October 2019 – Coupledom Re-Revisited – The Evolution Of The Civil Partnership

Author: Mitchells Roberton
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  • The Bullet Point Update back in August 2016 – headed “coupledom revisited” – outlined the Scottish Government’s consultation about the fact that while same sex couples could enter into a “civil partnership” together different-sex couples could not. That consultation outlined three different options for reform.
  • It was followed by another Government consultation in 2018 which narrowed the proposed options to two.
  • Following those consultations – and consideration of the responses to them – the Civil Partnership (Scotland) Bill was published on the Scottish Parliament’s website on the 1st of this month. Of course, the Bill may be subject to some changes of detail before it is enacted. ““““““““““““But the principle thrust of what it provides will likely remain intact.
  • The key element in the Bill is that of the options canvassed in the consultations the one that has “won” is the option to allow different sex couples to enter into a “civil partnership” together.
  • This Update gives a bit more of the background – and what will come when the Bill is enacted.

Terminology

  • First though, the thorny topic of terminology. The Scottish Government Policy Memorandum for the Bill says:

“The Scottish Government uses “mixed sex” civil partnership to describe a civil partnership where the parties to it are not of the same sex. Other language options to describe the relationship type include “opposite sex” or “different sex”. The Scottish Government has opted to use “mixed sex” following comments received from stakeholders to its 2018 consultation on the future of civil partnership that this is a more inclusive term than “opposite sex”.” 

  • Nevertheless, when it comes to the Bill itself, it refers to “different sex” rather than “mixed sex”. For legislation at least that seems preferable as being the more transparent phrase and “different sex” is the phrase used in this Update.

Some more background to the Bill 

  • In a case in 2018, the UK Supreme Court made a declaration that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights (“ECHR”) because it did not allow different sex couples to enter into a civil partnership.
  • This case prompted the second consultation because the Scottish Ministers may not act in a way that contravenes the ECHR, and civil status e.g. marriage and civil partnership is a matter devolved to the Scottish Parliament.
  • As already mentioned, this second consultation on the matter narrowed the options for reform from three to two.
  • Either of those two options would have been effective in removing the discrimination from the law which the Supreme Court had found “incompatible” under the ECHR. But, in the end the Scottish Government opted to remove the ECHR “incompatibility” by making civil partnership available to all couples in Scotland.

Some of the main provisions of the Bill 

  • The main aim of the Bill, of course, is to make civil partnership available to different sex couples. So, as might be expected, the general scheme of the Act is simply to provide for the necessary amendments to the Civil Partnership Act 2004 which already provides for same sex couples to enter into a civil partnership. So, under the Bill:
  • The current eligibility criteria for entering into a same sex civil partnership (under the Civil Partnership Act 2004) will be applied to different sex couples (apart, of course, from the requirement that the couple be of the same sex).
  • Same sex civil partnerships are created by civil registration. Religious and belief registration of civil partnership is also available. The Bill replicates those arrangements for different sex couples.
  • It also provides for the legal consequences of entering into this relationship.
  • Different sex civil partnerships from elsewhere in the UK will be recognised in Scotland.
  • There are provisions on the recognition in Scotland of overseas relationships similar to different sex civil partnerships.
  • At present, couples in same sex civil partnerships can change their relationship to a marriage. The extension of civil partnership to mixed sex couples will mean that mixed sex civil partnerships will be covered by these arrangements.

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: email Fiona@mitchells-roberton.co.uk

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