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Civil partnerships and marriages between couples of the same sex give same sex couples the same rights as heterosexual couple’s. As with any family relationship there can be complex issues to consider should your relationship break down.  

Same sex relationships and children

You may have children from previous relationships who have lived with you as a family; you may have children you have adopted together or children born by donor sperm, egg IVF or surrogacy – agreeing who the children will live with primarily and spend time with can be stressful and difficult to resolve should your relationship breakdown.

There are also many complicated laws regarding parental rights for children, even if your relationship is happy, it is essential you are aware of the law as to what rights both parents may have over the children now, or should the relationship breakdown.

Same sex relationships and finances

Money issues upon separation can also be complex as your needs for re-housing and the contributions made financially are often very different between cohabiting couples and  married couples.  You may have lived together for a long time before your civil partnership or marriage and may have two families to re-house, both with children.  

What can we do to protect our family

We would always recommend seeking professional legal advice whatever your circumstances and particularly if you are happily living together.  As much as you would look to obtain a financial advisor to help you decide the best options for your finances for pensions; savings; inheritance and so on, a family lawyer can help you ascertain your current rights and responsibilities and how they could change upon marriage/civil partnership and upon any potential relationship breakdown.
You can obtain a cohabitation agreement or pre/post nuptial agreement.

Why do I need a cohabitation or nuptial agreement?

We start relationships with shared ideas and goals and along the way, these ideas may change and we may assume that our partner is aware of our feelings. Often this is not the case and should a relationship breakdown, this lack of communication can create very difficult discussions when trying to resolve these issues.

A cohabitation or nuptial agreement lets a couple set out in writing how you wish to manage your day-to-day finances; childcare arrangements; and future wishes so that you both agree between you your common ideas and goals.  Should your relationship break down, provisions would already be agreed as to how the family should formally separate without any uncertainty or confusion.

A cohabitation agreement is particularly important for in England and Wales, if you do not formally marry or enter a civil partnership, there is limited rights available to cohabiting couples.

In the case of property, for example, if you have a joint rental agreement or mortgage, it's up to the both of you to decide what will happen if you break up. But if you've been living in your partner’s house, then it will not be as easy and you may be left without a place to live. Even if you have been contributing to the mortgage or paying your way in other ways (e.g. such as staying at home to look after the children), unless your name is on the deeds, you may have no right to the property.
Having a cohabitation agreement can help. It can outline the shares each of you will have in the property or whether one of you will remain the sole owner.

It helps to outline both your shares of property, possessions and savings so that the legal consequences of splitting up are a lot easier to deal with. An agreement could include the following provisions: 

  • the ownership of your home - whether you own it jointly together or just one of you owns the property, 
  • your home contents and your personal possessions, 
  • your bank and building society accounts, 
  • and your common household expenses including mortgage repayments, rental payments, insurance premiums, council or other local taxes, utility bills, food, decoration and repairs.

By making this cohabitation agreement, you can avoid disputes about who owns what, and who is responsible for paying various bills.

Is a cohabitation or nuptial agreement legally binding?

Although these agreements are not a legally binding contracts, the courts are becoming more willing to accept them and it is a great advantage to have proof of your intentions should you both get into a legal dispute. For any agreement to stand a chance of being upheld by the courts as binding (and there can be no absolute guarantee) the parties must:

  1. Each take independent legal advice upon the contents
  2. Each tell the other the truth about their financial circumstances
  3. One should not exert undue influence over the other
  4. There should be no fraud or mistake involved

Parental or child arrangement agreements

You may just wish to have an agreement upon separation that considers the arrangements and financial contributions you will both make towards your children. It is again very easy to assume you both hold the same goals and endeavours for your children, but until the time comes these assumptions are incorrect.

These can be matters such as:

  • What school will our children go to
  • Who will pay for the school activities
  • Who shall be the primary address at the doctors
  • Shall our child join a particularly religious faith and celebrate all customs within that faith
  • Who shall claim the child benefit for the child and any other associated benefits

We can assist in the drafting of these agreements for you so that you and your co-parent can have an agreed set out principles that will allow you to simply enjoy spending time with your children without worrying about the next milestone you may need to consider.

Our team of family law experts can provide the advice and guidance you need to navigate you through what can be a distressing time but also as insurance policies to set out principles and agreements when your relationship has not broken down. 

We offer professional advice and assistance on all legal issues relating to same sex couples. The work we do regularly includes:

  • Preparing cohabitation agreements between same sex couples.
  • Preparing pre and post civil partnership/marriage agreements (nuptial agreements).
  • Advising on legal issues affecting your children.
  • Acting in the dissolution of civil partnerships and divorce of a marriage.
  • Advising on financial issues arising from the breakdown of same sex relationships.

For more information please contact our specialist law team on 0113 320 5000 or by email on family@winstonsolicitors.co.uk

If your marriage was legally recognised in the country your marriage took place, you can commence a divorce in England if you are habitually resident or domiciled in England or Wales.

Research tells us that arrangements agreed between the parties are much more likely to succeed if they are made by consent. However, where one parent does not agree to those arrangements you may need to try mediation, arbitration or ultimately court proceedings to help you sort these arrangements.

A paper divorce is currently taking around 9-12 months. Online it takes around 4-5 months.

The process for the dissolution of a civil partnership follows the same process as the divorce.

A Consent Order is an order agreed within divorce/dissolution financial proceedings which sets out the terms of the agreement for the finanical separation such as disposition of property; bank accounts; maintenance payments and so on.