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12 DEC 2007

Dr Jens M Scherpe: Legal Recognition of Foreign Formalised Same-Sex Relationships in the UK

Dr Jens M Scherpe, University of Cambridge

Same-sex couples in the UK can formalise their relationship since the Civil Partnership Act 2004 came into effect on 5 December 2005. The legal consequences of a civil partnership with a few exceptions are very much the same as those of marriage, and indeed civil partnership has been called a marriage in everything but name (see Sir Mark Potter P in Wilkinson v Kitzinger (No 2) [2006] EWHC 2022 (Fam), [2007] 1 FLR 295, at para [88]: 'marriage in all but name' and Baroness Hale of Richmond, 'Homosexual Rights' [2004] CFLQ 125: 'marriage in almost all but name'). Thus the UK has joined the group of countries that have created a separate legal regime for same-sex couples which is the functional equivalent of marriage. In this group we find, inter alia, the Nordic Countries, Germany and Switzerland. Other countries, such as The Netherlands, Belgium, Spain, Canada and South Africa, have gone another way and opened up marriage to same-sex couples. But there also is a group of countries in which a separate legal regime exists that is deliberately constructed in a way that it is not the functional equivalent to marriage and that is open to both same-sex and opposite sex-couples. This is the case, for example, in France, where the pacte civile de solidarité currently is the only way for same-sex couples to formalise their relationship but also open to opposite-sex couples, and Belgium, where the cohabitation légale is an alternative open to both same-sex and opposite-sex couples. Here the legal consequences deriving from the formalisation of the relationship are of much lesser intensity than those of marriage, particularly in relation to property consequences of separation, possible maintenance claims and the formalities required for a separation.

So, in principle, there are three different approaches to formalised same-sex relationships to be found: the first two (marriage and functional equivalent) have more or less the same legal consequences; the third model, however, is deliberately set up to be quite distinct from marriage in terms of its legal consequences. Sections 212ff of the Civil Partnership Act 2004 deal with 'overseas relationships' and, inter alia, lay down conditions for when such formalised relationships are to be treated as civil partnerships in the UK, either because they meet the general conditions (s 214) or because they are listed in Sch 20 to the Civil Partnership Act 2004, which already has been amended a few times, in light of developments in other jurisdictions. Surprisingly, the Schedule now lists foreign legal regimes for formalised same-sex relationships that fall into all of the three categories listed above, which creates four sorts of problems.

For the full article, see November [2007] International Family Law.

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