Future of civil partnership: consultation

Chapter 3: No new civil partnerships from a date in the future

Introduction

3.01 This option does not involve civil partnerships in Scotland being abolished. Rather, from a given date in the future ("the cut-off date"), no more new civil partnerships in Scotland could be entered into. Under the 2004 Act, the minimum notice period for civil partnership is a clear 28 days ^[3] .

3.02 However, civil partnerships (and marriages) may be planned for some time before the actual ceremony takes place. Therefore, there may need to be a long lead-in period before the cut-off date comes into effect. As a result, the cut-off date might be, for example, two years from the date that a Bill is granted Royal Assent or two years from when a remedial Order is made.

3.03 After the cut-off date, opposite 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.

3.04 Civil partnerships created prior to the cut-off date would continue to be recognised. 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. However, dissolution would of course still be an option if the parties wished to end their civil partnership.

3.05 See Annex C for examples of jurisdictions where civil partnership has been closed to new relationships.

Demand in Scotland for same sex civil partnerships

3.06 This option would prevent new civil partnerships from being created for same sex couples from the cut-off date. It is therefore appropriate to consider current levels of demand for same sex civil partnership and the probable impact of removal of the ability to form a civil partnership.

3.07 Information on the number of civil partnerships entered into in Scotland is at Annex A. This includes statistics published by NRS ^[4] .

3.08 In brief, there were usually around 500 civil partnerships registered in Scotland per year before the introduction of same sex marriage in December 2014 ^[5] . Now that same sex marriage has been introduced, numbers have fallen and 70 civil partnerships were registered in each of 2016 and 2017.

3.09 Since the introduction of same sex marriage, more men than women register civil partnerships, whereas more women than men enter into same sex marriage. In 2017, 407 male couples entered into a same sex marriage in Scotland (61 of these couples were changing a civil partnership into marriage) and 575 female couples (66 of these couples were changing a civil partnership into marriage). ^[6]

3.10 NRS have also carried out an analysis of the total number of civil partners registered in Scotland that have changed their relationship to marriage. Approximately 28% ^[7] have done so.

3.11 In summary, the Scottish evidence suggests that:

• demand for same sex civil partnership has decreased, is low but there continues to be some demand; and
• demand for same sex marriage is higher than demand for same sex civil partnership.

3.12 These conclusions are consistent with those that can be drawn from evidence from other countries which suggests that, where civil partnership and marriage are both available to same sex couples, most will opt for marriage. Statistics are available at Annex D.

3.13 There is also evidence from other countries which suggests that more men than women enter civil partnerships and more women than men enter into same sex marriage. For example, an Office for National Statistics Statistical Bulletin on marriages in England and Wales in 2015 noted that a total of 6,493 marriages were formed between same sex couples in 2015. Of these, 44% (2,860) were between male couples and 56% (3,633) were between female couples. By contrast, in 2016 68% of same sex couples forming a civil partnership in England and Wales were male ^[8] .

3.14 Overall, the available evidence suggests that:

• civil partners are often content to remain in their civil partnership, which recognises their relationship and offers very similar rights and responsibilities to marriage;
• if a choice is available when a registered relationship is first entered into, most couples choose marriage rather than civil partnership, although some choose civil partnership.

Cross-border recognition

3.15 One of the questions that arises in the context of the option of ending the registration of civil partnerships in Scotland 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. This would apply whether the civil partnership had been formed before or after the cut-off date in Scotland.

3.16 In addition, same sex relationships other than marriages registered overseas would continue to be recognised in Scotland ^[9] , provided certain criteria are met (see sections 212 to 218 of the 2004 Act). Again, this would apply to these relationships whether formed before or after the cut-off date.

3.17 There are two options for recognition of same sex civil partnerships registered elsewhere in the UK and overseas: they could be recognised as civil partnerships or as marriages. There are arguments for and against each option, as set out below.

Recognition as civil partnership

Arguments for

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

Arguments against

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

Recognition as marriage

Arguments for

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

Arguments against

• Inconsistent with the nature of the relationship as created

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.

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

Yes ☐
No ☐

If yes, please outline these arguments.

Gender recognition

3.18 Currently, a person in a same sex civil partnership who is seeking gender recognition is required to end that civil partnership ^[10] (either by changing it to marriage or by dissolving it) as there is no recognition in Scotland of opposite sex civil partnership. That would remain the case under this option.

Legislation required

3.19. Even if this option is followed, civil partnership will continue in Scots law for the foreseeable future. Existing civil partnerships will remain and so there will be a continuing need for provisions on rights and responsibilities, and on dissolution.

3.20 Therefore, the Scottish Government considers that the legislation needed to enact this option would repeal:

• Chapter 2 of Part 3 of the 2004 Act on registration of civil partnerships in Scotland;
• Associated secondary legislation (for example, the Scottish Statutory Instruments ( SSIs) that contain prescribed forms for registration of civil partnerships).

3.21 In practical terms, legislation to provide that no new civil partnerships could be entered into from a date in the future can be taken forward by primary legislation (a Bill in the Scottish Parliament). It may also be possible for the necessary changes to be made by a remedial order ^[11] under the Convention Rights (Compliance) (Scotland) Act 2001. Such an order can only be made if the Scottish Ministers are of the opinion that there are compelling reasons to do so as distinct from taking any other action. Another option could potentially be co-operation with the UK Government on a legislative solution to the matter. This would involve a legislative consent motion ^[12] . Following the consultation the Scottish Government intends to take a swift decision as to the appropriate legislative vehicle for making the necessary changes.

3.22 Changes would also be needed to guidance published for citizens on the registration of marriages and civil partnerships.

3.23 The Scottish Government would also need to discuss with the United Kingdom Government what changes would be needed to sections 210 and 211 of the 2004 Act and associated secondary legislation.

3.24 Sections 210 and 211 make provision on the registration of civil partnerships by UK consulates and UK armed forces when certain criteria are met. Changes may be needed to these provisions to lay down that a couple who identify with Scotland as the relevant part of the UK could no longer register a civil partnership through a UK consulate or through the UK armed forces.

Costs and savings

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

3.26 Income to the public purse from the payment of registration fees to local authorities is unlikely to be adversely affected ^[13] . There are only 70 civil partnerships registered a year and so the amount raised is not significant. In addition, of course, the removal of registration of civil partnership would reduce to some extent the workloads of those who are currently required to carry this out. Some couples who may have opted for a civil partnership may choose to marry if civil partnership ceases to be available.

3.27 In time, there could be modest savings as some prescribed forms would be abolished. The Government considers that total savings from this option would be unlikely to exceed £100,000 in total.

Arguments for and against

3.28 In the 2015 review of civil partnership, the Scottish Government set out arguments for and against the option of ending the registration of civil partnerships. Respondents were also asked for their views. The comments from both Government and respondents can now be reviewed in light of the need to consider whether ending the registration of civil partnership would be an appropriate response to the current requirement to amend civil partnership law. Arguments for and against are set out below. They are set out to aid discussion: the Scottish Government does not necessarily agree with the various arguments put forward.

Arguments for ending the registration of new civil partnerships

• 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 opposite sex civil partnership

Arguments against ending the registration of new civil partnerships

• 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 opposite 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 opposite 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.

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.