Civil partners and s. 117 claims
27 August 2021
You might recall last week that I mentioned that s. 117 applications cannot succeed where a spouse inherits, because spousal bequests are exempt from challenge by children (s. 117(3) Succession Act). There is an important exemption to this. That is children of civil partnerships. It is open to such children to make an application under s. 117. However, the action will only succeed against the legal right share of a surviving civil partner and also if considered just by the court taking into account all the circumstances and the testator’s financial circumstances and his or her obligations to the surviving civil partner.
This arises under s. 117(3A) of the Succession Act. While an important concession or benefit to children of civil partnerships, its significance will wane over time. This is because civil partnership was a scheme of relationship registration for same sex couples. Since the passing of the Marriage Act in 2015, it is not possible to register a civil partnership and so marriage is the option for same sex couples. So in time we will be coming across less and less civil partnerships and more marriages for same sex couples. However, it is an important concession and one to be aware of if advising same sex couples in a civil partnership who have children.