12 February 2012
This information applies to Scotland
A civil partnership is a legally registered relationship between two people of the same sex. In many respects it provides the same legal relationship between two people of the same sex as marriage does for two people of the opposite sex. A civil partnership will come to an end if you or your civil partner dies. If you want to end your civil partnership before one of you dies you need to get permission from a court.
You can apply:-
If you’re not a British citizen, ending a civil partnership may affect your right to stay in the UK. If you're not a British Citizen and you are thinking of ending your civil partnership, you should get advice from an experienced immigration adviser. Your local Citizens Advice Bureau should be able to help. To search for details of your nearest CAB including those that can give advice by email, click on nearest CAB.
If you and your partner are separating, you may need to inform:-
When you and your partner have a civil partnership, you can separate informally without taking any legal action. It is advisable when you separate to inform some or all of the people listed under heading Who to inform when your civil partnership ends.
If you and your partner agree, you can make arrangements about children, money, housing and other property without going to court. However, any informal arrangement made when you separate may affect future decisions if you do go to court. If there are children the Child Support Agency may get involved (see under heading Child Support Agency)
If you do decide later to dissolution of a civil partnership and the court is involved it can change an arrangement made informally by a couple. This is only likely to happen if it considers the arrangement to be unreasonable or, in the case of a child, it thinks the arrangement is not in the child's best interests.
A separation agreement is a written agreement between a couple who intend to stop living together. It sets out how they wish to sort out financial arrangements, property and arrangements for the children. When your agreement includes financial matters it should be made with the help of a solicitor. Examples of what you might want to include in an agreement are:-
The advantage of a written agreement is that it is easier to make sure you both understand what has been agreed. It also means that either partner can go to court to change the agreement in the future. The court may only change what it considers to be unfair or unreasonable. It is advisable to consult a solicitor when drawing up a separation agreement, but you should work out in advance the general areas you want to cover. You may find it helpful to use the guidance on family breakdown produced by the Scottish Government at www.scotland.gov.uk to do this.
If you can reduce the time it takes to draw up the agreement with the solicitor it could keep legal costs down. You may get help with your legal costs.
For more information about help with legal costs, see Help with legal costs.
A judicial separation is a court order which stops the obligation of the partners of a civil partnership having to live together. It is quite rare to get a judicial separation, but it can be used by couples who have a moral or religious objection to dissolution of a civil partnership. The order does not end the civil partnership so neither partner is free to enter into a civil partnership again (or marry). The order does not change each partner's rights to stay in the family home. If you want your partner to leave, after a judicial separation, and s/he is not willing to, you have to go to court for an exclusion order.
For a civil partnership to be legal, it must meet certain conditions. For example, you and your partner must both be over 16 when you register the partnership and you must not already be a civil partner or married to someone else. If your civil partnership does not meet one of these conditions, the court can end the partnership by granting an annulment.
For more information about conditions you must meet to register a civil partnership see Registering a civil partnership.
When the court grants an annulment, it may say that your civil partnership is:-
Whether the court will say your civil partnership is void or voidable depends on the circumstances.
If you have children, the court will not grant an annulment unless it is satisfied about the arrangements for the children. For more about children, see under heading Children at the end of a civil partnership.
You will need to get legal advice if you want to apply for an annulment. You might get financial help to pay for your legal costs.
For more information about financial help with legal costs, see Help with legal costs.
You can only get a dissolution of a civil partnership in Scotland if you satisfy certain rules about where you both live. The rules are complicated and you should get more advice from a Citizens Advice Bureau. In order to get dissolution of a civil partnership the civil partnership must be recognised as valid in the United Kingdom.
There are two ways to get a dissolution of a civil partnership:-
If you have no children under 16 and can agree about how to deal with your money and property you can use a simplified procedure to get a dissolution of a civil partnership. You don't have to use a solicitor so you can keep the costs of the dissolution of a civil partnership low.
You can use forms to apply for a DIY dissolution of a civil partnership from your local sheriff court or the Scottish Court Service website at www.scotcourts.gov.uk. There is also some useful guidance on the Scottish Court Service website at www.scotcourts.gov.uk. You may find it helpful to get more advice before you apply. You can get more comprehensive advice from your local Citizens Advice Bureau.
If you have children under 16 you have to use the ordinary procedure to get a dissolution of a civil partnership.
If you can agree about the grounds for dissolution of a civil partnership and what to do about the children, money and property the dissolution of a civil partnership can go to court as an undefended case.
If you cannot agree about the grounds for the dissolution of a civil partnership, or issues about the children, money or property the dissolution of a civil partnership application will go to court as a defended case.
In an undefended dissolution of a civil partnership, it will be advisable to go to a solicitor for general advice before you apply for a dissolution of a civil partnership. A solicitor can be useful for advice on whether there are sufficient grounds, which grounds are appropriate and what evidence may be needed. The solicitor will help you to draw up an agreement that can be lodged in court. If there are disputes about children, property or money which you and your partner can't resolve, you will have to consult a solicitor or mediator to resolve the problems before the case can go to court as an undefended case.
A defended dissolution of a civil partnership will normally be heard in the sheriff court, although the case can be transferred to the Court of Session if the issues that have to be resolved are complicated or there is a lot of money or property to make decisions about.
In a defended dissolution of a civil partnership, both partners should always consult a solicitor. Legal fees can be very high if there are long disputes. It is advisable wherever possible for you both to try to come to an agreement about as much as possible before going to court.
There are two grounds for dissolution of a civil partnership:-
If you are getting dissolution of a civil partnership on the grounds that your civil partnership has broken down irretrievably you or your partner will have to show that the civil partnership no longer exists on a permanent basis. Legally, this is called an irretrievable breakdown of the civil partnership. The irretrievable breakdown of the civil partnership can be proved in one of the following ways:-
A court may grant a dissolution of a civil partnership if you or your partner has behaved so badly that the other can no longer bear living together. Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, financial irresponsibility, being sexually unfaithful, and less obvious things like dominating a partner, not letting the partner leave the house or speak to neighbours and friends or refusing to pay for housekeeping.
If one of you doesn't agree to the dissolution of a civil partnership, evidence and details will be needed, for example, evidence from witnesses such as friends or medical evidence.
If your partner has been violent towards you, you should get specialist help.
For more information about help you can get if your partner has been violent, see Domestic violence.
If you have lived apart (been separated) for one year and you both agree to a dissolution of the civil partnership, a court will accept this as proof of irretrievable breakdown of the civil partnership. The one year apart will still be considered as continuous even if you have actually lived together for up to six months within it but the six months does not count towards the one year. For example if a couple separates in January, gets back together in April but splits again in September the first three months of separation still count towards the year apart.
If you have lived apart (been separated) for two years continuously, you can apply for a dissolution of the civil partnership without your partner's agreement. A court will usually agree to a dissolution of the civil partnership if you have been separated for two years.
A transsexual person who has an interim gender recognition certificate can end her/his civil partnership on this ground. S/he must apply to a Gender Recognition Panel.
For more information see www.grp.gov.uk
The partner who is applying for the dissolution of the civil partnership is called the pursuer. The other partner is the defender.
If you want to start dissolution of a civil partnership proceedings you will need to get the forms from the sheriff court or the Scottish Courts Service website at www.scotcourts.gov.uk for a DIY dissolution of a civil partnership.
You have to use a solicitor to start a dissolution of the civil partnership under the ordinary procedure.
If you are applying for a dissolution of the civil partnership and want help to fill in the forms, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
If you both agree to the dissolution of the civil partnership, the court will look at the paperwork that has been submitted. Under the ordinary procedure it will be submitted by the solicitor and is likely to include a summons (or initial writ) and the sworn statements (affidavits) made by the pursuer and any witnesses.
If you have children, the court will need to be satisfied that you have made satisfactory arrangements for them. The court may want to discuss the arrangements and possibly meet the children if they are old enough. A dissolution of a civil partnership which you both agree to can take up to six months if there are no children or money issues involved. It can take longer if children are involved and the court is not satisfied with the arrangements being made for them. For more information about arrangements for the children, see under heading Children at the end of a civil partnership.
When the court agrees to grant the dissolution of the civil partnership it issues a dissolution of a civil partnership certificate called an extract decree of dissolution of a civil partnership.
If you start proceedings to dissolve the civil partnership and your partner doesn't agree about the grounds or arrangements for children or property s/he will have to send a Notice of Intention to defend to the court when s/he first receives the initial writ from the court. S/he has to say why s/he doesn't agree that the civil partnership has broken down. There is likely to be a court hearing for a judge to decide whether the civil partnership has broken down irretrievably.
Even if the court agrees that the civil partnership has broken down, it has to be satisfied that you have made satisfactory arrangements for any children. They may want to discuss arrangements about the children and possibly meet them if they are old enough. For more information about arrangements for the children, see under heading Children at the end of a civil partnership.
If the court agrees to grant the dissolution of the civil partnership, it will issue a dissolution of a civil partnership certificate called an extract decree of dissolution of a civil partnership.
You may be able to get help with legal costs. Whether or not you get it depends on both you and your partner's income, capital and how reasonable the Scottish Legal Aid Board thinks it is to give you help.
If you do get help, in some cases you might have to pay some of the legal costs back, out of money or property you are given when the dissolution of the civil partnership comes through. This is called clawback. Make sure your solicitor explains clawback to you before you start the case.
For more information about help with legal costs, see Help with legal costs.
When you stop living together, you'll have to decide who will look after the children. Generally it is best if everyone can work together to agree about what is in the children’s best interests.
The Scottish Government has produced a parenting pack that explores all the issues. It is available at www.scotland.gov.uk
You or your partner could both have parental responsibilities and rights for the children. This could be because you are the child’s parent or because a court decided that it was best for the child to give you parental rights and responsibilities. It may also be because the child was conceived by donor insemination or fertility treatment on or after 6 April 2009 and both partners are legal partners. When you have parental responsibilities and rights for a child it means that you have to safeguard and promote the child’s health, development and welfare. You also have the right to have the child living with you or decide where the child should live.
You may be able to make arrangements between yourselves about where the children are to live and what contact should take place with the other parent. However, if this is not possible, the court can make the decisions about the children.
If you are getting a dissolution of the civil partnership, the court will not grant it until it has looked at the arrangements for the children. The court is primarily concerned about the children’s welfare. You'll have to give the names of all dependent children of the family. Children under 16 are usually thought of as dependent. The duty to provide for (maintain) a child usually lasts until a child is 18 or 19 if in full-time non-advanced education or if in full time further education up to 25. The court will want details of children who are the children of both partners together, adopted children, step-children and any children who have been treated as part of the family. It doesn't include foster children.
You have to give details of how the children will be looked after. You'll need to say where the children will live and who they will live with, as well as the financial arrangements for their support. The court's main concern will be to decide what's in the best interests of the children. If the court is satisfied that the arrangements made by the parents for the children are in their best interests it will not change them. It will only make decisions where this is necessary to sort out a disagreement about arrangements. Decisions made by the court are called orders.
You could get help from a mediator to make arrangements about the children, see under heading Family mediation.
If you are thinking of going to court about arrangements for your children, you should consult an experienced adviser, for example, a family law solicitor or go to a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
A court will only make an order concerning children if it feels it is in the best interests of the children to do so. A court can make orders about:-
The court can make a residence order in favour of:-
The court will normally expect you and your partner to make your own arrangements about maintaining contact with your children. The court will only make a court order if you can't agree.
The contact order may include conditions. It may also say what sort of contact you can have, for example, visiting, telephoning or writing letters. Orders can also be made to allow contact between a child and other relatives or friends.
A court can make an order called an interdict to prevent one parent from doing something that the court thinks is not in the child’s best interests.
A court can make an order about a specific issue that a child's parents cannot agree about, for example, religious education.
Until you have a dissolution of your civil partnership you and your partner have a legal obligation to provide financial support for each other.
You may need help to agree financial arrangements - see under heading Family mediation.
If you both agree to financial support, this is called a voluntary agreement. It can be written down or it could be a verbal agreement.
You can agree, for example, that one of you will make weekly payments to the other for the support of children, or will meet rent or mortgage payments and household bills or pay for the children's clothing and holidays.
Before you agree on a package of financial support, you should get legal advice about whether it is an appropriate arrangement. It may be useful to have an agreement written up by a solicitor in case of future dispute. You might get help with the costs of making a voluntary agreement.
For more information about help with legal costs, see Help with legal costs.
You can apply for a court order for money at the end of a civil partnership. The court will consider all financial circumstances of both partners, including pension arrangements.
A court can make an order for regular payments to be made or for a one-off lump sum. It can also make an order about pension arrangements.
You might get help with legal costs when you apply to court for financial support. However, you might have to pay some of the legal costs back, out of money or property you are given by the court order. This is called clawback. Make sure your solicitor explains clawback properly to you before you start court action. Where pension arrangements are involved, you should also consider getting specialist financial advice.
For more information about help with legal costs, see Help with legal costs.
Partners who agree can make a voluntary arrangement for money for children. If you make an agreement in writing with the help of a solicitor, the agreement can be legally enforceable. If you need advice on the options available for arranging child maintenance and for advice on how to set up a voluntary child maintenance agreement, you can contact the Child Maintenance Options Service. Their helpline number is 0800 988 0988. You can also go to the Service's website at www.cmoptions.org.
The Child Maintenance Options Service can help you:
The issue of money for children is complex and you may find it helpful to get further advice from an experienced adviser, for example, a family law solicitor or a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
At the end of your civil partnership, the court can give you or your partner rights to the home or can take rights to occupy the home away from either of you. As long as you are both still living in the home, whether it is owned or rented, you both have rights to live in it. If one partner has been violent there are special orders the court can make to change the violent partner's rights to the home and exclude her/him.
For more information about help you can get if your partner has been violent to you, see Domestic violence.
If one of you is a sole owner or a sole tenant and the other partner leaves the home, s/he may have to go to court to enforce her/his rights to get back in.
If you are thinking of going to court about your housing rights after the breakdown of your civil partnership, you should consult an experienced adviser, for example, a family law solicitor or a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
If you and your partner are owner-occupiers the value of the family home is likely to be an issue within the dissolution of a civil partnership settlement. You should see an experienced adviser about decisions that can be made about the family home.
Anyone who wants to protect their rights should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
If a mortgage is in joint names, both people are jointly and solely liable for the mortgage payments. This is known as joint and several liability.
This means that if one of you leaves and stops contributing to the mortgage payments, the mortgage lender can ask the other person to pay the full amount.
If a mortgage is in one person's name, only that person is liable for the mortgage payments.
However, if your name is not on the mortgage and you want to stay in your home, you will need to keep up the mortgage payments. If your ex-partner is no longer making any payments, you will need to pay the full amount, otherwise the mortgage lender can start action to repossess your home. Get in touch with the lender and negotiate what payments might be accepted to stay in the home. You have the right to do this because you are in a civil partnership.
A joint tenancy means that all of the tenants named on the tenancy agreement are jointly and solely liable for the rent. This is known as joint and several liability.
This means that if the other joint tenant leaves and stops making payments towards the rent, the landlord can ask you to pay the full amount. That's why it's important to keep paying the full amount, otherwise you may get evicted.
In some cases, a joint tenant can end the joint tenancy by giving notice to the landlord. If you want to stay in the property you'll need to make sure this doesn't happen or if it has happened, you can negotiate with the landlord. Your landlord may be able to give you a new tenancy in your name only. If you are in this situation you should get advice.
You can get advice from your local CAB. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
If a tenancy is in the name of your civil partner, they will be liable to pay the rent for as long as the tenancy continues. If the rent isn't paid and arrears build up, the landlord may take action to evict you.
If your ex-partner is no longer paying any rent, you should negotiate with the landlord to pay the rent because you have the right to do so. If the landlord won't accept the rent you should get advice straightaway. If there are arrears you should also get advice about how to pay these off if you want to stay in the home.
You can get advice from your local CAB. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
If you stay in your home after your partner has left, depending on your income, you may be able to get Housing Benefit to help pay the rent. If there is a mortgage, you might get help with the mortgage interest.
For more information about Housing Benefit see, Help with your rent – Housing Benefit.
For more information about help with mortgage interest see, Help with mortgage costs if you're not working.
Family mediation is a way of helping couples who are separating or divorcing to sort out disagreements and reach decisions about things like money, property and looking after the children. To use this service, you both have to be willing to go along voluntarily. Any decisions you make there will not be legally binding but may help you to start drawing up an agreement.
A couple can use family mediation services as soon as possible after they have decided their relationship is ending and they feel able to discuss any disputes. Mediation can be helpful before legal proceedings begin, to encourage co-operation between the couple and to prevent disputes from getting worse and agreement becoming harder to reach in the future. Family mediation can also be used after a separation or dissolution of a civil partnership if new issues arise or there are outstanding issues to be resolved.
For more information and a national map of local services, see www.relationships-scotland.org.uk.
Some local solicitors may be skilled in family mediation. You can check what is available in your area by contacting the Law Society of Scotland on 0131 226 7411 or see www.lawscot.org.uk.
You can find a summary of this information about ending a civil partnership in our fact sheet.
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