Consultation on the Draft Marriage and Civil Partnership (Scotland) Bill: Analysis of Written Responses

6 Civil Partnership

6.1 Part 4 of the consultation document set out the Scottish Government's intentions to proceed to allow civil partnerships to be registered through religious and belief ceremonies.

6.2 The intention is that the arrangements for authorising religious and belief bodies and their celebrants to register civil partnerships will be along the same lines as for solemnising same sex marriage (and as already discussed in section 5 of this report). Key elements of the arrangements are that:

• Some religious and belief bodies may wish to opt in and seek to be prescribed by regulations, so that all of their celebrants are authorised to register civil partnerships.
• Other religious and belief bodies may wish to nominate specific celebrants so that they can be authorised by the Registrar General to register civil partnerships.
• Religious and belief bodies who have opted in may wish to nominate temporary celebrants so that they can be authorised by the Registrar General.
• There would be no obligation to opt in.
• The protections would be similar to those for religious and belief bodies and celebrants in relation to the solemnisation of same sex marriage.

Question 16: Do you have any comments on the proposed approach to ensuring that religious and belief bodies and celebrants do not have to register civil partnerships?

6.3 Around 900 respondents made a comment at this question.

6.4 In the same way that many of the proposed arrangements reflect those planned for same sex marriage (and as discussed in the analysis of comments at Question 7), so many of the comments made at Question 16 were similar in their emphasis and focus. A small number of respondents suggested that their position at Question 16 could be taken as the same as that for Question 7.

6.5 Some respondents simply stated their support for the Government's plans or made only limited further comments in support of the proposals. Other respondents noted that, whilst not necessarily supporting the introduction of the religious registration of civil partnerships, they were broadly in agreement with the proposal for an opt-in system should Government proceed.

6.6 Other respondents disagreed with the proposals and, as with the same sex marriage proposals, raised a number of concerns with the primary one being about protecting the freedom of speech and of conscience of those who did not wish to be involved in the religious registration of civil partnerships. In summary, the issues were that:

• The amendment to the Equality Act 2010 is not yet in place and cannot be guaranteed.
• Even if the Equality Act 2010 is amended, there remains the possibility that claims could be made on the grounds of discrimination.
• The possibility of challenge in the European Court of Human Rights cannot be ruled out.
• The focus of the protections that are being put in place is very much on religious and belief bodies, rather than individual celebrants.

6.7 Some respondents also had concerns about aspects of the opt-in system as set out within the consultation document. As with the opt-in proposals around same sex marriage, some respondents suggested that the proposed system seeks to impose decision-making standards on religious and belief bodies. As before, it was of concern that the Scottish Government appears to wish to dictate how an autonomous religious or belief body chooses to come to its decisions. In particular, a religious body should be able to (and indeed will have already) decided whether it requires decisions to be unanimous or based on the majority view. There were also concerns about the practicality and/or fairness of requiring all celebrants to be willing to carry out religious registration of civil partnership before a body can either be prescribed in regulations or submit a list of celebrants who they wish to be authorised to register civil partnerships.

6.8 One of the few areas of comment specifically about the proposed arrangements for religious registration of civil partnerships (as distinct from the proposals relating to solemnising of same sex marriages) related to the terminology being used. For example, is it appropriate to call a function being carried out by a religious or belief celebrant (in other words, not by a representative of the state) a civil partnership? The use of 'registration' rather than 'solemnisation' within the proposals was also questioned, and it was pointed out that registrars register all events, including civil partnerships.

6.9 The second consultation question asking specifically about civil partnership sought views on the Scottish Government's plans around allowing those who wish to do so to change their civil partnership into a marriage. Key aspects of the proposals are that:

• The status of civil partnerships remains the same and existing civil partners will remain as civil partners unless they choose to change status.
• Only civil partnerships registered in Scotland can be changed into a same sex marriage in Scotland.
• A couple seeking to change their civil partnership to a marriage would have to attend a marriage ceremony in Scotland.
• A civil marriage ceremony, to which a £125 fee currently applies, will be available to couples seeking to change their civil partnership to a marriage.
• Alternatively, the couple could change their civil partnership to a marriage through a religious or belief ceremony carried out by an authorised celebrant for same sex marriage, following the legal preliminaries with the registrar.

Question 17: Do you have any comments on the proposals for changing civil partnerships to a marriage?

6.10 Around 11,650 respondents made a comment at this question. This included a number of respondents who commented on the lack of any plans to allow opposite sex couples to enter into a civil partnership.

6.11 Many of those who disagreed with the proposals commented on the principle of changing a civil partnership into a marriage, and suggested that civil partnerships are, and should remain, a civil, secular arrangement.

6.12 Others expressed their broad support for giving couples the option to change their partnership into a marriage, but frequently went on to raise issues about some of the specific arrangements. Issued raised included:

• There should not be any requirement to 'dissolve' or 'undo' the civil partnership; rather the couple should simply be able to switch from being in a partnership to being married.
• The date of the marriage should be recorded as that on which the civil partnership was entered into. This date should be used on any paperwork and, where possible, any rights associated with being married should be back-dated to the date on which the civil partnership was registered.
• There should be an option, rather than a requirement, to have a second ceremony. Some couples, for example those living elsewhere in the UK or abroad, could incur significant costs if they had to travel to Scotland to have their partnership changed to a marriage. This seems unfair, particularly given that the option to get married was not available to them when they entered into their civil partnership. In any case, many couples in a civil partnership already think of themselves as 'married' and some may see this change as nothing more than a legal technicality.
• Similarly, it is not fair to charge a fee for changing a civil partnership into a marriage. Couples have already paid for their civil partnership ceremony and did not have the option of a marriage ceremony at that time. An alternative suggestion was that those in a civil partnership would have two years to convert their partnership into a marriage at no charge, or at a much lower charge, and without the need for a ceremony.
• It would be worthwhile to at least explore options for allowing those whose civil partnership was entered into under other jurisdictions (particularly in other parts of the UK) to have their partnership changed into a marriage in Scotland.

6.13 As noted above, a number of respondents (including those responding through one of the campaigns) made a comment about opposite sex civil partnerships at this question. The analysis presented here also covers comments about opposite sex civil partnerships made at other questions or in additional comments.

6.14 Some respondents simply stated that civil partnerships should also be available to opposite sex couples. Other comments focused on the inequity of having non-equivalent arrangements for opposite and same sex couples. While some respondents wished to highlight the importance of the same options being available to all couples, others suggested that the current plans are a reflection of the confused and inconsistent approach being adopted by the Scottish Government. The potentially negative consequences of introducing opposite sex civil partnerships, particularly in terms of the cost to the taxpayer, was also highlighted by some.

6.15 Finally, some respondents questioned the need to retain civil partnerships once marriage is available to same sex couples, and suggested that the easiest and most rational approach would be to either abolish them altogether or not allow any more to be registered.