Civil Partnerships and Co-Habitation

Legislation: Civil Partnership & Certain Rights and Obligations of Co-Habitants Act 2010 (“the Act”)
Commencement Date: 19th July 2010

Three Aspects:

1. Civil Partnership Registration Scheme: a summary

Applies to:

  • Same sex couples only
  • On registration couples become “Civil Partners”
  • Automatically confers statutory rights and obligations on Civil Partners following registration

2. Co-Habitation Scheme: a summary

  • Available to both same sex & opposite sex couples
  • Couples must not be married or in a Civil Partnership
  • Does not confer automatic rights / obligations on the Co-Habiting couple to avail of scheme
  • Creates a redress scheme for relationships ended by death or otherwise

3. Co-Habitation Agreements provided for under Section 202 of the Act allows Co-Habiting couples regulate their own affairs

1. Civil Partnership Registration Scheme

  • On registration, Civil Partners are entitled to automatic succession rights to each other’s estate.
  • Testamentary freedom of partner’s is considerably restricted provided the couple are in a valid civil partnership at the date of death.
  • An application can be made under Section 4 of the Act for a declaration of Civil Partnership Status
  • To enter into a civil partnership the participants must be:
    a) Over 18
    b) Of the same sex
    c) Unmarried / Unregistered
    d) Unrelated
  • Section 5 of the Act – Civil Partnerships entered into in other jurisdictions may be recognised in this jurisdiction. Foreign dissolutions are also recognised. Section is not retrospective
  • Dissolution of a Civil Partnership can occur in the following ways:
    a) By death
    b) By a decree of nullity – deemed never to have been in a Civil Partnership – No obligations on death
    c) By decree of dissolution
    d) Section 127 of the Act states that on death the surviving civil partner can seek provision to be made out of the estate of the deceased civil partner

Part 8 of the Act – Succession

Principal provision extends all rights conferred on surviving spouses under the Succession Act 1965 to include, on registration, the surviving civil partner both on intestacy and where there is a valid will

Right of the surviving Civil Partner to appropriate the dwelling – Section 65 of the 1965 Act is amended by Section 70 of the Act by inserting “Civil Partner” after “Spouse” wherever it appears

Power conferred on Civil Partner as a trustee under Section 58 – Section 58 of the 1965 Act is now amended by Section 71 of the Act so that Section 58(6) will read as follows: “The powers conferred by subsection 58(6) may also be exercisable by the surviving spouse or civil partner as trustees of any property of an infant appropriated in accordance with Section 56”

Section 70 of the Act inserts a new Section 67(A) into the 1965 Act

  • Where a civil partner dies intestate, without issue, the surviving civil partner is entitled to the whole estate
  • Where the civil partner dies intestate with issue, the surviving civil partner is entitled to two-thirds of the estate, the remaining one-third being divided equally any surviving issue subject to the new Section 67A(3)
  • Section 67A(3) – Courts given the power to make further provision from the deceased’s estate for an applicant child of the deceased who was in a civil partnership at the date of death, such provision to be taken from the surviving civil partners share. No similar provision in the 1965 Act
  • Time limit for application under Section 67A(3) is 6 months from the date of the initial Grant

All provisions of the 1965 Act dealing with the intestate shares of parents (S.68), shares of brothers and sisters and their children (S.69) and shares of next of kin (S.70), is amended by inserting “or civil partner” after “spouse” wherever it appears

Entitlement to extract a Grant on intestacy – The Act does not make reference to the persons entitled to extract a grant of administration however it is assumed that the necessary amendments will be made to Order 79 of the Rules of the Superior Courts and that the civil partner will have the same entitlement to extract a grant as the surviving spouse

Changes in succession with regard to Testate Estates

Gifts to a witness or to a civil partner of a witness shall be void

A will is revoked by the subsequent entry into a civil partnership, except where a will is made in contemplation of entry into the civil partnership

The provisions of Part 9 of the 1965 Act dealing with the legal right share and provision for children shall extend to civil partners: –

  •  Section 81 of the Act inserts a new Section 111A into the 1965 Act
  • Provisions of Section 111A are subject to the provisions of the new Section 117 (3A), as amended by Section 86 of the Act, thus making the surviving civil partners legal right share NOT absolute

Other provisions

Priority of Civil Partners legal share – Section 82 of the Act amends Section 112 of the 1965 Act to provide that the civil partners legal right share shall also have priority over devises, bequests and shares on intestacy

The right of renunciation of legal right – extends to civil partners under a new Section 113A. Section 114 of the 1965 Act is now to be read as extending to a surviving civil partner as well as a surviving spouse

Right of Election – Section 115 of 1965 Act is amended by Section 85 of the Act. Civil Partners have the right of election regarding any benefit that may arise under a will or a partial intestacy. Similar situation to a surviving spouse. Personal representatives are under a duty to notify the civil partner in writing of their rights under the Act.

Unworthiness to Succeed – Section 120 of the 1965 Act as amended by Section 87 of the Act – Provisions put civil partners in similar situation as regards being disinherited due to desertion and offences against the deceased.

Dispositions of property for the purpose of disinheriting a civil partner – Section 121 of the 1965 Act is amended by Section 88 – Dispositions of property for the purpose of disinheriting a spouse / civil partner, made within three years of death, may be set aside.

Time Limits – Existing statutory time limits that apply to surviving spouses will equally apply to civil partners.