FINANCIAL CLAIMS

Section 72 makes provisions for financial relief for civil partners. Sub section (1) states that schedule 5, containing the ancillary relief provisions, corresponds to provisions made for financial relief in connection with marriages under the Matrimonial Causes Act 1973.

Schedule 5 sets out the orders available as follows.

• Periodical payments to a civil partners or to any person for the benefit of a child of the family or to a child of the family (any such order may be secured).
• Property adjustment.
• Variation of settlement.
• Sales of property.
• Pension sharing.

On a par with the MCA, there are several factors that the court will take into account when it exercises its jurisdiction in relation to financial orders made on the termination of a civil partnership.

It must take into account all the circumstances of the case, giving first consideration to the welfare of any child of the family who is younger than 18 years of age (schedule 5, paragraph 20).

Schedule 5 paragraph 21 (2) almost identically mirrors the factors set out in section 25 of the Matrimonial Causes Act 1973. The court, when deciding whether or not to exercise any of its powers under section 72, will be likely to adopt the approach taken in interpretation of the section 25 criteria. Only time will tell how the courts will approach the distribution of assets. However, it is anticipated that cases such as White v White [2000] 2 FLR 981 will be followed.

It is reasonable to expect that the length of the partnership, and any pre-agreement co-habitation, will be dealt with in line with the findings in GW v RW [2003] 2 FLR 108 and CO v CO (ancillary relief: pre-marriage cohabitation) [2004] 1 FLR 1095.

The cases of Miller v Miller [2005] EWCA civ 984 and McFarlane v McFarlane [2004] EWCA civ 872 will be heard together on appeal to the House of Lords and, doubtless, those decisions will apply in appropriate cases.

Many same sex couples will have lived together for a long time, and the registration of their partnerships will be a binding acknowledgement of enduring relationships.

Pre-registration agreements

What then of any attempt to enter into a binding pre-registration agreement? This is the equivalent of a pre-marital agreement. In K v K (ancillary relief; pre-nuptial agreement [2003] 1 FLR 120 and M v M (pre-nuptial agreement [2002] 1 FLR 654, we have seen a willingness by the court to uphold any such agreements entered into by civil partners.

The civil partnership is born entirely out of statute. Marriage, by contrast, has its roots in canon law and was intended to be a union for life. No such expectation is placed, statutorily, on civil partners. Why then should agreements properly entered into by civil partners to provide for the distribution of assets on dissolution of their agreement be seen to offend judicial or public policy? In cases where the court does not have to concern itself with provision for children, there may be a greater willingness to uphold pre-registration agreements.