AS THE GOVERNMENT CONSIDERS A RAFT OF BENEFITS FOR SAME-SEX COUPLES, RACHEL ROTHWELL LOOKS AT WHETHER THE PROPOSALS GO FAR ENOUGH AND WHETHER HETEROSEXUAL PARTNERS SHOULD BENEFIT

The Registered Partnerships Bill announced in the Queen's Speech last month heralds an era when same-sex couples can enjoy the same rights as their married heterosexual counterparts.

That means it is also big news for the many solicitors who will be asked to advise on the repercussions for any children (whether adopted or from previous relationships) and assets - and to sort out the mess if and when things go wrong.

The government published a consultation paper last June outlining its plans for a new partnership regime exclusively for same-sex couples.

This will form the basis of the new Bill, which is expected to pass through Parliament this year.

The proposed scheme aims to put registered same-sex couples on a par with married partners, giving them responsibility for each other's children, recognition for immigration purposes, exemption from testifying against each other in court and joint assessment for government benefits.

On the breakdown of a registered partnership, the government proposes rights governing property distribution and contact with children.

In short, the new registered partnership regime will straddle a huge range of laws, conveying a wealth of rights previously unheard of for same-sex couples.

Does that mean same-sex couples will soon be queuing up on the pavements of the registry offices where their partnerships will be registered after 15 days' notice? The reaction so far is cautious.

Graham Wilson, a partner at Birmingham-based Brindley Twist Tafft & James, who acts for many gay clients, says: 'The take-up will depend on what actually comes out of the sausage machine once the Bill becomes legislation.

'If it is toned down or fudged, it will be a disaster - like the [non-legally binding] civil ceremonies for same-sex couples in Greater London, which were seen as patronising and a gimmick by the gay community.

But if people can see that a registered partnership is a real benefit to them, they will use it.'

Andrea Woelke, chairman of the Lesbian and Gay Lawyers Association and a partner at London firm Anthony Gold, thinks the drafting of the Bill will be crucial to its success.

He says: 'It is important that the legislation is drafted so that the provisions are kept very close to those of marriage.

The worst case scenario for lawyers will be if it is set out with slightly different wording to marriage.

There will be a lot of potential for negligence if there is a different system for registered partnerships - firms will either dabble and do it badly, or a handful of firms in London and the bigger provincial towns will become experts.'

Civil partnerships between same-sex couples are already legal in some European countries.

In Germany, an entire legal institution was created to exist alongside marriage, which has proved difficult to implement in practice owing to its complexity.

The Norwegians took an easier route, using a short piece of legislation that simply lists the circumstances in which registered partnerships differ from marriage.

In all other areas, the two are the same.

As Mr Woelke says: 'This allows all family lawyers, not just a small group of enthusiasts, to advise couples.

Moreover, in England where the legal system is based on precedent case law, it allows legal certainty because existing case law is applicable to the new institution.'

But should civil partnerships completely mirror even the ugliest aspects of matrimonial law? Gill Butler, a family lawyer and partner at London firm Evans Butler Wade with considerable experience of acting for lesbian and gay people, says: 'It seems a shame [for the new regime] to be using a fault-based system for dissolution, when most lawyers want to move away from that concept for marriage.

But until there is a no-fault system for heterosexual couples, it is sensible for partnership legislation to move in line with family legislation.'

The proposals will entitle registered same-sex couples to next-of-kin status at hospitals if one partner suffers injury or illness, and pension benefits if a partner dies.

But there is a hitch.

As Mr Woelke points out: 'There is no provision that compels pension companies to offer the same deal to registered partners as to married couples.

'In fact, there is nothing in the proposals that compels private organisations to do anything.

Private hospitals do not have to follow National Health Service (NHS) guidance on respecting the same-sex relationship and treating the partner of a patient as the next of kin, for example.

Even in NHS hospitals, I am very sceptical about what legal force any guidance would have.'

How the government will tackle this issue is not yet clear.

Barriers have already been lifted to allow same-sex couples to adopt children through new changes to adoption legislation.

The partnership proposals support this approach by giving registered partners the same right as step-parents to apply to the court for parental responsibility for a partner's children, without having to obtain a joint residence order.

Ms Butler sees this as a significant development: 'The presumption of the new legislation is that [same-sex couples] are a family and they will be treated like other families.

This is ideologically important as well as legally important.

'It is very good that the proposed legislation acknowledges the responsibility of the non-biological parent for children financially.

At the moment, in a same-sex relationship there is no mechanism for financial support from, for example, the non-biological mother - the biological mother cannot go to the Child Support Agency.

The legislation acknowledges responsibilities as well as rights.'

Under the proposals, dissolution will be a formal, court-based process, as it is for marriage.

The grounds for this will be the same as for divorce - either separation for a two-year or five-year period (depending on whether the other party consents to the dissolution), or evidence that the relationship has broken down irretrievably owing to the 'unreasonable behaviour' of one party.

But unlike for divorce, adultery will not be a separate ground for dissolution, although it could constitute unreasonable behaviour.

The proposals give long-overdue benefits and duties to same-sex couples in stable, committed relationships.

But what about heterosexual couples who, for reasons varying from finance to simple lethargy, have never married?

The courts are filled with individuals - usually women - who find themselves exposed through a misplaced belief in the concept of a common-law spouse.

Jane Craig, chairwoman of the Solicitors Family Law Association's cohabitation committee says: 'There is a strong case for reform and we see the Registered Partnerships Bill as the first stage in this.

In addition, we propose "safety-net" legislation which will protect the growing number of unmarried cohabiting couples and unregistered same sex couples equally.

'Our proposals do not equate cohabitation with marriage or civil partnership but would allow the courts to take into account all the circumstances to do what is fair between the couple.

As MPs and peers scrutinise the Bill, the lack of legal protection for cohabitating couples will become more and more apparent.

'We will be working hard over the coming months to present the government with a workable solution which we will urge them to adopt and implement.'

The Law Society's family law committee is addressing this issue by drafting legislation which it hopes to introduce through a private member's Bill during this Parliament - provided this does not risk jeopardising the Registered Partnerships Bill.

Its proposals would give property and other rights to individuals who have been cohabiting for two years - with a high degree of court discretion to ensure that the law operates fairly.

Committee chairwoman Christina Blacklaws says: 'Most people are shocked to realise that even though they may be living with a partner and have had children together, the law affords them no rights.

It is a great concern that those who are living together but not married are severely prejudiced in the eyes of the law.

There is nothing to protect the weaker party on separation.

'We are very supportive of the civil partnership concept, and we were delighted and surprised by the proposals.

But there is a great swathe of society which is still unprotected at the moment.

We don't want cohabiting couples to be the only section of society left which is not catered for by the law.'