July 2013 – The Marriage and Civil Partnership (Scotland) Bill “Spouses” – not what they were

Author: Mitchells Roberton
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The Marriage and Civil Partnership (Scotland) Bill (“the Bill”) was introduced to the Scottish Parliament last month. This Note looks at the main changes which the Bill contains by outlining the current position and then going on to look at some of the main things the Bill would change. The most high-profile aspect of the Bill is the introduction of same-sex marriage. This caused some controversy. This Note does not enter into that controversy but one preliminary point about it is made.

 

Preliminary point


  • The Scottish Parliament’s Standing Orders provide that a Government Bill shall be accompanied by a Policy Memorandum which sets out, in particular, “the consultation, if any, which was undertaken on [the policy] objectives [of the Bill] and the ways of meeting them or on the details of the Bill and a summary of the outcome of that consultation …”
  • There were in fact two Consultations leading up to the Bill. The first, in 2011, covered in particular the question of introducing marriage for same sex couples. There were over 77,000 responses: the largest number ever for a Scottish Government Consultation. A significant number of those responding were against the introduction of same-sex marriage. The Scottish Government’s Policy Memorandum accompanying the Bill confronts the opposition thus:
  • “A number of consultees have asked why the Government is proceeding with same sex marriage although most respondents to the first consultation were opposed. A number  of points arise:
    • a consultation is not a referendum…
    • the first consultation also showed significant support in Scotland for the introduction of same sex marriage;
    • the Bill reflects comments made in the first consultation. For example, there are strong protections for religious and belief bodies and celebrants, with an opt-in method to be approved to solemnise same sex marriage.”

 

Particular points about the current position – marriage and civil partnership


 

Marriage

 

  • Under the Marriage (Scotland) Act 1977 marriage must be between two parties of the opposite sex. This is not all that obvious from the Act itself. The Act provides that “for the purposes of [section 5 (Objections to marriage)] and section 6 [(The Marriage Schedule)] … there is a legal impediment to marriage where … both parties are of the same sex”. One may assume – although this is not expressly stated in the Act – that any marriage that went ahead where the parties were of the same sex would be void.
  • A marriage may either be a “civil marriage” or “religious marriage”.
  • If a “civil marriage” it can only be solemnised by a registrar appointed by the Registrar General and must take place at the registrar’s office or other officially approved location.
  • If a “religious marriage” it must be solemnised by one of the prescribed religious bodies or a celebrant of some other religious body as is authorised by the Registrar General. In this case the marriage may take place anywhere.

Civil partnership

 

  • Civil partnerships were introduced by the Civil Partnership Act 2004 which allows same-sex couples to obtain legal recognition of their relationship.
  • The responsibilities and rights of civil partners are largely the same as for married couples. Key differences however are that civil partnerships:
    • may not take place in premises used solely or mainly for religious purposes, and
    • they can only be registered by civil registrars in a civil ceremony.
  • So, whereas in Scotland you can be married in either a religious ceremony or a civil ceremony civil partners have no such choice for their civil partnership: it is a civil ceremony or not at all.
  • Civil partners may of course have a religious blessing for the union but this has no legal effect. On the other hand, an opposite sex couple may choose to have a single religious marriage ceremony where the celebrant has a dual role: acting in both a religious and civil capacity.

 

Some of the key changes in the Marriage and Civil Partnership (Scotland) Bill


 

Section 2 (Objections to marriage) of the Bill

 

  • Section 2 of the Bill provides for marriage between same-sex couples. This is easily enough done. As mentioned above, the Marriage Scotland Act 1977 currently says that there is a “legal impediment” to marriage “where both parties are of the same sex”. The Bill simply removes those words. Same-sex marriages will then be possible.
  • One particular aspect of this amendment worth noting is that even if the couple are not of Scots “domicile” that would not be a barrier to their contracting a same-sex marriage in Scotland. That is consistent with the current law where an opposite-sex couple may be married here under Scots law even if they could not be so in the country of their “domicile”.

Sections 10, 11 and 12 of the Bill – religious or belief marriage

  • Currently there is a range of religious bodies whose celebrants are authorised to conduct marriages. The Bill provides that not only will celebrants of religious bodies be able to conduct marriages: so too will celebrants of “belief bodies”.
  • For these purposes there will not however be two separate categories of marriage a “religious” one and a “belief” one: there will only be one category of marriage ceremony – a “religious or belief” ceremony.
  • A “religious or belief body” means “an organised group of people (a) which meets regularly for religious worship; or (b) the principal object (or one of the principle objects) of which is to uphold or promote philosophical beliefs and which meets regularly for that purposes.” Of course, any such religious or belief body has to be appropriately authorised and registered.

Section 22 (registration of civil partnership)

 

  • As mentioned above, currently a civil partnership can only take place by way of a civil ceremony. Section 22 introduces the “religious or belief” category to the celebration of a civil partnership. So, a couple who wish to enter into a civil partnership (rather than a marriage) with a religious or belief element may do so in one and the same ceremony.
  • The Consultation exercise recognised that if same-sex marriage was to be introduced there were arguments that (i) there is no need for civil partnerships at all, or (ii) that, whilst civil partnerships could continue, there would be no need to allow civil partnerships to be registered through a religious ceremony. But both those arguments were rejected.

 

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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