Same-sex couples can tie the knot in time for Christmas

The Department of Trade and Industry (DTI) has announced that the Civil Partnerships Act will take effect from 5 December 2005. Taking into account a 15-day waiting period, according to the DTI this will allow the first civil partnerships to be formed on 21 December 2005 "in time for Christmas".

The Act does not contain any significant changes from the Bill. However, some major concessions were gained in respect of the provision of pensions, with civil partners being able to claim contracted-out and state pensions calculated from April 1988 instead of from the effective date of the Act.

The government is unsure as to how many same-sex couples will take advantage of the legislation, estimating that between 11,000 and 22,000 people will enter into such agreements.

Making and breaking civil partnerships

To form a civil partnership, couples must meet the following conditions:

The registration service must be given 15 days' notice of the couple's intention to form a legal partnership. The partnership comes into legal existence once both parties have signed the necessary papers. Couples forming civil partnerships have a new legal status of "civil partner". Same-sex couples who do not enter into an agreement but who live together will be treated for legal purposes in the same way as opposite-sex unmarried partners who live together.

Civil partnerships may only be ended by dissolution or death. The procedure for dissolving a civil partnership is court-based and the person seeking dissolution has to prove the partnership has irretrievably broken down in the same manner as a married person seeking a divorce.

The Act amends the pension-sharing and earmarking legislation so that on dissolution of a civil partnership the court has power to make either type of arrangement as appropriate. The court may also take into account any compensation from the Pension Protection Fund to which the civil partner is or may become entitled.

State benefits extended

Extensive amendments are made to the social security legislation in the Act to extend state pensions and other benefits to civil partners. On the death of one of the partners, the other will be eligible for various bereavement benefits and allowances. However, as presently with bereaved spouses, benefits will cease if the surviving partner either starts living with another person of either sex, marries or enters into another civil partnership.

The Act places civil partners in the same position as married men in respect of state pensions. They will only be able to use their partner's national insurance contribution record to qualify for a basic state pension if the partner on whose record they are depending is born after 6 April 1950. At present, if a woman is widowed after state pension age, she can qualify for a state pension calculated as if her husband were entitled to it at the date of death, regardless of his age. Until 6 April 2010, civil partners will only be entitled to a pension under this rule if both partners are over state pension age when the first one dies. From that date, both civil partners (and widowers) will qualify for this benefit regardless of the age at which their partner dies.

Occupational pension considerations

Rather than amending occupational pensions legislation, the Act contains powers for changes to be made by secondary legislation. Amendments will have to be made to extend references to "spouse" and "marriage" to "civil partner" and "civil partnership". References to children will include the children of civil partners.

The DTI has already announced that the power will be used to require contracted-out defined-benefit schemes to take account of pensionable service from April 1988 when calculating survivors' benefits in respect of contracting out if the member was in a civil partnership at the date of retirement. This was the date when widowers' guaranteed minimum pensions became obligatory and will place civil partners in the same position as widowers.

The Act also extends the law with regard to wills and intestacy in respect of civil partners. In particular, a will is revoked when the testator enters into a civil partnership, except in the limited situations that currently apply on marriage. If the partnership is dissolved, former partners may not benefit from the will unless it provides otherwise. Civil partners also have the same intestacy rights as spouses.

Trustees will have to take these changes into account when exercising their discretion in respect of the payment of lump-sum death benefits. In particular they will need to assess the competing claims of current and former civil partners when making their determinations.