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Do same-sex couples have equality before the law?

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Equal marriage.

Heterosexual and same-sex couples can now marry equally under English law, but do they have the same legal rights? This guest blog from Rebecca Rothwell of barristers’ chambers 36 Bedford Row provides the answers.

Since Civil Partnerships became legal in England and Wales on 05 December 2005, there have been well over 120,000 such unions. As for same-sex marriages, in the first three months after the law changed – on 29 March 2014 – there were approximately 1,400 weddings (56% female, 44% male); 95 of these taking place in the first three days.

Does it follow, however, that because heterosexual and same-sex couples can now marry equally under English law, that the same is true upon divorce? It’s an important question, especially when one considers that Government figures in 2013 made clear that the rate of dissolution amongst civil partnerships was up by 20%, with lesbian couples twice as likely to divorce as gay men.

It was not until 2000 that gay men and women were allowed to serve in the British armed forces. It took until 2001 for there to be equality in the age of consent (lowered from 18 to 16 in relation to gay men), and until 2002 for same-sex adoption to be legalised.    

Nor is England a trailblazer when in comes to same sex marriage (Netherlanders have been able to enter into same-sex marriages since 2001). However, we are way ahead of Russia, where not only is homosexuality illegal but so too is discussing same-sex relationships with anyone under the age of 18. (Until 2003 it was unlawful to teach the acceptability of homosexuality in English schools).

So, can same-sex couples expect equality when it comes to divorce and financial remedies? The short answer is yes (financial remedies) and no (divorce).

Divorce grounds for gay couples

In terms of divorce, same-sex couples cannot cite adultery on a divorce petition if their partner has cheated on them with a member of the same sex. This is because adultery is defined as voluntary sexual intercourse between a man and a woman. Nor can such marriages be annulled on the basis of non-consummation.

There are further difficulties for those who may marry in England but who, during the course of that marriage, become habitually resident in other jurisdictions where such marriages are not recognised. This does not mean that there is an automatic barrier to divorce but it does mean that this can create an added layer of complication when it comes to ending such unions.   

Maintenance orders less likely

When it comes to financial remedies, whilst the same claims are theoretically available it does not follow that they will all be appropriate. After all, gay unions are statistically less likely to produce children and so it follows that it is less likely that maintenance orders will be made because there is no dependant spouse.

The case of Lawrence v Gallagher [2012] EWCA Civ 394 was the first time that the Court of Appeal was asked to decide upon the asset division on the dissolution of a civil partnership. The basic facts were these: Lawrence was a 47 year-old City analyst, taking home around £400,000 per year. Gallagher was a stage actor, who could command up to £100,000 annually. They began cohabiting in 1997 and entered into a civil partnership in 2007; it was dissolved after 11 months.

At the hearing, Lawrence advanced the ‘dual career’ argument stating that because both parties worked outside the home and did not have children, their capital and income should be treated as being separate. This was rejected by Thorpe LJ, who said, ‘this couple clearly intermingled and combined their available capital and income to enjoy a high standard of living of their own design.’

Gallagher’s solicitor has called into question whether the division of assets was fair (the trial judge split the assets 58/42, the Court of Appeal reduced this to 33/67) and whether, had this been a 12-year heterosexual marriage, the division would have been so stark. A two-third, one-third split may not seem so fair but when one considers that Lawrence was successful in running arguments about both pre-acquired assets (property) and post-separation income (bonuses), it becomes clear that any move away from the yardstick of equality was justified using the exact same legal principles that apply to heterosexual relationships.

In the last few weeks, another case has appeared in the headlines. It has been described as ‘the first lesbian divorce to reach the Court of Appeal’. It concerns the relationship between Helen Roocroft and her civil partner, Carol Ann Ainscow, who died in 2013. They had been together since the mid 1990’s and formed a civil partnership in 2008. They separated the following year and their civil partnership was dissolved in August 2010.

Prior to Ainscow’s death, the parties agreed a settlement on a clean break basis of £162,000, payable in instalments to Roocroft. Whilst Ainscow acknowledged that she had, at one point, been a multi-millionaire, her Form E and on-going disclosure suggested that her post-2008 net income (i.e. after the economic crash) was £750,000. In fact, it transpires that Ainscow’s net worth was in the region of £6 million.

The notoriety of this case has nothing to do with the fact that it is between two lesbians. Its uniqueness is much more interesting: as Lady Justice Black remarked when granting Roocroft permission to appeal, ‘I am not aware of a similar case where non-disclosure has been acted upon following the death of the other party.’ The outcome of this case will be of great interest to any practitioner who finds himself or herself in a situation whereby non-disclosure in financial proceedings only rears its head as an issue after the death of the non-disclosing party.

Inequality for same sex couples

It is those that remain in same-sex marriages/civil partnerships that can face unequal treatment compared to their married (heterosexual) counterparts:  the most obvious examples being in relation to the payment of death benefits in some occupational pension schemes (where entitlement to claim death benefits can be restricted to rights a scheme member has built up since 05 December 2005) and under trusts and wills. This is because the Marriage (Same Sex Couples) Act 2013 does not affect private legal instruments made before the date the Act came into being and so at the moment, reference to a spouse for example, does not include a same-sex spouse. As such, wills and trust instruments will need to be amended accordingly.  

So when it comes to financial remedies, will same-sex couples face discrimination? The answer is no. There may be less maintenance awards ordered (if statistics remain true that such unions are less likely to be child producing) and those divorcing in the next few years will also fall into the short marriage category (although pre-martial cohabitation will apply as it does to heterosexual couples). Given the wide discretion afforded to family law judges in financial remedies case, same-sex couples will face exactly the same uncertainty of outcome as everyone else. You can’t say fairer than that.  

Rebecca Rothwell
Barrister, 36 Bedford Row 

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