The future of civil partnership: analysis of consultation responses

Option of no new civil partnerships from a date in the future 

25. Under the option of no new civil partnerships in Scotland from a date in the future, mixed sex and same sex couples would continue to be able to marry if they wished. However, same sex couples would no longer have the option of forming a civil partnership, after a given date. Civil partnerships created prior to the cut-off date would continue to be recognised and civil partners would continue to enjoy the same responsibilities and rights that were in place prior to the cut-off date. There would be no obligation to change existing civil partnerships to marriage, or to dissolve them.

26. Scottish statistics^[3] suggests that demand for same sex marriage is higher than demand for same sex civil partnership.

27. There would not be significant costs or savings to this option.

Cross-border recognition

28. In the context of the option of ending the registration of civil partnerships in Scotland, one question that arises is how to recognise same sex civil partnerships from elsewhere. The Scottish Government’s intention is that civil partnerships formed in other parts of the UK would continue to be recognised in Scotland. In addition, same sex relationships other than marriages registered overseas would continue to be recognised in Scotland, provided certain criteria are met.

29. There are two options for recognition of same sex civil partnerships registered elsewhere in the UK and overseas: recognition as civil partnerships or as marriages.

30. The consultation paper set out the following arguments for and against each option:

Recognition as civil partnership

31. Arguments for:

• The most accurate reflection of the nature of the relationship
• Aligned to the continued recognition of existing Scottish civil partnerships

32. Arguments against:

• An open-ended commitment to recognition
• Results in long-term recognition of legacy relationships

Recognition as marriage

33. Arguments for:

• Comparatively straightforward
• Reflects that same sex marriage is a permanent feature of Scottish life

34. Arguments against:

• Inconsistent with the nature of the relationship as created

35. The consultation asked two questions specifically about the options for recognition of same sex civil partnerships registered elsewhere:

Question 1. Are you aware of any other arguments for recognising civil partnerships from elsewhere in the UK and overseas as civil partnerships after the cut-off date?

Yes ☐

No ☐

If yes, please outline these arguments.

36. Many responses reiterated the argument that civil partnerships from elsewhere in the UK and overseas should be recognised as civil partnerships in Scotland since this would be the most accurate reflection of the nature of the relationship that was entered into. Some respondents also suggested that not to recognise the partnership in the terms that it was entered into would be an infringement of these people’s human rights.

37. As an alternative to deciding that all civil partnerships from outside Scotland would be recognised in the same way (either as civil partnerships or as marriages),  some respondents suggested that couples in a civil partnership from elsewhere be able to choose whether to have their relationship recognised as either a civil partnership or a marriage.

Question 2. Are you aware of any other arguments for recognising civil partnerships from elsewhere in the UK and overseas as marriages after the cutoff date?

Yes ☐

No ☐

If yes, please outline these arguments.

38. The following arguments in support of recognising civil partnerships from elsewhere in the UK and overseas as civil partnerships after the cut-off date were also presented:

• Scotland as a progressive nation
  A number of responses argued that not recognising civil partnerships from elsewhere as civil partnerships in Scotland would contradict Scotland’s commitment to equality and its reputation and identity as a progressive, inclusive country.

• Avoid deterring people from coming to Scotland
  Some respondents suggested that not recognising civil partnerships as such may deter some people from coming to Scotland, whether to visit or to live here.

• An alternative in the event of closure of civil partnerships in Scotland
  It was also suggested that recognising civil partnerships from elsewhere as civil partnerships rather than as marriages would provide an alternative option in the event that civil partnerships were closed from a date in the future in Scotland. This would allow people who wanted a civil partnership the option of entering into one elsewhere in the UK or abroad, and still have their civil partnership recognised in Scotland.

• Consistency with treatment of polygamous unions
  One response suggested that while polygamous unions cannot be created in Scotland, those created abroad are given ‘substantial legal effects’, and consistency should therefore be applied by recognising civil partnerships created abroad.

• International consistency
  In support of recognising civil partnerships from elsewhere in the UK and overseas as civil partnerships, the Equality Network noted that they are ‘not aware of any other jurisdiction which treats civil partnerships registered outwith the jurisdiction as if they were marriages.’

The case for no new civil partnerships from a date in the future 

39. The consultation paper set out the following arguments for and against the option of no new civil partnerships from a date in the future:

40. Arguments for this option:

• The introduction of same sex marriage has rendered civil partnerships obsolete.
• Civil partnership was introduced at a time when same sex marriage was not seen as realistic. Society and the law have moved on, and there is no longer a need for civil partnerships, the existence of which currently serves to promote out-dated perceptions about the type of civil union that same sex couples should be able to form.
• There is a misperception that the existence of both marriage and civil partnership provides a choice, whereas in fact the difference lies only in the name: the rights provided by both are virtually the same.
• Ending the registration of civil partnership would reduce complexity: only a single option for couples would exist in the future.
• Ending the registration of civil partnership could make international recognition issues less complex. Marriage is typically recognised in other jurisdictions whereas civil partnership systems (if they exist) can differ considerably from country to country.
• It could drive a change in perceptions. Some believe that marriage is an old fashioned or patriarchal institution. The repeal of civil partnership could remove an unhelpful contrast and recast marriage as modern and inclusive.
• There is limited demand for same and mixed sex civil partnership.

41. Arguments against this option:

• Ending the registration of civil partnership would remove an option that is currently available to same sex couples.
• Civil partnership allows same sex couples who believe marriage to be a union meant for mixed sex couples to have their relationship formally and legally recognised, and to obtain responsibilities and rights.
• The legacy status of civil partnerships if new registrations are ended could make it unattractive, create insecurity and inadvertently pressurise couples to change their relationship to marriage.
• The passage of time may create a lack of understanding about the status of legacy civil partnerships. This could cause problems for recognition and understanding of rights.
• The existence of legacy relationships is likely to create complexity in administrative arrangements that relate to marital or civil partnered status and that require disclosure of information about that status. For example, simplification of prescribed forms may not be possible where both marriage and civil partnership are available.
• Notwithstanding the introduction of same sex marriage in Scotland, some people of faith may perceive marriage to be a union for mixed sex couples. These people may prefer to retain the system of civil partnerships.
• LGBTI people who have experienced discrimination from religious bodies, and who perceive marriage as primarily religious in nature, may not wish to enter into a union perceived as having close connections with religion and those religious bodies.
• If civil partnership continues to be available in England and Wales that could potentially result in civil partnership registration being exported across the border. [Very shortly after the consultation issued, the UK Government announced its intention to introduce mixed sex civil partnership].

42. The consultation asked two questions specifically about the options of ending the registration of civil partnerships:

Question 3. Are you aware of any other arguments for ending the registration of civil partnership?

Yes ☐

No ☐

If yes, please outline these arguments.

Question 4. Are you aware of any other arguments against ending the registration of civil partnership?

Yes ☐

No ☐

If yes, please outline these arguments.

43. Respondents who broadly supported the closure option included some religious organisations, which framed the extension option as a threat to marriage. Other respondents who supported the closure option typically stated that civil partnership is no longer needed now that marriage is open to all. Respondents highlighted the similarity between marriage and civil partnership (and the resulting absence of a need for both systems) and the inefficiency of two similar systems running in parallel.

44. The following points were also made:

• Civil partnerships are a reminder of inequality
  Some respondents argued that civil partnerships were an unsatisfactory compromise used to suppress the campaign for marriage equality at a time when same sex couples were not allowed to marry, and that they are now an unnecessary reminder of this past inequality.

• Challenges in light of the UK Government’s announcement of intention to extend civil partnerships to mixed sex couples
  After the Scottish Government’s consultation was published, the UK Government announced that civil partnership will be extended to mixed sex couples in England and Wales. A number of respondents to this consultation noted that one argument against the closure of civil partnerships is that couples may consequently travel south of the border (or overseas) to have a mixed sex civil partnership. The Equality and Human Rights Commission suggested that same sex couples who cannot travel outside Scotland would be at a disadvantage and that the Scottish Government may wish to conduct a Fairer Scotland Duty Assessment.
  A number of respondents to the Scottish consultation mentioned the UK Government decision as added impetus for Scotland to also introduce mixed sex civil partnerships, and suggested that not doing so would contradict Scotland’s reputation as an open, forward-thinking country.

• Review of legally recognised family relationships altogether
  One perspective presented was that civil partnerships should be closed from a date in the future, but only in the context of a wider review of regulated family relationships. It was proposed that all marriages recognised by the state should be civil (as happens in some Continental jurisdictions), with couples of faith choosing to having a private religious or belief ceremony if they so wish.
  Additional suggestions included for all divorces to be no fault and for adultery to be removed from the law on divorce, and for consideration of whether people sharing a life in some way, albeit not in a physically intimate relationship (such as sisters living together) should be able to form some sort of legally recognised partnership. However, one respondent concluded that, ‘In the absence of more fundamental reform of marriage and divorce, the fairest and most egalitarian solution is to continue to offer both [marriage and civil partnerships].’