Comment: The kinks and quirks of equal marriage

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Writing for, family lawyer Michael Wells-Greco says it’s important that gay people are aware of the different legal provisions governing same-sex marriages ahead of 29 March.

Gay and lesbian couples will finally be able to tie the knot – legally – in England and Wales from 29 March. However, same-sex marriage differs from civil partnerships and straight marriages in some small but significant respects – for couples planning to get married or upgrade their CP, ignorance could be harmful to financial health.

Civil partners in England and Wales will be able to apply for a quick and painless ‘upgrade’ of their status to a marriage, if they want. However, civil partners in Scotland or Northern Ireland will need to dissolve their partnership first before getting married. The unfairness of this situation will – rightly – be challenged, but for now, couples across England and Wales will need to wait a little bit longer for the upgrade process to be finalised. Same-sex marriage is expected to become legal in Scotland from this autumn.

Gay marriages will be the same, in most significant respects, to straight ones in terms of rights and responsibilities towards partners and any children, as will rights and responsibilities on divorce. UK tax reliefs, exemptions and inheritance arrangements will be the same. However, couples getting married need to update wills, trusts and other legal instruments, such as pension arrangements, because their existing documents may become obsolete on marriage – even if they already refer to ‘partners’ and ‘spouses’.

Same-sex marriages entered into in the UK are likely to be fully recognised in other countries which have also introduced equal marriage – like France – as well as US and Mexican states which have recognised it locally. There is likely to be a higher degree of compatibility with these areas in terms of tax rules, inheritance, divorce and other issues, as well as on other, historically thorny problems such as access to your partner in hospital and Legal Powers of Attorney.

This is great news for couples abroad in these places – or where one partner is from a compatible country. But equal marriage is not recognised in many other places and there is no overarching EU or international law dictating if, and how, other countries must recognise same sex marriages.  If couples own property abroad, or if one spouse is not from the UK, extra care will be necessary to avoid falling foul of local tax, inheritance (and other) laws. It’s unwise to assume that what may apply to a straight married couple in other parts of the world will automatically apply to same-sex spouses.

Since the UK Law Commission has recommended formal recognition of pre-nuptial agreements in English law, there’s an even stronger case for couples – gay and straight – to protect themselves with one, and avoid potentially hostile, stressful and expensive court proceedings on divorce.

But now’s the time to focus on the positive. Equal marriage has been hard won: now it’s time for UK couples to pop the question – and celebrate.

 Michael Wells-Greco is a family law partner with international firm, Speechly Bircham.