For the past ten years’ same sex couples have been able to marry, since the Marriage (Same Sex Couples) Act in 2013. Previously, same sex couples could enter into civil partnerships which provided most but not all the legal rights afforded to married couples. Whilst same sex couples are more widely accepted than in the past, there can still be issues, such as family rejection and hostility, which prevents some couples taking the step to marriage.
The legal protections of marriage such as the division of assets on separation are absent for cohabiting couples and they should consider ways to protect their assets, ensure that their estate is inherited by the chosen beneficiaries and close the opportunity for a challenge by disapproving relatives, as well as also sheltering the inheritance of any children of the relationship.
Daniel Theron, a partner, commented “if you are unmarried without children and die intestate your partner will not inherit automatically, your parents and next closest relatives are likely to inherit under the specific rules of intestacy. Your partner may be able to challenge this on the basis of need under The Inheritance (Provision for Family and Dependents) Act 1975, but it will be a long and expensive road, which should be avoided from the outset.” Daniel further pointed out “there are legal agreements that will help to protect both partners if circumstances change. Not the least is an unshakeable well-drafted Will, aimed at protecting your partner’s rights, that can also withstand a challenge and ensure that a surviving partner will remain in the same situation and will not have to uproot their life. Other agreements such as a cohabitation agreement or deed of trust over any jointly owned property will further indicate the unmistakable views and intentions of the couple. ”
If there is very little chance of marriage, the other agreements that the couple can be signatories to, whilst they may not have exactly the same legal weight as marriage in the event of a legal challenge, will be indicative of the decisions that both parties agreed to. Provided the documents are valid and there has been no coercion aimed at one party to compel them to consent, the courts will often respect the contents.
Cohabitation Agreements
An unmarried couple could consider a cohabitation agreement which is a legally enforceable agreement between the parties outlining how the assets of the relationship should be dealt with if the relationship ends, as a result of either the death of one party or if the couple separates. This should be coupled with a Will incorporating the same provisions.
A private member’s bill, The Cohabitation Rights Bill, has begun the journey through Parliament but has been paused by the Government at the moment. However, it is presumed that it will eventually be enacted. The Act would provide considerably more security to the estimated 3.5 million unmarried couples in the United Kingdom.
Prenuptial Agreements
Giambrone & Partners LGBT+ division, also recommend a cohabiting couple to draft a prenuptial agreement if they intend to get married or enter into a civil partnership. Especially as since the ground-breaking case Radmacher –v- Granatino, where the court decided that fair unbiased prenuptial agreements where neither party has been subjected to undue influence and both parties have freely entered into the agreement in the full knowledge and understanding of all the legal and financial implications, are now to be given weight if certain conditions are complied with.
A prenuptial agreement can make provision for financial issues such as investments, property and other assets, how accrued debts are dealt with and certain issues relating to children of a previous relationship. Both parties must disclose their assets and independent legal advice is strongly advised to be taken by both parties.
Parental responsibility
The rights of LGBT+ parents can differ depending on the circumstances of the relationship and how the family has formed. It is incredibly important to ensure specific legal advice relating to your specific circumstances is sought from the outset, before embarking on any adoption, pregnancy or surrogacy. It is important to ensure the parties who intend to have parental responsibility for the child have adequate legal protection for the future in case there is a breakdown of the relationship or an unfortunate death of a parent.
Wills
A well-drafted Will is essential for cohabiting couples as in the event of the death of one party the surviving party does not automatically inherit in the same way as a married couples or those in civil partnerships. Giambrone & Partners LGBT+ division point out that your Will should not just enshrine which assets are to be inherited by each beneficiary, it should also be drafted to off-set the potential for challenge. This is important where there is the possibility that homophobic relatives of the deceased attempt to overturn a Will where the beneficiary is their deceased’s unmarried gay partner or even the children of the relationship. For example, a challenge may be attempted on the basis that a relative has been overlooked.
The empathic lawyers in Giambrone & Partners LGBT+ division, Gay Lawyers, have years of experience in advising and drafting legal agreements and iron-clad Wills for gay couples to ensure that their wishes are adhered to. The firm is a leading law firm assisting LGBT+ clients with their legal requirements.
Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law.
Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.
Daniel heads the firm’s LGBT+ division, and provides a bespoke and personal service to our LGBT+ clients.