Q. CIVIL PARTNERSHIP – SHOULD I OR SHOULDN’T I?

My partner and I are considering whether we should enter into a civil partnership, as we have started to discuss the possibility of having children together. Does being in a civil partnership make any difference to us?

A. Aside from how this would affect any children of the family that there may be in the future, entering in to a civil partnership will bring about a number of changes to your legal and tax status, which are of particular consequence if one of you died.

Q. WHAT WILL THE SURVIVOR INHERIT IF ONE OF US DIES?

A. If you and your partner had not entered in to a civil partnership, and if one of you died, the survivor would have no automatic right to inherit. As a result, if you choose not to enter into a civil partnership, you really both should make wills that provide for each other (and any children) in the event of death. In those wills, you can each ensure that your surviving partner will inherit, and set out what should happen if you survive your partner.

In the wills, you can also set out all of the usual things like to whom you wish to leave specified personal belongings, your funeral wishes, and who you would like to be guardian for any children you might have. There is more on guardianship later.

The only problem with this, is that it is estimated that around 40% of the UK public have never made wills. If this is the case, you will die intestate, and if not in a civil partnership, your partner will not automatically inherit. This can lead to real injustice and financial hardship, not to mention huge legal bills coming out of your estate as your partner and family try to rectify matters, not always amicably.

Q. SO WHAT’S THE DIFFERENCE IF WE’RE CIVIL PARTNERS?

A. Well, it’s still a good idea to make a will to deal with other gifts and the points mentioned above. It’s good practice and gives you peace of mind. If, however, you had not made a will, but were in a civil partnership, at least the law will recognise the rights of your surviving civil partner.

If you have no other close family members, your surviving civil partner will take everything. If you have close family members, your surviving civil partner will get a share in your estate. It’s not ideal, but it’s a start, and it’s much preferable to the situation if you were not in a civil partnership and didn’t have a will.

Q. WHAT ABOUT TAX IF WE ARE CIVIL PARTNERS?

A. If you die with assets worth more than £325,000, everything over that value will be taxed at 40%. This is the current rate of inheritance tax. However, assets passing to a surviving civil partner are tax-free – for wealthier couples, this is a really useful tax-saving device, and is a genuine advantage to being in a civil partnership. •

Q. WHAT IS PARENTAL RESPONSIBILITY?

A. Parental responsibility is the legal term for all the rights, duties, powers, responsibilities and authority which a parent of a child has in relation to the child and his property. One of the most crucial advantages to having parental responsibility for a child is what it allows the holder of it to do in relation to the child. This will include matters relating to health, education, religion, the child’s name, living arrangements, appointment of guardians and so on. Those with parental responsibility also have to be consulted by the other parent about critically important matters such as taking a child out of the jurisdiction.

Q. SO HOW CAN PARENTAL RESPONSIBILITY BE ACQUIRED?

A. Well, save for in cases of surrogacy where a parental order is subsequently made, the mother of a child always has parental responsibility. Fathers will also have parental responsibility if they were married to the mother at the time of the birth or subsequently, or if their name is on the child’s birth certificate for children born after December 2003. A person with parental responsibility can also enter into an agreement to give it to another person, or it can be awarded to that person by an order of the Court. Courts are very likely to grant parental responsibility to a parent if such an application came before them, given how straightforward it now is to acquire it by other means.

A female civil partner will acquire parental responsibility if she and the child’s mother were in a civil partnership at the time of the child’s conception. It can also be acquired by a woman who is not the civil partner of the mother by becoming registered as a parent, entering into a parental responsibility agreement with the mother, having it awarded to her by the Court, or by virtue of having a residence order in her favour. Commissioning parents in a surrogacy situation will obtain parental responsibility for their surrogate child provided they obtain a parental order in the Court.

Finers Stephens Innocent is a Central London based law firm offering legal advice in all areas of family law and relationships for more information please visit – www.fsilaw.com