August 2016 – Coupledom Revisited

Author: Mitchells Roberton
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Background

  • In Scotland we have the Marriage (Scotland) Act 1977, the Civil Partnership Act 2004 and the Marriage and Civil Partnership (Scotland) Act 2014. The 1977 Act concerns marriage between opposite sex couples and the 2004 Act concerns civil partnerships between same sex couples. The 2014 Act is rather wider in scope covering in particular:
    • the introduction of same sex marriage, so that same sex couples can marry each other;
    • putting belief celebrants on the same footing as religious celebrants;
    • allowing the religious and belief official registration of civil partnerships where previously they could only be civil; and
    • allowing for civil partnerships to convert into marriage.
  • So, opposite sex couples can get married; same sex couples can get married; same sex couples can become civil partners (or change their civil partnership into marriage); but opposite sex couples cannot become civil partners.
  • The Scottish Government has carried out a consultation on the combined effects of the three Acts and an analysis of the responses has been published this month. The consultation paper outlined three possible options:
    • First, the combined effect of the three Acts would simply remain as it is i.e. civil partnerships would remain as one option which would be available only to same sex couples.
    • Secondly, the scope for entering into new civil partnerships would come to an end (although, of course, those already in civil partnerships could carry on being so).
    • Thirdly, opposite sex civil partnerships would be introduced.
  • The aim of this Note is to give a flavour of the pros and cons for each option as advanced both in the consultation paper itself and the responses to it.

The first option – do nothing 

The pros 

  • The Marriage and Civil Partnership Act 2014 only came into force quite recently and it may be better to wait a bit longer before making further changes. There is still some demand for civil partnerships even although same sex couples can now get married. Some couples do not agree with marriage as an institution on cultural or religious grounds and the civil partnership alternative accommodates that.

The cons 

  • There would be an imbalance between opposite sex and same sex couples in that same sex couples would have the choice between marriage or civil partnership whereas opposite sex couples would only have the option of marriage. The majority of other jurisdictions that have same sex marriage either offer civil partnerships to both same sex and opposite sex couples or to neither.

The second option – no more new civil partnerships 

The pros 

  • It reduces complexity: there would then simply be the option of marriage by removing the separate status for same sex couples. And it is more likely that a couple would have their marriage recognised in foreign countries as opposed to their civil partnership.

The cons 

  • It is expected that there will be some continuing demand for civil partnership status. It allows same sex couples who believe (for religious reasons or otherwise) that marriage should only be for opposite sex couples to gain legal recognition of their union without having to get married. And by withdrawing the scope for future civil partnerships those in existing civil partnerships may feel a pressure to change their partnership to marriage.

The third option – introduce opposite sex civil partnerships 

The pros 

  • It would offer equality with all couples having the same options available to them. It would provide more extensive rights than those given to cohabitees for those who did not wish to marry on religious or ethical grounds or who consider marriage to be a patriarchal institution.

The cons 

  • It is expected that demand for this status would be low; that its recognition elsewhere in the UK and overseas would be limited; that Scots law already provides some rights for cohabitants; and it is already possible to have a civil (or belief) marriage ceremony.

The consultation ran from September 2015 to December 2015 with a total of 411 responses received. Of those 93% were submitted by individuals rather than groups or organisations (such as local authorities, religious groups, charities and others). It remains to be seen which option is ultimately favoured. 

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Fiona Wayman: Fiona@mitchells-roberton.co.uk

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