Future of civil partnership: consultation

Chapter 4: The extension option

Civil partnership to be extended to opposite sex couples

4.01 This option would result in civil partnership being made available to opposite sex couples.

4.02 The Scottish Government considers that opposite sex civil partnerships would be formed and dissolved in the same way as same sex civil partnerships and that the rights and responsibilities of opposite sex civil partners would generally be the same as for same sex civil partners.

4.03 The Scottish Government considers that eligibility criteria for entering an opposite sex civil partnership would reflect the criteria for entering a same sex civil partnership. In turn, these reflect the criteria for marriage. Therefore:

• The couple could not be related to each other in a way which would prevent them from entering a civil partnership. (Both marriage and civil partnership legislation make provision known as the "forbidden degrees" with people related to a "forbidden degree" not able to marry each other or enter a civil partnership with each other.)
• Both parties must be at least 16.
• Neither party must be married or already in a civil partnership.
• Both parties must be capable of fully understanding the nature of civil partnership and validly consenting to its formation.

4.04 The Scottish Government's general intention for opposite sex civil partnership to be governed by the same rules that apply to same sex civil partnership would extend to the following situations:

• Couples in an opposite sex civil partnership registered in Scotland would be able to change their relationship to marriage through an administrative route or through having a marriage ceremony; and
• Couples in a relationship registered in another jurisdiction which is recognised as an opposite sex civil partnership in Scotland would be able to change their relationship to marriage in Scotland through a marriage ceremony.

4.05 In some cases, the UK consular service and the UK armed forces make provision so that couples may marry or enter a civil partnership overseas through the consular service or through the armed forces. If opposite sex civil partnership was introduced the Scottish Government would need to discuss with the UK Government whether opposite sex consular and armed forces civil partnerships should be available in certain circumstances.

Demand in Scotland for opposite sex civil partnerships

4.06 There is little hard evidence on the demand for opposite sex civil partnerships in Scotland.

4.07 Some respondents to the 2015 consultation noted that they wished to enter an opposite sex civil partnership ^[14] .

4.08 The Scottish Government's view is that demand for opposite sex civil partnership in Scotland is likely to be low. The reason for that is examples from other countries suggest that when opposite sex marriage and opposite sex civil partnership is available and the two types of unions offer similar rights and responsibilities, as would be the case in Scotland, most couples opt for marriage. For example, in New Zealand, 96 civil unions and 23,730 marriages ^[15] were registered in 2017. Generally, the number of marriages there is increasing year-on-year as the number of civil partnerships drops.

4.09 In the Netherlands both marriages and registered partnerships are open to opposite sex and same sex marriages. In 2017 in the Netherlands, there were 64,402 marriages and 17,866 registered partnerships ^[16] . Therefore, of the 82,268 registered relationships in the Netherlands in 2017, 78.3% were marriages and 21.7% were registered partnerships. In Scotland in 2017, there were 28,440 marriages ^[17] and 70 (same sex) civil partnerships, giving a total of 28,510 registered relationships.

4.10 If, as in the Netherlands, 78.3% of registered relationships in Scotland were marriages and 21.7% were civil partnerships then, using the current figure of 28,510:

• 22,323 registered relationships would be marriage.
• 6,187 registered relationships would be civil partnership.

4.11. However, the Scottish Government does not consider there would be that number of civil partnerships in Scotland as:

• Civil partnerships in Scotland and registered partnerships in the Netherlands may not be directly comparable given in the Netherlands that if both parties have a registered partnership, are in agreement and do not have children, they can terminate the partnership out of court. ^[18]
• As indicated above, the number of (same sex) civil partnerships in Scotland has fallen markedly since the introduction of same sex marriage ^[19] .

4.12 See Annex D for details of extension models from other jurisdictions.

Cross-border recognition

4.13 If opposite sex civil partnership should be introduced in Scotland, the Scottish Government would propose to recognise equivalent relationships registered in other jurisdictions, in the same way as we recognise same sex civil partnerships registered in other countries. However, opposite sex civil partnerships registered in other countries would not be recognised here if one or both of the parties is in a relationship (such as a marriage or a same sex civil partnership) which is already recognised here.

4.14 The Scottish Government would encourage other countries to recognise opposite sex civil partnerships registered in Scotland. However, it would be for other countries to determine whether or not such recognition would be granted.

4.15 If opposite sex civil partnership should be introduced in Scotland, the Scottish Government would discuss with the United Kingdom Government and the Northern Ireland Administration arrangements for recognising opposite sex civil partnerships registered in Scotland elsewhere in the United Kingdom. It would be for the UK Government (for England and Wales) and the Northern Ireland Administration (for Northern Ireland) to decide what recognition should be granted.

Gender recognition

4.16 Currently, a person in a same sex civil partnership who is seeking gender recognition needs to end that civil partnership ^[20] (either by changing it to marriage or by dissolving it) as there is no recognition in Scotland of opposite sex civil partnership. If opposite sex civil partnership should be introduced, a couple in a civil partnership in which one civil partner is seeking gender recognition could stay in their civil partnership.

Pensions

4.17 Most issues in relation to pensions are reserved but the Scottish Government has devolved responsibility for some public sector pensions (the main ones are police; fire; local government; teachers and the NHS).

4.18 Survivor benefits in devolved public sector schemes for opposite sex civil partners would be aligned with the rules for survivor benefits for same sex civil partners and same sex spouses in place at the time of introduction of opposite sex civil partnerships.

Family law

4.19 There are a number of provisions in family law in relation to married men which the Scottish Government would plan to replicate for men in opposite sex civil partnerships.

4.20 Section 5(1)(a) of the Law Reform (Parent and Child) (Scotland) Act 1986 provides that the husband of a woman is presumed to be the father of her child. The Scottish Government has carried out a consultation on family law ^[21] and has sought views on whether the presumption should remain. If, following the family law consultation, the presumption remains, the Scottish Government would propose to extend it so that a man in a civil partnership with a mother would be presumed to be the father of her child.

4.21 Under section 3 of the Children (Scotland) Act 1995, a man married to the mother of a child receives Parental Responsibilities and Rights ( PRRs). However, the consultation on family law noted above has also sought views on whether all fathers should automatically be granted PRRs. Should
section 3 in the 1995 Act remain unchanged, the Scottish Government would propose that a male civil partner of a woman would have PRRs in the same way as a married man. If section 3 should be amended so that all fathers automatically have PRRs, it would not be necessary to make provision for PRRs for opposite sex civil partnerships: all fathers would have them regardless of their marital or civil partnership status.

4.22 The Human Fertilisation and Embryology Act 2008, which is reserved, makes provision on assisted conception. Section 35 provides that the man married to a woman at the time of treatment is to be treated as the father unless it can be shown he did not consent to the treatment. Section 42 provides that a woman married or a in a civil partnership with a woman at the time of treatment is to be treated as a parent unless it can be shown she did not consent to the treatment.

4.23 As explained above, in terms of section 3 of the 1995 Act, a man married to the mother of a child receives Parental Responsibilities and Rights ( PRRs). Similarly, a woman treated as a parent under section 42 of the 2008 Act has PRRs.

4.24 Therefore, the Scottish Government would propose that a male civil partner of a woman at the time of treatment would be treated as the father of the child, and would have PRRs unless it can be shown he did not consent to the treatment. However, the 2008 Act is reserved and the Scottish Government would need to discuss this approach with the UK Government.

Peerages, honours and dignities

4.25 Hereditary peerages are usually inherited by children born to opposite sex parents who are married to each other. A number of courtesy titles are held by persons who are married to someone with a title. For example, the wife of a knight may use the title of lady. This is a reserved area, and it would be for the UK Government to determine the appropriate course of action if opposite sex civil partnership should be introduced.

Adultery

4.26 There are currently two grounds for dissolving a civil partnership: that the civil partnership has broken down irretrievably or that an interim Gender Recognition Certificate has been issued to either of the civil partners ^[22] .

4.27 The irretrievable breakdown of a civil partnership is taken to be established if:

• Since the date of registration of the civil partnership, the defender has at any time behaved in such a way that the pursuer cannot be expected to cohabit with the defender;
• The couple have not lived together for one year, where they both consent to the dissolution;
• The couple have not lived together for two years.

4.28 In relation to marriage (whether opposite sex or same sex), irretrievable breakdown can also be shown by adultery. Adultery is defined as opposite sex intercourse outside the marriage ^[23] .

4.29 The Scottish Government's view is that adultery should not be added to the law on the dissolution of civil partnership. Adultery has remained part of divorce law due to a number of religious bodies and people of faith being of the view that it should be a reason for ending a marriage. It does not seem to the Scottish Government that these arguments apply in relation to ending a civil partnership.

Impotence

4.30 At present, permanent incurable impotence is grounds for opposite sex marriages to be voidable. There is no such rule for same sex marriage or civil partnership. The Scottish Government's understanding is that permanent incurable impotence is rarely used to void a marriage. Given this, it appears to the Scottish Government that it would not be necessary to provide in legislation that opposite sex partnerships should be voidable on the grounds of permanent incurable impotency.

Religious and belief celebrants and opposite sex civil partnerships

4.31 When same sex marriage and the religious or belief registration of civil partnership was introduced, the UK Equality Act 2010 was amended, by way of an Order under section 104 of the Scotland Act 1998 ^[24] , to reflect that some celebrants do not wish to take part in the solemnisation of same sex marriage and the registration of civil partnerships

4.32 These exemptions from the Equality Act provisions refer, both in relation to marriage and in relation to civil partnership, to the couple being of the same sex. If civil partnership is extended to opposite sex couples, the Scottish Government has considered whether an Equality Act exemption would be needed to cover religious and belief bodies who do not wish to register opposite sex civil partnership.

4.33 The Scottish Government's view is that no provision would be needed as:

• The rationale for the existing exemptions is that some religious or belief bodies would not wish, for doctrinal reasons, to take part in ceremonies relating to same sex relationships. That remains the rationale.
• If a religious or belief body decides not to register civil partnership generally, there is no discrimination on the grounds of sexual orientation or sex as the service is not provided generally rather than not provided to a particular group in society who share a protected characteristic.

Question 5. We have explained what opposite sex civil partnership would look like. Do you have any comments on this?

Yes ☐
No ☐

If yes, please outline your comments.

Legislation required

4.34 This option is likely to require more changes than the option to stop registration of civil partnerships. As indicated above, the Scottish Government's starting position is that opposite sex civil partnership would be along the same lines as same sex civil partnership. Therefore, it is likely to be necessary to check legislative references to civil partnership to ensure that they work for opposite sex couples as well as for same sex couples. In addition, some of the points made in this Chapter of the consultation may require specific legislation.

4.35 In practical terms, legislation to allow opposite sex civil partnerships to 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 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. Following the consultation the Scottish Government intends to take a swift decision as to the appropriate legislative vehicle for making the necessary changes.

4.36 Changes would also be needed to guidance for citizens on marriage and civil partnership.

4.37 In addition, the introduction of civil partnership will affect reserved legislation and so an order under section 104 of the Scotland Act 1998 would be required ^[25] . This would need to cover key areas like pensions, benefits and recognition of opposite sex civil partnerships across the United Kingdom.

Costs and savings

4.38 Extension of civil partnership has costs and savings implications in a number of areas: registration, legal aid, pensions and social security. Key figures are set out below, and Annex E contains further information and analysis about the possible implications for these areas.

Registration costs

4.39 There would be costs to National Records for Scotland in relation to any proposed introduction of opposite sex civil partnership. These costs would relate to adjusting IT systems and the creation of new forms and extracts. We estimate these one-off costs at around £200,000 in total. This figure is based on the recent experience with same sex marriage.

4.40 There would also be training and familiarisation costs for local authorities. We estimate there would be total one-off costs of a further £200,000.

Opposite sex civil partnership – legal aid

4.41 Any proposed introduction of opposite sex civil partnership could lead to eventual costs to the legal aid budget when some opposite sex couples sought to dissolve their civil partnership.

4.42 Total costs here depend on whether there is an overall increase in the number of registered opposite sex relationships. As indicated above, we expect take up of opposite sex civil partnerships in Scotland to be low. If the total number of registered opposite sex relationships increased by 1%, the costs to the legal aid budget might be around £225,000 a year. This figure is based on current legal aid expenditure on divorce and dissolution. However, this figure may decrease based on existing demands on the legal aid funds from unmarried opposite sex couples when they separate.

Opposite sex civil partnership –pensions

4.43 Most issues in relation to pensions are reserved but the Scottish Government has devolved responsibility for some public sector pensions (the main ones are police; fire; local government; teachers and the NHS).

4.44 We have assumed that survivor benefits for opposite sex civil partners would be aligned with survivor benefits for same sex civil partners and same sex spouses. However the final position on how opposite sex civil partner survivor benefits would be treated would need to reflect the approach taken on survivor pensions at the time of any implementation.

4.45 If the total number of registered opposite sex relationships increases by 1%, it is estimated that the costs to the devolved public sector pensions could be up to £1.75 million a year. However, that level of increase is unlikely to have a material impact on scheme contribution rates which are set by quadrennial valuations. HM Treasury consent would be required to include benefits payable for opposite sex civil partners for the NHS and Teachers' scheme.

4.46 However, in practice, costs could be lower. More details are contained in Annex E.

4.47 In relation to reserved pensions, it is uncertain whether there would be any recognition of opposite sex civil partners in reserved public sector pension schemes ( e.g. the Principal Civil Service Pension Scheme) and in private sector occupational pension schemes.

4.48 The state pension is also reserved. However, the general rule is that ability of a surviving spouse or civil partner to inherit a state pension depends on the point in time he or she reaches state pension age, and when the relationship was formed. Further details are at Annex E.

Social security

4.49 At present, civil partners are treated as any other couple who are living together when assessing entitlement to means-tested benefits and tax credits. The introduction of opposite sex civil partnership would not affect this for devolved or reserved social security benefits. However, the interplay between benefits is highly complex, and detailed exploration of the various regulated schemes would be required to ensure that there would be no circumstances in which people in an opposite sex civil partnership would be unfairly disadvantaged.

The extension option: arguments for and against

4.50 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 the Scottish Government and respondents can now be reviewed in light of the need to consider if introducing opposite sex civil partnership would be an appropriate response to the current requirement to amend civil partnership law. Pros and cons are set out below. They are set out for completeness and to aid discussion: the Scottish Government does not necessarily agree with the various arguments put forward.

Arguments for the introduction of opposite sex civil partnership

• It is inherently fair and equitable for civil partnerships and marriage to be available to both opposite and same sex couples.
• Civil partnership does not include the societal expectations faced by women in the context of marriage or the wedding ceremony. Such expectations include wearing white, being given away, and the wedding celebrations being led by men.
• Limited demand is irrelevant: rather, it is crucial and necessary for the law to be fair.
• Marriage is seen by some as old fashioned, religious and patriarchal. The option to enter into a civil partnership will permit those who feel this way to make a commitment to their partner while avoiding these connotations.
• For people who have been unhappily married in the past, an opposite sex civil partnership might be perceived as an opportunity to form a union without risk of a similar experience, and without negative connotations.
• Civil partnership will be an opportunity for people who have been married in the past and are not able to remarry on religious or ethical grounds.
• Entering into a civil partnership would no longer result in couples effectively outing themselves as civil partnership is only available to same sex couples (if it is known that a couple has formed a civil partnership, it is then known that the relationship must be a same sex one).
• There would be fewer administrative burdens on transgender people who are in civil partnerships when they obtain gender recognition: they would simply be able to stay in the civil partnership.
• Cost and complexity may not be that significant.

Arguments against the introduction of opposite sex civil partnership

• Marriage is the established, long-standing arrangement through which opposite sex couples make a lifelong commitment to each other and receive certain legal protections. An alternative option is not required.
• Generally, the legal effect, benefits and implications of marriage and civil partnership are the same for civil partners and the married. There is little or no additional benefit to be gained by making civil partnerships available to opposite sex couples.
• Evidence from other countries indicates that demand in Scotland for opposite sex civil partnership would be low, with the majority of opposite sex couples preferring to marry where both options are available.
• The costs inherent to the introduction of opposite sex civil partnership do not appear to be justified in the light of likely demand for it.
• The recognition of opposite sex civil partnership elsewhere in the UK and overseas is likely to be limited. This may have adverse consequences in relation to legal presumptions that flow from marriage status in other jurisdictions. This could impact on matters such as parentage, next of kin status and succession.
• Opposite sex civil partnership is perceived by some as requiring less commitment than marriage and, in consequence, as less likely to result in long-standing, stable unions. That would be particularly detrimental to any children of these unions and, by extension, to wider society.
• It is possible that society's understanding of opposite sex civil partnership might also be limited.
• It could prompt opposite sex civil partnership tourism to Scotland, with couples left uncertain as to their status in their own countries.
• If cohabitants prefer not to marry, they already benefit from some rights in Scots law.
• Civil partnership is more attractive to people who feel that marriage is an old fashioned, religious or patriarchal institution. However, civil or belief marriage ceremonies are available at present and are widely used.
• Opposite sex civil partnership would increase complexity.
• It would increasingly undermine marriage.

Question 6. Are you aware of any other arguments for extending civil partnership to opposite sex couples?

Yes ☐
No ☐

If yes, please outline these arguments.

Question 7. Are you aware of any other arguments against extending civil partnership to opposite sex couples?

Yes ☐
No ☐

If yes, please outline these arguments.