Same sex, Different rules?

In most areas of the law, gay and lesbian couples have always been at a disadvantage. Even where straight cohabiting couples have had rights, gay couples have often had none. However, this is now a thing of the past in almost all cases. But don't get too carried away with the celebrations. Being treated the same as straight cohabiting couples isn't that brilliant - they don't have many rights either!

Here, we give you an over view of the changes in recent years - and what you might need to do to protect yourself and your partner.

If you were to break up...

Neither member of a couple (unless you are civil partners) has any right to financial support from the other, and there is no formal process equivalent to divorce. You therefore need to agree how to divide your property and money between yourselves. This is best done while everything is fine and dandy - consider making a Living Together Agreement. If you never need it, it can just sit in a draw. See the Living Together Agreements (292 KB) step-by-step guide for more information.

If you own your own home (either jointly or in one name) you need to be clear what your rights would be if you split up - you may want to change your situation or improve your rights. Read our Housing & LivingTogether (257 KB) for more information.
!! Children

It is now possible for gay and lesbian couples to foster or adopt children jointly. If you have done this you are in the same position as all other adoptive parents, you will both have parental responsibility.

Many gay parents however aren’t in this position, either because they adopted before it was possible to adopt as a couple, or because the child is the biological child of one partner. If you are in this position, usually only one of you is legally the child’s parent. Only that parent automatically has parental responsibility, although their partner can apply for it if you have registered your civil partnership. See our Children section for more information about Parental Responsibility and how and why you might want to get it.

Either way, if your relationship breaks up you will need to work out who the children will live with and how they will be supported. You could make a voluntary agreement to enable the children to continue having a close relationship with both of you. If you find this hard, family mediation can often help (see our Family Mediation pages). Or, if you really can’t come to an agreement, you may be able to ask the court for help. If you are an adoptive or biological parent you are in the same position as other mums and dads. As a non-biological or non-adoptive parent you can apply to the court for either a contact or a residence order (which would enable you to see the child or to have the child live with you) if you have lived with the child for 3 of the last 5 years, and within the last three months. If you do not meet this requirement you may still be able to apply for an order but you would have to ask for the court’s permission first.

If you registered your civil partnership both parents (including non-biological or non-adoptive parents) have a responsibility to pay child support for the child, although voluntary agreements can be made. If you did not “marry” and you did not adopt the child, you do not have any legal duty to pay for their upkeep.

If one of you were to die...

Like other cohabiting couples, when one member of a same-sex cohabiting couple dies, the other is not automatically entitled to inherit the estate. If you never married/registered your civil partnership, no matter how long you’ve been together, you are not recognised as the closest family member.

It is very important that you make a will if you don’t want to leave your partner in financial difficulties if you die. See our Wills & LivingTogether (534 KB) for more information about cheap and easy ways to make a will - so you can stop putting it off!

Even a will doesn’t get you around the next problem. Inheritance tax is charged at 40% on anything in an estate over the ‘threshold’ (£285,000 for 2006-7, £300,000 for 2007-8). Married people and Civil Partners have exemptions on the property they leave each other, but unregistered partners don’t. This includes your home. This forces many people (particularly where high house prices push the inheritance over the threshold) to have to sell their home in order to pay the tax. See our Inheritance Tax & Living Together (337 KB) for details of how to avoid it.

Benefits

Since December 5th 2005 same-sex couples have been recognised as couples by the benefits agency. This means you have to make joint claims where appropriate and both partner's income and savings are be taken into account in deciding entitlement.

Similarly civil partners are treated just as married couples are for benefit purposes, and there are still some serious downsides to not being married. Benefits that depend on contributions, such as bereavement benefit, are only payable to married or civil partners. For example, if one cohabiting partner dies, the other, even if s/he has been wholly financially supported by his/her partner, is not entitled to bereavement benefits or anything else his/her married counterpart would be.

See our Benefits and LivingTogether Leaflet (283 KB) for more information about how not being civil partners may affect your benefit and state pension.

Private pensions

Since 1999 it has been possible for pension schemes to pay survivors’ benefits to same-sex partners as well as heterosexual ones, and many private pensions schemes (but by no means all) have now altered their policies to do so. If you have a private pension you should check if they would make payments to your partner.

Employer’s pension schemes and other occupational benefits

In December 2003 discrimination at work on the basis of sexuality was outlawed. This brought to an end the inequality of occupational pension payments on death, and death-in-service benefits. Now, if a scheme will make payments to male-female unmarried partners they must also make payments to same-sex partners on the same grounds. Similarly, any fringe benefits (such as cut price travel or medical insurance) that come as part of the pay package must now be offered on equal grounds. However, if they are only offered to married couples, cohabiting couples will miss out.

See our Pensions leaflet (527 KB) for details of what all cohabiting couples need to be aware of.

Next of Kin

The Guidelines given to NHS Trusts and hospital staff do now make it clear that a cohabiting partner, whether same-sex or not, should be treated as the next of kin if their partner hasn't nominated anybody. However, people do still experience problems and anecdotal evidence suggests that this may be more likely for same sex couples. Avoid it happening to you by making your own Next of Kin card with our Next Of Kin (103 KB).

Have you been affected by these issues? Then please tell us your story by using the comment box below.