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Divorce law blog

Gay marriage – wrong priority?

05/06/2013   By: Nigel Shepherd

I hope that the Marriage (Same Sex Couples) Bill will find its way onto the statute book. Clearly, there are those who hold strong opposing views. Unless they are motivated by outright prejudice, those views should be respected, but this is about equality and fairness. It’s about treating people the same under the law. France has just become the 14th country to recognise this and there’s no reason for us not to follow suit.

However, although this legislative change is to be welcomed, being able to marry will not add to the legal rights that same sex couples have enjoyed since the introduction of civil partnerships. If their relationship breaks down, the remedies under the Civil Partnership Act mirror those available to married couples. The financially weaker partner can seek a distribution of assets, and maintenance in appropriate cases, to meet housing, income and pension needs.

This is in stark contrast to the position faced by those in long term cohabiting relationships, whether same sex or otherwise. They have no effective protection, despite the 2008 British Social Attitudes Report revealing that more than half of the general public believed that cohabiting couples had the same rights as those who are married. Common law marriage is a myth: it simply doesn’t exist.

The report went on to say that nine out of ten people thought that there should be a right to some financial provision on cohabitation breakdown, for example where the relationship has been long-term or where one partner has been disadvantaged by giving up a career to care for the family.

In 2007 the Law Commission recommended reform, but successive governments have done nothing. Reform has been put on the back burner and is in danger of falling down the back of the cooker completely. This is despite the evidence from the very many other countries that have grasped the reform nettle, including Scotland, that reform has not led to a flood of claims nor to the institution of marriage being undermined.

The claims that can be made when a cohabiting couple splits up shouldn’t be as wide as for those who are divorcing. Instead the aim would be to provide protection and fair settlements for people who don’t get that from the outdated, complex, costly and inflexible property and trust laws that currently apply to these cases.

For more information on legal rights for cohabiting couples when separating, see our divorce advice video: We're not married but we're splitting up - what are my legal rights?

Nigel Shepherd
Family Law Partner

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