A same sex relationship is a relationship between two people of the same sex or gender. In the United Kingdom a same sex relationship is legally recognised and protected by law through same sex marriage or a same sex civil partnership.
Same sex marriage
A same sex marriage in the UK refers to the legal union of two people of the same sex, with the same legal status and rights as opposite sex marriages. Same sex couples can marry in civil ceremonies, and in religious ceremonies if the religious organisation has opted in and the officiant agrees.
Same sex partnership
A same sex civil partnership in the UK is a legally recognised relationship between two people of the same sex. While civil partnerships and marriages are legally very similar, civil partners cannot refer to themselves as “married,” and there are minor differences in the procedures and documentation (e.g., civil partnership certificates include both parents’ names, while marriage certificates list only fathers).
Both same sex marriage and same sex civil partnership provide legal and financial protections, inheritance rights, next-of-kin status, and parental rights similar to those of opposite sex couples.
How do you end a same sex relationship?
In England and Wales, legally ending a same sex marriage or civil partnership is the same process as ending an opposite sex marriage or civil partnership.
The ground
As long as you have been in the same sex marriage or civil partnership for at least one year, you can apply for a divorce in relation to a marriage, or a dissolution in the case of a civil partnership.
The only ground for ending a marriage or civil partnership is that the relationship has irretrievably broken down. No other details or narrative is necessary.
An irretrievable breakdown of a marriage or civil partnership can be described as a situation in which either or both the parties no longer wish to live together, and the relationship is damaged to the point that it cannot be repaired and continuing the relationship will only further cause loss and damage to the parties.
It is a marriage or civil partnership with no hope of reconciliation no matter how much therapy and/or counselling a couple receives.
The reasons for the breakdown of the relationship can include any of the situations which made up the old grounds for divorce such as behaviour or adultery. Issues that could cause a marriage to irretrievably break down could also include lack of sexual intimacy, financial problems, loss of trust, being separated, inability to communicate, violent or abusive behaviour, growing apart due to different goals and interests, different political or religious beliefs.
How do you prove a marriage or civil partnership has irretrievably broken down?
By signing the Statement of Irretrievable Breakdown in the application for divorce or dissolution.
No other facts or information is required to prove the irretrievable breakdown. The signed statement is taken as conclusive and sufficient evidence that the marriage or civil partnership has irretrievably broken down.
For those couples in a same sex relationship who are against divorce or dissolution, an alternative is for the couple to legally separate.
What is a Legal Separation?
A legal separation is an alternative court process to divorce or dissolution. It is a separation sanctioned by a Court once the Judicial Separation Order is made.
It legally formalises a couple’s separation which allows them to separate and live apart, without divorcing or ending a civil partnership. A legal separation also allows a couple to separate their finances and apply to the Court for financial orders.
Crucially unlike divorce or dissolution, an individual does not have to state that their marriage or civil partnership has irretrievably broken down in order to legally separate. A couple simply need to state that they seek a judicial separation. This is important for couples who do not believe in divorce, or believe the relationship to have completely broken down.
Legal separation is different from entering into a Separation Agreement, which is a private arrangement between spouses without any court process or involvement.
The main differences between divorce and separation are:
- Legal (judicial) separation removes the legal obligation to live together, whereas divorce or dissolution ends the marriage or civil partnership completely.
- Once your marriage or civil partnership has ended by divorce or dissolution you are free to remarry or enter into a civil partnership with another person. With Judicial Separation you remain married and therefore cannot marry another person or enter into a civil partnership.
- If you wish to end your marriage or civil partnership, you must wait for at least one year before commencing proceedings for divorce or dissolution. With Judicial Separation you can apply at any time after the marriage.
- While the divorce process involves two Orders from the Court – a Conditional Order and a Final Divorce Order, Judicial Separation involves just requires one Order called a Judicial Separation Order which provides for the separation of the parties to the marriage.
- A Court can share a pension (Pension Sharing Order) as part of the financial proceedings related to a divorce, but they cannot exercise these powers for Judicial Separation.
What about same sex couples who are cohabiting?
Same sex couples who live together without marrying or entering a civil partnership are called cohabiting partners.
In England & Wales, the legal rights of unmarried cohabiting couples (whether opposite, or same sex) differ significantly compared to married couples or civil partners. The law treats unmarried couples as separate individuals rather than a couple.
Unmarried couples have no automatic inheritance rights or claims to their partner’s pension on death. Therefore, if one partner dies without a Will, the surviving partner has no automatic right to inherit their estate. An unmarried partner is not automatically considered next-of-kin in medical situations.
Even if an unmarried couple live together in a home owned by one party, the other party does not automatically have rights to that property.
An unmarried partner does not have any claim for maintenance for themselves. They may however claim child maintenance if they have children together.
An unmarried father will only have parental responsibility if he is named on the birth certificate.
Apart from getting married or entering into a civil partnership, the only way for unmarried couples to gain legal protection in the event of a break-up is to enter into a Cohabitation Agreement.
What is a Cohabitation Agreement?
A Cohabitation Agreement (sometimes called a Living Together agreement) is a legal document between unmarried couples (whether as an opposite or same sex couple) who are living together. It can confirm the ownership of existing assets (including property), define the financial responsibilities that each party will have to the other, and specify how savings and jointly owned assets will be distributed should the relationship break down.
An agreement encourages a couple to think about fair ways to organise their finances and what will happen if their relationship ends. Making an agreement is not an admission that you think your relationship will fail, but simply a contingency plan for the future.
What can a Cohabitation Agreement include?
An agreement can specify living arrangement and can include a wide range of provisions related to financial and property matters, such as:
- Ownership of property, and how it will be divided in the event of a split.
- Record the payment of any deposit on your home.
- What share of the mortgage or rent you will pay?
- How household bills will be dealt with.
- Bank accounts and money.
- Life insurance.
- Assets such as cars, furniture, other property, jewellery.
- Payment of debts.
- Next of kin rights
- Outline a process for resolving any disputes that may arise between the parties.
- Set out the circumstances under which the agreement will terminate, such as marriage, civil partnership, or the end of cohabitation.
It is important to note that an agreement must be fair and reasonable to both parties.
How do you end cohabitation?
For same sex couples who are not married or in a civil partnership, there is no specific legal process to formally end their same sex relationship if they are cohabiting.
If the couple has acquired property during the relationship, or own assets together, it recommended that the couple enter into a Separation Agreement to cover matters like finances and property division during their separation.
What is a Separation Agreement?
A Separation Agreement is a written contract made between couples if their relationship breaks down that defines how their joint assets and responsibilities will be divided between in the event of separation.
Any couple can enter into an Agreement whether they are in a marriage, a civil partnership or in a cohabiting relationship.
What can be included in a Separation Agreement?
A Separation Agreement can include anything that the couple agree upon and cover a range of areas, including:
- The official date when the parties separated.
- Who pays the mortgage or rent, and household bills?
- Who continues to live in the family home, and/or what happens if it is sold?
- What happens to any debts – for example, loans or overdrafts?
- What happens to savings, investments, and other financial assets?
- Agreements as to any joint business assets.
- What happens to items such as cars or furniture, especially bought jointly?
- Whether maintenance is paid to support one of you and/or any children
- Childcare arrangements – who any children live with and parental access.
- It can include provision for divorce in the future when both parties are ready.
- What should happen in the event of the death of either party, cohabitation by either party, or breach of the agreement?
- Other significant change of circumstance, for example change in income.
- Will the terms of the agreement be reviewed in the future, and when?