Future of civil partnership: consultation

Chapter 2: Introduction

Civil partnership in Scotland

2.01 The Civil Partnership Act 2004 ("the 2004 Act"), which extends across the United Kingdom, came into force in December 2005. The 2004 Act makes provision so that same sex couples can form a civil partnership through registration, and enjoy similar rights and responsibilities to that of a married couple.

2.02 In late 2015, the Scottish Government reviewed the law of civil partnership and concluded that further evidence was required before determining next steps ^[2] . Annex A to this consultation provides more detail on civil partnership in Scotland.

Marriage in Scotland

2.03 The law of marriage has developed over many centuries. The current position is set out in multiple pieces of legislation, but the key statute is the Marriage (Scotland) Act 1977 ("the 1977 Act"). This sets out matters such as the minimum age for marriage and who can solemnise marriages. Annex A to this consultation contains more detail on marriage in Scotland.

The Marriage and Civil Partnership (Scotland) Act 2014

2.04 The Marriage and Civil Partnership (Scotland) Act 2014 ("the 2014 Act") introduced same sex marriage and the religious and belief registration of civil partnership, as well as making other changes to marriage and civil partnership law. It also amended the Gender Recognition Act 2004 so that, in particular, a person seeking gender recognition does not have to divorce.

Cohabitation

2.05 Cohabitants (both opposite sex and same sex) already have some rights in Scots law. The Family Law (Scotland) Act 2006 extended these rights, in particular with regard to financial provision when the cohabitation ends. The 2006 Act also established presumptions about equal shares in household goods and money. Annex B provides further information about cohabitation in Scotland. This consultation does not discuss any changes to the rights of cohabitants in Scotland.

Devolved/reserved

2.06 Matters relating to civil partnership, marriage and cohabitation are devolved. Therefore, the Scottish Parliament can make provision on who can marry or enter a civil partnership, the process for registering a civil partnership or marriage, and the rules on ending a marriage or civil partnership. The Scottish Parliament can also make provision on rights and responsibilities of spouses, civil partners and cohabitants in devolved areas (eg on financial provision when the relationship comes to an end).

2.07. However, some rights and responsibilities (eg most issues in relation to pensions and benefits) are reserved matters for the United Kingdom Parliament.

The Supreme Court case

2.08 In this case, the UK Supreme Court considered whether the inability of an opposite sex couple in England and Wales to form a civil partnership under the 2004 Act breached their rights under Article 14 (prohibition on discrimination) and Article 8 (right to a private life) of the European Convention on Human Rights ( ECHR).

2.09 The Supreme Court made a declaration that provisions of the 2004 Act (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with Article 14 of the ECHR taken in conjunction with Article 8.

The implications of the Supreme Court decision for Scotland

2.10 The Scotland Act 1998 places an obligation on the Scottish Ministers not to act in a way that is in contravention of ECHR rights. Given that matters relating to civil partnership are devolved and given that the facts and circumstances relating to civil partnership are very similar in Scotland to England and Wales, the Scottish Ministers have concluded that legislation is needed to deal with the incompatibility identified by the Supreme Court.

2.11 Therefore, this consultation outlines two options: make provision laying down that no new civil partnerships could be entered into in Scotland from a date in the future or the introduction of opposite sex civil partnership.