The future of civil partnership: analysis of consultation responses

Executive Summary

1. This summary provides an overview of the analysis of the responses received to the Scottish Government’s consultation on the Future of Civil Partnership in Scotland.

2. In June 2018, the UK Supreme Court ruled that the Civil Partnership Act 2004 is not compatible with the European Convention on Human Rights in that it prevents mixed (opposite) sex couples from entering into civil partnerships.   This related to a case in England and Wales.  Given that the facts and circumstances are very similar in Scotland, the Scottish Government consulted on the future of civil partnership in Scotland.

3. The consultation ran from 28 September to 21 December 2018. It set out two options for change: closure of civil partnerships to new relationships from a date in the future, or the introduction of mixed sex civil partnerships.

4. The purpose of the consultation was to seek fresh insight into the known arguments for and against the two options.  As a result, this analysis provides a qualitative report on the points made by consultees.  The consultation also asked for views on the respective advantages and disadvantages of recognising same sex civil partnerships registered elsewhere as civil partnerships or as marriages in Scotland, in the event of civil partnership being closed to new relationships.

5. The consultation received 481 responses.  462 were from individuals and 19 were from organisations. Of the respondents that specified where they were resident, 78% said that they were resident in Scotland.

6. Respondents who were broadly supportive of the extension option typically cited equality, diversity, inclusivity, freedom of choice, access to rights and responsibilities, family security and Scotland’s image as a progressive nation as key considerations in their answers.

7. Respondents who broadly supported the closure option tended to frame the extension option as a threat to marriage, or to state that civil partnership is no longer needed now that marriage is open to all, and that having both systems running in parallel would be inefficient.  

8. Overall, the consultation did not elicit substantial new insight into the arguments for and against the two options. However, it did raise a few new points or angles, including:

• The advantages of civil partnership for women
  Extending the argument set out in the consultation that civil partnership offers an alternative for women who reject marriage as a patriarchal institution, it was further suggested that it also offers a valuable alternative for women who have negative past experiences of marriage, including abusive relationships.

• Promotion of family stability
  It was argued that civil partnerships would promote family stability for couples who reject the option of marriage but would enter a civil partnership.

• Fewer constraints for bisexual people
  Some comments highlighted that extending civil partnerships to mixed sex couples would ensure that for bisexual people, the sex of their partner would not have to influence whether they enter a marriage or civil partnership.

• Objection to the widespread unavailability of marriage for same sex couples
  One argument presented was that civil partnership would offer an alternative for mixed sex couples who object to marriage on the grounds that it is still unavailable to same sex couples in many parts of the world.

• Civil partnerships are a reminder of inequality
  Some respondents argued that civil partnerships are now an unnecessary reminder of the exclusion from marriage that same sex couples faced in the past.

• The UK Government’s announcement of intention to extend civil partnerships to mixed sex couples
  A number of respondents noted that, in light of the UK Government’s decision to extend civil partnership to mixed sex couples, some in Scotland may travel south of the border to have a mixed sex civil partnership.

• Changing marriages to civil partnerships
  Some respondents stated that they would have preferred to enter into a civil partnership rather than marry had the choice been available, raising the question of whether marriages should be capable of being changed into mixed sex civil partnerships.  

• Death benefits in pensions
  It was noted that, depending on the exact decisions in relation to pensions, the introduction of mixed sex civil partnership may open up the possibility of some civil partners being entitled to higher death benefits in pensions than spouses. This could mean that it would be more beneficial for some in mixed sex marriages to be in civil partnerships instead.

• Equality Act 2010 – exemptions
  The Equality Network stated: “… we consider that it may be necessary to extend the religious and belief body exemption in the Equality Act. This could be needed where a religious body did not support same-sex marriage, but decided to register civil partnerships for same-sex couples instead. The body might consider, consistent with its doctrines, that it was not appropriate to register mixed-sex civil partnerships (but only to offer mixed-sex marriage). We do not think such a body should fall foul of the Equality Act by declining to register civil partnerships for mixed-sex couples.”

• Civil partnerships for trans people without Gender Recognition Certificates
  Further to the point that introducing mixed sex civil partnership would allow a trans person seeking gender recognition to stay in their civil partnership, a consultee also noted that it would allow trans people who wish to enter into a civil partnership with a same sex partner to do so without a Gender Recognition Certificate.