Family arrangements have continued to progress with the changing trends of society. One of the notable changes in family arrangements is the significant increase in same sex couples marrying, there are now four times more same sex married couples in comparison to 2015. In 2018, almost half of all same sex couples living together were either married or had entered into a civil partnership.
Divorce or dissolution of a civil partnership for a same sex couple is very much the same process as that which a divorcing heterosexual couple will be obliged to follow. In summary, the parties must have been married for at least a year and it must be proved to the Court that there has been an irretrievable breakdown, proved by one of the following facts:
- Unreasonable behaviour;
- Desertion;
- Two years separation with consent; or
- Five years separation.
It would only be in very rare cases where a same sex spouse would be able to rely upon adultery within their divorce petition rather than the above options as by definition, the person committing adultery must have had sexual intercourse with a person of the opposite sex. The petitioner can however, still refer to their spouse’s infidelity within a petition on the basis of unreasonable behaviour if they wish to do so.
How will the finances be dealt with?
The Courts will have regard to the same criteria when dealing with the finances for a same sex couple as they would for a heterosexual couple, which can be found at Section 25 of the Matrimonial Causes Act 1973. If the same sex couple decided to convert their civil partnership into a marriage, as they were able to do so following the implementation of the Marriage (Same Sex Couples) Act 2013, the Court would consider the relevant period of the marriage to be from the commencement of the civil partnership rather than the date of their marriage.
Can same sex couples have a pre-nuptial agreement?
Same sex couples wishing to take steps to protect their separate property in the event of a divorce or dissolution can enter into a pre-nuptial agreement, or pre-partnership agreement in the case of parties entering a civil partnership. Such agreements can be particularly complex and it is essential that appropriate advice is sought.