- When the Civil Partnership Act 2004 (“the Act”) came into force on 5 December 2005, its purpose was to enable same-sex couples to obtain legal recognition of their relationship by creating the “a parallel and equalising institution”[1] of civil partnership.
- 14 years later, the same-sex requirement has been excised from the Act by the Civil Partnership (Opposite-sex Couples) Regulations 2019[2] (“the 2019 Regulations”). As of 2 December 2019, a civil partnership is a relationship between two people of any sex which is:
- The amendment is far-reaching. Opposite sex couples – whether in registered civil partnerships or overseas relationships treated as civil partnerships – have access, subject to jurisdiction and eligibility criterion, to the same rights and obligations conferred onto their same-sex counterparts which themselves mirror those granted to married couples.[6]
- This short piece highlights the impact of the 2019 Regulations on the recognition of one type of “overseas relationship,” the French pacte civil de solidarité (“PACS”). PACS is contractual status that lies between concubinage and It is often entered into as a stepping-stone to marriage (prior to which the PACS is dissolved).
- A note on terminology. “Recognition” and “registration” are not interchangeable terms. PACS is a species of contract under French law that can be registered with a notary or court.[7] There is no mechanism in the Act for registering a PACS in the UK, or for transferring a French-registered PACS into a UK-registered civil partnership. Rather, authorities in the UK may automatically treat (read: recognise) a PACS registered pursuant to French law as a civil partnership provided the criteria are satisfied.
- The argument is as simple as it is obvious: broaden the definition of ‘civil partnership’ and a much greater number of ‘pacsé’ couples will be treated as civil partners.
- The 2019 Regulations bring opposite sex PACS into the definition of “specified relationship” as of 2 December 2019.[8] Provided the PACS was lawfully registered outside the UK at a time when the (capacitous) pacsé were neither married nor ‘civil-partnered,’ the opposite sex couple will be treated as having formed a civil partnership.[9]
- The significance of this amendment to the recognition of PACS cannot be overstated. Data collected by the Institut nationale de la statistique et des études économiques (INSEE) shows that, of couples who formalised their relationship via a PACS, 96% are opposite sex couples.[10] Prior to the 2019 Regulations, merely 4% of pacsé couples were treated as civil partnerships in UK law. The removal of the same-sex requirement in the definition of civil partnership therefore extends legal recognition to the overwhelming majority of pacsé couples (around 200,000 a year).
- The (happy?) consequence of recognising all PACS – a status similar, but not identical, to civil partnership – is granting the qualifying pacsé stronger rights and greater responsibilities under UK law than under French law, in particular relating to:
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- inheritance and intestacy;
- adoption;
- pension and social housing entitlements; and
- financial relief upon separation or termination of the relationship.
- Query whether that aligns with the intention of those who, aware of the option to marry, deliberately chose to formalise their relationship by PACS. Those who did so without the wish to be bound by the obligations of the ‘highest tier’ status are caught by automatic recognition. Time will tell a pacsé’s lack of consent to taking on marital responsibilities satisfies the public policy exception[11] to automatic treatment of her or his PACS as a civil partnership.
- That the Act, as amended, treats PACS equivalent to civil partnership does not mean that it recognises the French status from its inception (the point of registration). By the general rule at section 215, the duration of the PACS may vary depending on:
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- whether the pacsé are a same sex or an opposite sex couple;
- when the PACS was registered under French law (relative to the coming into force of parts of the Act);
- whether the couple obtained a “recognised dissolution” (author’s term) of the overseas relationship outside the UK; and
- whether one partner is seeking a legal remedy or enforcing a legal right (and if so, which one).
- Consider two couples who became pacsé as soon as that status became available under French law.
- François and Gabriel registered their PACS in France in December 1999.
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- If they separated and dissolved their PACS (in, say, Wales) in December 2020, the general rule would bite. In an application for financial relief under Schedule 5, they will be treated as having been in a civil partnership for 15 years – 6 years shorter than the actual length of their PACS.
- Imagine instead that François and Gabriel separated and obtained a Part 3-recognised dissolution (also in France) in November 2005. They will not be treated as having been civil partners at all, except for the purpose claiming financial relief in the UK (or any other purpose under s. 215(5)) in which case their 6-year PACS will be recognised in its entirety.
- If François had entered into a PACS with Marianne instead (this time, in December 2013), he would be treated to have had a civil partnership:
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- of 6 years in any Schedule 7 claim (or any other purpose under s. 215(5D)), if he had separated from Marianne and obtained a Part-3 recognised dissolution in November 2019.
- of 1 year in any Schedule 5 claim, if he had in December 2020 separated from Marianne and obtained a dissolution (in, say, England) – a far cry from the actual length of the relationship (7 years) and 6 years less than if François had entered into a PACS with Gabriel, rather than Marianne, on the same date (December 2013).
- There therefore remains some unredressed “inequality of treatment”[12] between not only same sex and opposite sex couples, but also (and cutting across those two categories) between pacsé and UK-registered civil partners. Considering that the length of the relationship is a factor the court must consider when determining what constitutes a fair settlement following relationship breakdown,[13] the least protected partner will be the financially weaker party in an opposite-sex PACS registered long before 2 December 2019 and who is now (after the 2019 Regulations came into force) seeking financial relief in this jurisdiction following the end of that relationship. Although the purposive approach of the family court to determining the length of a relationship should be prayed in aid,[14] an even more robust approach would be required for such couples if they had been “living apart together”[15] (not cohabiting) prior to the 2019 amendments coming into force.
[1] Wilkinson v Kitzinger (No 2) [2007] 1 FLR 295, per Sir Mark Potter P at [50].
[2] S.I. 2019/1458. Regulation 3 amends section 1(1) of the Act. Regulation 5(5) of the 2019 Regulations repeal the same sex requirement at section 216 of the Act.
[3] England and Wales (Part 2), Scotland (Part 3), and Northern Ireland (Part 4).
[4] Chapter 1 of Part 5 of the Act relates to the registration at British consulates or by armed forces personnel.
[5] By Chapter 2 of Part 5 of the Act.
[6] For example, financial remedies upon termination of a civil partnerships correspond with ancillary relief for married couples. See section 74 of the Act.
[7] PACS can also be registered in French consulate or embassy.
[8] Part 2 of Schedule 20 of the Act.
[9] See ss. 212, 213, and 215(1) of the Act.
[10] https://www.insee.fr/fr/statistiques/2381498. Data is not available for 2020 and 2021.
[11] Section 218 of the Act.
[12] Wilkinson v Kitzinger (No 2) [2007] 1 FLR 295, per Sir Mark Potter P at [50].
[13] See paragraph 21(2)(d) of Schedule 5; paragraph 5(2)(d) of Schedule 6; and paragraph 10(3)(a) of Schedule 7.
[14] GW v RW (Financial Provision: Departure from Equality) [2003] 2 FLR 108; IX v IY [2018] EWHC 3053 per Williams J at [68]; MB v EB [2019] EWHC 1649.
[15] Levin, I. (2004). Living Apart Together: A New Family Form. Current Sociology, 52(2): 223-240.
