New legislation at last brings an opportunity for gay couples to marry.  At the same time it will open up some of the same perils and pitfalls that currently face heterosexual married couples following relationship breakdown or death.

The Marriage (Same Sex Couples) Act 2013 was given royal assent on the 17th July 2013.  From Saturday, 29th March the first same sex weddings can take place in England and Wales.  In a nutshell the Act:

• Allows same sex couples to marry in civil ceremonies
• Allows same sex couples to marry in religious ceremonies, where the religious organisation has opted in to conduct a ceremony and the minister agrees.
• Enables civil partners to convert their partnership to a marriage
• Enables same sex marriages conducted abroad to be recognised as marriages in England and Wales.
• Enables married individuals to change their legal gender without having to end their marriage.

After years of campaigning, the Act marks substantial progress towards equal rights for same sex couples but there are some differences:

• Married persons on the same sex will not be able to divorce on grounds of adultery, or have their marriage annulled on the grounds of non consummation.
• Pension inheritance rights are reduced on the death of a same sex marriage because employers are only required to pay the same sex surviving spouse based on contributions made since 2005.

Sarah Young, Partner at Ridley and Hall solicitors, specialising in contentious probate says:

“The new Act, despite some of its flaws is very welcome.  Getting married is a huge and exciting commitment in any couple’s life.  If you are a same sex couple and are planning to get married you will probably be thinking about colour schemes, flowers and the venue, but making a Will should also form part of your plans. It’s important to be aware that if you already have a Will in place and then marry, unless the Will is made in contemplation of marriage, that will is no longer valid when you marry.”

If you do not have a valid Will when you die, the intestacy rules will come into play.  These rules will apply to same sex married couples so that a spouse of a same sex marriage will benefit from their husband or wife’s estate.

But sometimes the intestacy rules or a will can result in a deceased failing to make ‘reasonable financial provision’ for a loved one. The Inheritance (Provision for Family and Dependants) Act 1975 allows a claim to be brought against a deceased’s estate in these circumstances.

To be eligible to apply under the 1975 Act you have to be either:

• A spouse or civil partner of the deceased or
• A cohabitee (for the 2 years before the deceased’s death) or
• A former spouse or civil partner (so long as you have not formed a subsequent marriage or civil partnership) or
• A child of the deceased or
• Any person that was treated by the deceased as a child of the family in relation to the marriage or civil partnership or
• Any person who immediately before the death of the deceased was being maintained, wholly or partly, by the deceased.

Sarah Young explains why the Inheritance Act matters:-

“I acted in a case where my client lived with his gay partner in a house that was in his partner’s sole name.  Years before the partner had been in another relationship and had made a Will leaving everything to his then boyfriend.  He died suddenly without making a new Eill and my client was devastated to find out that he would not receive anything because of the earlier Will.  He brought a claim under the Inheritance Act as a cohabitee but the previous boyfriend who was the beneficiary under the Will tried to argue that my client was just a lodger, (even though the house only had one bedroom!).  The case was resolved in my client’s favour but it was extremely distressing for him to have to ask friends to provide statements to prove that he was in a loving relationship at the time when his partner died.”

She went on to add:

“The Marriage (Same Sex Couples) Act 2013 may lead to many more gay couples getting married as they finally feel that their relationship will be treated equally in the eyes of the law. That must be something to be celebrated, but with the benefits of marriage come also the potential legal and financial problems of death and divorce…so plan for the worst and hope for the best!”

For further advice please contact Sarah Young on 0843 289 4640.