8 What does the law provide for the property of registered and non-registered partners?

England/Wales

In the United Kingdom same-sex couples can formalize their relationship by entering into a civil partnership (see Civil Partnership Act 2004). The legal consequences are virtually identical to those of marriage (including ancillary relief) and civil partnership has rightly been called 'marriage in everything but name'.

There is no specific regime for couples living together without having formalized their relationships (usually referred to as 'cohabitants') who will therefore have to rely on the general law, and particularly the (common intention) constructive trust (see especially Jones v. Kernott [2011] UKSC 53). It is important to note, however, that the courts have considerable discretion to make orders with regard to the children under Schedule 1 of the Children Act 1989 (entitled 'Financial Provision for Children'), including lump sum payments and property transfers.

Scotland

The rules for registered civil partnerships between persons of the same sex are the same as for marriage (see part 3 Civil Partnership Act 2004).

For unmarried couples cohabiting as husband and wife (or unregistered partners cohabiting as civil partners) the rules applying during the relationship are the same as set out above for married couples but the rules on split-up and death are different. There is no principle of equal sharing of matrimonial property on split-up and there are no fixed survivor's prior rights or protected legal share on the partner's death. However, the cohabitant can apply to a court for a financial provision on the split-up (designed mainly to rectify any injustice caused by contributions made or disadvantages suffered in the cohabitation) and for a discretionary provision on the death of the other partner (see sections 25 to 29 Family Law (Scotland) Act 2006).