British couples to go Dutch?

  • Author : Richard Frimston
  • Date : April 2011
ABOUT THE AUTHOR: Richard Frimston TEP is a Partner at Russell Cooke LLP and Chairman of the STEP EU Committee

In the last issue, I flagged up the issues of the effects of marriage on property rights, private international law and the proposed EU Regulation Rome IV.

In the meantime there has been much debate in the UK about the possible extension of marriage to same sex couples. Less has been mentioned about the possible availability of civil or other registered partnerships to mixed sex couples.

The Netherlands is some ten years down the track, having introduced registered partnerships in 1998 for both mixed and same sex couples, and then extended marriage to same sex couples in 2001. One party to the marriage or partnership must be a national of, or resident in, the Netherlands. Interestingly, while, to begin with, 30 per cent of Dutch registered partnerships being entered into were between mixed sex couples, that figure has now risen to 90 per cent.

Before March 2009 it was possible to convert a marriage (whether a Dutch marriage or that of a different country) into a registered partnership, and a high proportion of registered partnerships were such conversions. Such partnerships were then dissolved by mutual agreement. These ‘Flash Divorces’ as they were called, caused considerable difficulties since the conversion was generally not recognised in other jurisdictions and the subsequent dissolution of the registered partnership was also not always recognised outside the Netherlands. In 2004, 5,000 marriages were dissolved in the Netherlands in this way. Of conversions of marriages to registered partnerships generally, 60 per cent were subsequently dissolved within one month and 90 per cent within six months. The Dutch law for the promotion and preservation of parental authority, and for responsible divorce, changed the law on 1 March 2009 so that such conversions are no longer possible.

What are the lessons for the UK from the Netherlands?

  • Introduction of mixed sex civil partnerships may have a bigger effect than that of same sex marriages.
  • Don’t permit conversion from one to the other.

But, surely, civil partnership and marriage have pretty much identical legal effects these days? The Equality Act 2010 s.198 has abolished the common-law obligation of a husband to maintain his wife.

Professor Lesley King reminded me that Dibble v Pfluger [2010] EWCA Civ 1005 shows how easily statutory provisions can be overlooked. Section 2 of the Law Reform (Miscellaneous Provisions) Act 1970 provides that when a couple terminate their agreement to marry, property in which either or both had a beneficial interest during the engagement is subject to the same rules as determine the rights of husbands and wives in equivalent circumstances, including s.37 of the Matrimonial Proceedings and Property Act 1970.

Section 2 does not apply to civil partners. Clearly the law does not equate prospective civil partners to an engaged mixed-sex couple.

However, it is Rome IV that shows the main differences. Some EU states, such as Spain and Portugal, have not introduced registered partnerships at all. They permit marriage by both same and mixed sex couples and usually recognise a same-sex registered partnership as a marriage. Sweden and Norway have followed the Dutch example. Ireland is following on behind the UK and introduced a civil partnership similar to the UK on 1 January 2011, with a three-month registration period. The German and Dutch registered partnerships have exactly the same matrimonial property regimes as marriage.

Since only some states have registered partnerships, the only law that can govern the partnership is that of the place of registration. The law governing the property effects of marriage, on the other hand, is usually independent of the place of marriage and can be that of the common domicile or of nationality or of a common residence.

If the law is changed in the UK, existing mixed-sex unmarried citizens who have signed a civil union (Pacte Civile de Solidarite – PACS) in France, to obtain the French succession duty exemption while avoiding getting married, may find themselves surprised suddenly to have an overseas relationship automatically recognised as a UK civil partnership. They may want to keep a close eye and consider dissolving the French PACS in France while they still can.

The simplification of cross-border issues in the EU does give us so much to think about.


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