When Same Sex Relationships Break Up
How does one go about ending the relationship? Are there different process involved in ending a civil partnership and ending a same-sex marriage?
Should the relationship break down, whether that would end a civil partnership or a same-sex marriage, the process will be the same. One party presents a petition for dissolution to the Court, which states that the relationship has broken down irretrievably, and citing one of four grounds (known as ‘facts’); namely unreasonable behaviour of the other party; desertion; separation for a period of two years with the agreement of both parties or separation after five years, if the other partner does not agree. Unlike heterosexual marriage, adultery is not a separate ground, but infidelity which leads to irretrievable breakdown of a civil partnership can amount to unreasonable behaviour.
There are two formal stages in ending the relationship. Once the Court has considered the application for dissolution a conditional order is granted, which can be made final after six weeks and one day has elapsed.
What things should I take into consideration when filing for a divorce?
Firstly consider whether there is a possibility of a reconciliation, and if so seek professional guidance from organisations such as Relate. If your civil partnership (or marriage) has irretrievably broken down, seek legal advice as to financial entitlement, and the processes open to you and your partner (in particular mediation and collaborative) to reach an amicable and cost effective settlement. Select a specialist family law solicitor who is a member of Resolution, the professional umbrella group which operates a code of conduct to minimise conflict.
What things will be taken into consideration when sharing out any assets?
The legal criteria include, firstly the welfare of children of the family under 18; the length of the civil partnership, age of the parties; their income and future earning capacity; housing needs; particular capital contributions and any other significant circumstances. Both parties must make full and up to date disclosure of their financial assets to enable solicitors to advise and negotiate a settlement that would be approved by the Court. To ensure amicable relationship and good communication (particularly where there are children) financial settlement upon dissolution of Civil Partnership or divorce in marriage should be resolved by co-operative means. This may be through the collaborative process, whereby both parties meet with their solicitors to reach fair settlement without conflict or through the mediation process with a neutral mediator, and instruct solicitors to finalise the legal paper work. Litigation through the Court should be the last resort.
We have adopted children/ our own children? Who will have care of the children following the break up?
The Children Act 1989 will apply to determine what orders, if any, are made relating to children adopted or born to parties in a civil partnership and for whom the partners have legal ‘parental responsibility’. Generally there is no presumption in favour of a biological parent when determining a dispute between same sex parents. Upon dissolution of a civil partnership the arrangements are determined by the parents, who after all know their child best, and it is only in the event of a dispute between the parents that the Court, upon application by either parent, will make an Order for residence (the parent with whom the child shall live) or contact (how much time the child will be spent with the other parent). A Family Court, in dealing with the Conditional Order for dissolution of a civil partnership, is required to consider whether the arrangements for the children are satisfactory in broad terms.
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Ms C, Family Law. January 2017