the lack of provision within the law for them. Accordingly, these arguments can be important as evidence of the enduring relationship between the parties. 

Children: supporting parenthood in all its forms

For LGBTQ+ families, parenting often involves a range of routes – from adoption and surrogacy to donor conception. These arrangements can create additional legal considerations during a separation.

The starting point is to establish parental responsibility: the legal authority to make decisions about a child’s health, education, and welfare. Biological and adoptive parents usually have parental responsibility automatically, but others (such as non-birth parents in a surrogacy arrangement) may need to apply for parental orders, declarations of parentage or child arrangements orders. 

If both parents are legally recognised, they may choose to agree parenting arrangements voluntarily. Options include:

  • Mediation: This process can help couples reach agreement on how children will be cared for, where they will live, and how contact will work. Mediation is not legally binding but can lead to a more amicable, cost-effective solution.
  • Collaborative law: This process enables separating couples to work together with trained professionals to resolve disputes without going to court. Everyone agrees to work together as a team to resolve disputes without going to court. 
  • Negotiation: working with solicitors, with the benefit of independent legal advice, to work out what would be best for their family, avoiding costly and potentially acrimonious court proceedings.

If agreement cannot be reached, the family court can make a Child Arrangement Order which is legally binding and sets out the child’s living and contact arrangements. The court’s priority is always the child’s welfare.

Planning ahead for a smoother separation

While the legal system provides equality on paper, LGBTQ+ families may still encounter unique issues when relationships end. The reality is that the law in this area is continues to evolve but has not caught up to the social realities of life as an LGBTQ+ person and the unique family dynamics which are increasingly commonplace. The key to navigating these challenges is early advice and a tailored, bespoke approach that reflects the structure of your family, the history of your relationship, and the complexities involved.

If you are an LGBTQ+ individual facing the challenges associated with separation and need assistance, the team at Myerson Solicitors are here to support you with clarity, empathy and practical expertise.

Read more articles by Myerson Solicitors.

About Joe Ferguson

Joe Ferguson is a solicitor in the Family Law team at Myerson Solicitors. He specialises in divorce, financial remedy proceedings, and complex children matters, with particular expertise in supporting LGBTQ+ clients through family law issues with sensitivity and pragmatism.

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Navigating Divorce As An LGBTQ+ Couple In The UK.
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Navigating Divorce As An LGBTQ+ Couple In The UK

Published on
Chris Sweetman
Chris Sweetman
Editor at The Divorce Magazine
Director at Fair Result

Divorce is a significant life event that can have profound emotional, financial, and legal implications for anyone. Unfortunately, for LGBTQ+ individuals, the journey can be further complicated by societal prejudices, lack of understanding, and specific legal nuances. While the legalisation of same-sex marriage in the UK in 2014 marked a significant milestone, there are still complexities and potential challenges that LGBTQ+ couples may face during the divorce process.

Grounds for Divorce

In recent years, the UK introduced no-fault divorce laws, allowing couples to divorce without having to cite reasons such as unreasonable behaviour or adultery. This change brings greater simplicity and reduces potential conflict around assigning fault.

However, for LGBTQ+ couples, there may still be nuances to navigate when it comes to defining concepts like adultery within the context of their relationships. Some LGBTQ+ relationships have non-traditional structures or different boundaries around monogamy. Working with lawyers experienced in LGBTQ+ family law can ensure these nuances are properly understood and addressed.

Additionally, LGBTQ+ couples may face bias or lack of understanding from some legal professionals if explanations of relationship dynamics are required as part of proceedings. An LGBTQ+-friendly legal team is crucial for ensuring the divorce process is fair and respectful of all relationship styles.

Division of Assets and Finances

The division of assets and finances is a critical aspect of any divorce proceeding. For LGBTQ+ couples, this process may involve unique challenges. For example, if one partner has been financially dependent on the other, determining appropriate spousal support can be complex. Additionally, issues around property ownership and financial entitlements may require careful consideration, particularly in cases where the couple had a long-term relationship before same-sex marriage was legalised.

In a traditional heterosexual marriage, the division of assets and finances is typically based on the principle of fairness, taking into account factors such as the duration of the marriage, each spouse’s financial contributions, and any dependent children. However, for LGBTQ+ couples, additional factors may come into play.

One significant challenge can arise when one partner has been financially dependent on the other for an extended period. In some cases, LGBTQ+ individuals may have sacrificed career opportunities or financial independence due to societal prejudices or the lack of legal recognition for their relationship. Determining appropriate spousal support in these situations can be complex and may require careful consideration of the couple’s unique circumstances.

Another potential issue is property ownership and financial entitlements accumulated during the period before same-sex marriage was legalised in the UK. In some cases, LGBTQ+ couples may have been in long-term committed relationships for decades before being able to legally marry. Determining how to divide assets and finances in these situations can be intricate, as the legal framework for property rights and financial entitlements may have been different during that time.

Child Custody and Parental Rights

LGBTQ+ individuals have the legal right to adopt and raise children in the UK, and their parental rights are recognised in divorce proceedings. However, navigating child custody and visitation arrangements can be intricate, especially in cases involving surrogacy or co-parenting arrangements.

The legalisation of same-sex marriage in the UK has brought greater clarity and protection for LGBTQ+ parents’ rights in divorce proceedings. Regardless of their sexual orientation or gender identity – both parents are entitled to seek custody and visitation rights, and the court’s primary consideration is the best interests of the child.

However, there may be unique challenges for LGBTQ+ couples when it comes to child custody and parental rights. For example, in cases involving surrogacy or assisted reproductive technologies, legal issues around parentage and parental rights can be complex.

By understanding the legal rights and seeking guidance from experienced professionals, LGBTQ+ couples can navigate the complexities of child custody and parental rights during divorce proceedings with greater confidence and clarity. Ultimately, the primary focus should be on ensuring the best possible outcome for the children involved.

Domestic Partnerships and Civil Unions

Before same-sex marriage became legal in the UK, many LGBTQ+ couples entered into domestic partnerships or civil unions. The dissolution of these partnerships may involve different legal processes compared to traditional divorce proceedings. Couples in this situation must seek specialised legal advice to ensure their rights and interests are adequately protected.

In the UK, civil partnerships were introduced in 2005, providing same-sex couples with legal recognition and rights similar to those of married couples. However, the dissolution of a civil partnership followed a different legal process than divorce. After same-sex marriage became legal in 2014, existing civil partnerships could be converted into marriages, but some couples may have chosen to remain in their civil partnership.

For couples seeking to dissolve a civil partnership, the process is known as “dissolution” rather than divorce.

Additionally, the division of assets and financial entitlements in the dissolution of a civil partnership may follow different rules and guidelines compared to divorce proceedings. Legal professionals must be well-versed in these nuances to ensure a fair and equitable distribution.

Similarly, for LGBTQ+ couples who entered into domestic partnerships or other forms of legal recognition before civil partnerships or same-sex marriage were available, the dissolution process may involve unique complexities. These partnerships may have been governed by different laws and regulations, and the division of assets and financial entitlements could be subject to different considerations.

Discrimination and Sensitivity Concerns

While the law aims to be impartial and non-discriminatory, unconscious biases and prejudices can still influence the attitudes and actions of some legal professionals.

One area where discrimination can manifest is in child custody disputes. Despite legal protections, some judges or legal professionals may harbour biases that could influence their decisions regarding parental rights or the best interests of the child. LGBTQ+ parents may face unfair scrutiny or assumptions about their ability to provide a suitable environment for their children.

To mitigate the risks of discrimination and ensure a fair and equitable process, it’s crucial for LGBTQ+ couples to work with legal teams that are well-versed in LGBTQ+ family law and have a proven track record of sensitivity and inclusivity. These professionals can help advocate for their clients’ rights, challenge biased assumptions, and ensure that the unique circumstances and perspectives of LGBTQ+ couples are respected throughout the proceedings.

It’s important to remember that while discrimination and insensitivity may still exist, the legal system and society as a whole are continuously evolving to become more inclusive and accepting of LGBTQ+ individuals and families. By staying informed, advocating for their rights, and seeking out legal help – LGBTQ+ couples can navigate the divorce process with greater confidence and resilience.

Final Thoughts

Even though the journey may be challenging, LGBTQ+ couples need to understand their rights and seek guidance from professionals who are well-versed in LGBTQ+ family law. By approaching the process with understanding, sensitivity, and a commitment to fairness, couples can navigate the complexities of divorce and move forward with greater clarity and resilience.

Read more articles by Chris Sweetman.

About Chris Sweetman

Chris Sweetman is an independent family solicitor and director of Fair Result – An award-winning law office who pride themselves on using innovative ways to help clients through the stress and complications of a marriage break down.

Chris can be contacted on 07500933818 or via email chris@fair-result.co.uk.

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Navigating your finances through divorce: A comprehensive guide
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Navigating Your Finances Through Divorce: A Comprehensive Guide

Published on
Andrew Robotham
Andrew Robotham
Divorce & Family Lawyer
Woolley & Co Solicitors

Going through a divorce is undoubtedly a challenging time, and it’s crucial to understand that completing the legal process is just one aspect. Sorting out finances is equally important but often overlooked. In this guide, we’ll address common reasons why people delay or avoid settling financial matters, emphasising the potential pitfalls, and offering guidance for a smoother financial transition.

Why do some delay a divorce settlement?

  1. Believing there is nothing to protect: Some couples think they have nothing valuable to protect, so hiring a solicitor seems unnecessary. However, even seemingly modest assets should be properly addressed to avoid future complications.
  2. Self-resolution confidence: Couples who are amicable and believe they can sort out financial arrangements by themselves may delay seeking professional advice. While this may work initially, unforeseen changes or disagreements can arise later.
  3. Cost concerns: The perception that hiring a solicitor is expensive leads some to avoid professional assistance. However, the long-term financial consequences of not settling matters properly can far outweigh the initial cost.
  4. Information agreements: Couples who have informally agreed on financial matters may skip the formal process. Unfortunately, without a legally binding agreement, these arrangements can be challenged in the future.
  5. Postponing due to stress: Some couples decide to delay financial discussions, thinking they can revisit them later. However, procrastination can lead to legal and financial complications down the road.

Importance of timely settlement

Future claims:

Without a consent order, an ex-partner may have legal claims on assets acquired post-divorce, such as lottery winnings or inheritances.

Changing circumstances:

Amicable relations can change due to new partners or altered circumstances. A delay might result in a partner changing their stance on previously agreed-upon terms.

Tax implications:

Delays may lead to unnecessary tax liabilities, especially regarding capital gains tax on property sales not considered the main residence.

Asset valuation:

Waiting to resolve assets can lead to disputes over their current value, potentially disadvantaging one party. It’s crucial to have up-to-date valuations during settlement discussions.

Financial advice and consent orders

Seek professional advice:

Consulting financial advisors and solicitors ensures you make informed decisions and protects your interests in the long run.

Consent orders:

Even if you’ve amicably agreed on terms, formalise the agreement with a court-issued consent order. This legally binding document prevents future disputes and ensures financial clarity.

Conclusion: Take control of your financial future

In conclusion, while the emotional aspects of divorce are undeniable, addressing financial matters promptly is crucial for a secure future. Regardless of the simplicity of your financial situation, seeking professional advice and obtaining a consent order will protect you from potential legal and financial pitfalls. Remember, the initial investment in settling matters now is far less than the potential cost – both financially and emotionally – of neglecting proper financial resolution. If you’ve decided on or are going through a divorce, ensure your financial affairs are in order for a smoother transition into the next chapter of your life.

Read more articles by Woolley & Co Solicitors.

About Andrew Robotham

Andy is an experienced divorce and family lawyer with Woolley & Co, Solicitors. He has built an enviable reputation in the Derbyshire and Leicestershire area. He deals with all areas of matrimonial law, including divorce, children matters, financial settlements as well as civil partnerships, separation, cohabitation, and prenuptial agreements.

In the 2020 edition of Legal 500 Andy is named as a Recommended Lawyer for Family Law in the East Midlands, where it is noted ‘Andrew Robotham’s qualities are numerous. He is able to combine empathy for the situation as well as total professionalism that the circumstances demand’.

You can visit Andy’s profile here for more.

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Is There Any Way of 'Forcing' a Non-Residential Parent to See His/Her Children?
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Is There Any Way of ‘Forcing’ a Non-Residential Parent to See His/Her Children?

Published on
Megan Bennie
Megan Bennie
Family Law Solicitor
Furley Page

For many co-parents, one of the most challenging aspects of separated parenting is when one parent does not choose to spend as much time with their child as the other parent thinks they ought to.   In some cases, a parent may not see their child at all, whether through choice or circumstance.

The short answer to the question of whether a parent can be forced to spend time with their child, which I know will be disappointing for a lot of parents, is no.  If a parent will not spend time with their child, then they cannot be forced to do so.   The courts are not prepared to make orders forcing contact, and it is difficult to see if and how such an order could be enforced, or whether such an order would be beneficial or productive.

It is worth remembering that even if one parent chooses not to see their child, they will still have a responsibility to make child maintenance payments and an application can be made to the Child Maintenance Service if it cannot be agreed directly.

However, where there is already an arrangement in place, by virtue of agreement or a court order, if the arrangement falters, there are steps that can be taken.

There will inevitably be circumstances in which contact does not take place for a period.  For example, illness, holidays, or other life circumstances. Where the change to the contact arrangement is tackled in a way that is sensitive to a child’s needs and courteous to the other parent, this need not be a major issue.

However, in circumstances where the withdrawal from contact/the relationship is for a prolonged period or comes suddenly with no explanation, it can leave children feeling let down, confused and as if they are not a priority.

It can also be distressing for the parent trying to facilitate the contact to see their child upset, and they may feel their efforts are not appreciated, leading to further breakdown in the relationship between the parents.  In such circumstances it may be more appropriate to look at how contact is structured and assess whether a different arrangement might benefit the child and promote contact, allowing for greater consistency.

There are many process options available for these discussions. For example, this could be addressed directly with the other parent, at mediation, by instructing a solicitor or, if all else fails, by making an application to the court:

  • What level is contact set at? The court will bear in mind what is going to be achievable for parents and children.  A parent who struggles to maintain a relationship with very regular contact sessions might be able to achieve less frequent contact, but if that contact is better quality – or actually takes place rather than being cancelled – it could be better for the child involved.
  • By what means is contact taking place? The parent-child relationship may be better maintained by means other than direct face-to-face contact time. Telephone or video calls could bridge the gap, or a parent in difficult circumstances might be able to accommodate those where spending time together in person simply isn’t possible.

For children who might have faced disappointment in the past through repeated or last-minute cancellations, calls or letters might fit more easily into their existing routine and limit the disruption they face, while still maintaining a relationship with the parent they don’t live with.

The age and capability of a child, as well as the effect and perception of any previous issues with contact, are important factors to consider.  What suits one child and promotes positive contact in a particular set of circumstances may not be suitable for another child or another set of circumstances.

If all else fails, the threat that future contact could be reduced can be a ‘stick rather than carrot’ approach to ensuring contact does go ahead.  The court can threaten to or even actually reduce contact, sometimes quite significantly, if it is apparent such a change is in the best interests of the child in question.  However, it would be exceedingly rare to have an order for no contact at all: the court tends to leave a door open for a parent/child relationship to continue except in the most severe of circumstances.

If you have questions about any aspects of child arrangements, whatever your situation, please do feel free to get in touch so one of the team of family law experts at Furley Page can help.

Contact Megan Bennie, Associate Solicitor in Furley Page’s family law team on 01227 763939 or email MEB@furleypage.co.uk.

Read more articles by Furley Page.

About Megan Bennie

Megan Bennie is an Associate in the family law team Furley Page.

Megan joined the team in 2021, having gained valuable previous experience at specialist family law firms featured in the Legal 500 directory.

Megan advises on all aspects of relationship breakdown, whether divorce or separation, including in relation to civil partnerships, dealing with issues such as the appropriate division of finances.

Megan also assists couples seeking to formalise arrangements through pre and post nuptial agreements and cohabitation (or living together) agreements. She can also assist with legal issues arising when cohabitation comes to an end whether there is a cohabitation agreement in place or not.

Megan can provide legal advice on a wide range of areas relating to children including arrangements for contact and who a child lives with, where a child lives (including relocation to another jurisdiction) and in relation to special guardianship and adoption.

Megan is primarily based at the Chatham office but is also available for meetings at either the Canterbury or Whitstable office.

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