Future of civil partnership: consultation

Annex A: Civil partnership and marriage in Scotland

Background

1. Key legislation on marriage in Scotland is the Marriage (Scotland) Act 1977, as amended. Marriage has been available to opposite sex couples in Scotland for centuries; for same sex couples, it became available on 16 December 2014. Marriages [26] are created through a marriage ceremony.

2. The Civil Partnership Act 2004 extends across the UK and makes provision about the formation and status of a civil partnership. It took effect from 5 December 2005. Civil partnerships are created by registration.

Eligibility

3. The 1977 Act, as amended, and the 2004 Act lay down criteria for entering into a marriage or civil partnership.

• Neither party may already be party to a civil partnership or marriage (although it is possible to change a civil partnership to a marriage)
• Both parties must be over 16.
• The couple must not be too closely related (this is known as "the forbidden degrees of relationship").
• The couple must be capable of understanding the nature of civil partnership or marriage, and be able to validly consent to it being created.

4. In relation to civil partnership, both parties must be of the same sex.

Types of ceremony

5. Marriage and civil partnership ceremonies can be religious or belief [27] , or civil.

Creation

6. A religious or belief marriage ceremony [28] can be held anywhere but must be solemnised by a minister, clergyman, pastor, priest or other person approved to do so under the 1977 Act. Civil marriage ceremonies can take place at a registration office or at a place (other than religious premises) that has been agreed by the couple and the registration authority.

7. Regardless of the type of ceremony, a marriage notice must be submitted to the registrar for the district where the marriage is to take place, and a fee paid. The registrar will produce a Marriage Schedule, without which the marriage cannot take place.

8. Similarly, civil partnerships can be registered [29] by a registrar or by an authorised religious or belief celebrant.

9. As with marriage, notice must be given to the registrar in the district where the civil partnership is to take place, and a registration fee must be paid. A civil partnership schedule will be produced, without which the civil partnership cannot proceed.

Rights and responsibilities

10. Generally, couples in marriages or civil partnerships have the same rights and responsibilities (regardless of the type of ceremony), including:

• Succession: a surviving spouse or civil partner is entitled to prior and legal rights [30] .
• Recognition for immigration and nationality purposes (reserved to the UK Government).
• A right to live in the family home, regardless of who bought it, has a mortgage, or whose name is on a tenancy agreement.
• The right to obtain civil protection orders to protect against domestic abuse (for example, an order prohibiting someone from approaching a certain person or place).
• Obligations of aliment (to financially maintain each other and any children).
• The right to a financial settlement on divorce or dissolution based on the principles set out in the Family Law (Scotland) Act 1985.
• Eligibility for the Marriage Allowance [31] in taxation (also reserved to the UK Government).

Rights and responsibilities: differences

11. The main difference arises in pensions, where survivor benefits in some pension schemes may be lower for some surviving civil partners when compared with some surviving spouses. This is because, in some cases, not all of the service in the pension scheme will be taken into account. This is also the case for same sex surviving spouses, in relation to whom survivor benefits are generally aligned with civil partners. This is largely a reserved matter for the UK Government, although the Scottish Government has devolved responsibilities for some public sector pension schemes.

Ending a marriage or civil partnership

12. To end a marriage, a divorce can be obtained on two possible grounds: irretrievable breakdown or if one party obtains an interim gender recognition certificate. In either case, a court application is required, although a simplified process can be followed where certain criteria are met.

13. As with divorce, there are two possible grounds for dissolution of a civil partnership: irretrievable breakdown, or if one party to the civil partnership obtains a gender recognition certificate. Again, in either case, an application to the court is required, and where certain criteria are met, a simplified application process may be followed.

14. While irretrievable breakdown is grounds for both divorce and dissolution, there is a difference in the way that this can be established. Adultery (defined under common law as heterosexual intercourse outwith marriage) can be used to establish the irretrievable breakdown of a marriage but cannot be used to establish the irretrievable breakdown of a civil partnership.

15. In Scotland, a marriage is voidable ( i.e. a court action may be raised to challenge and end the marriage) if one of the parties is at the time of the marriage permanently and incurably impotent in relation to the other spouse. This only applies to opposite sex marriages: it does not apply to same sex marriages or civil partnerships. However, the Scottish Government understands that this rule is very rarely used.

Change to marriage

16. A civil partnership will also come to an end if the couple decides that they wish to change to marriage. This change can be achieved in one of two ways: an administrative route involving an application to the local registrar, or by having a civil or religious or belief ceremony. Figures [32] on civil partnerships that have changed to marriage are below.

Year	Civil partnerships changed to marriage
	Male	Female	Total
2014 [33]	170	189	359
2015	380	556	936
2016	76	97	173
2017	61	66	127
Total	687	908	1,595

17. In total, as of June 2018, of the 5,605 civil partnerships registered since introduction in 2005, 1,561 (27.8%) had been changed to marriage.

18. Since 31 October 2015, it has also been possible for couples in qualifying equivalents to civil partnership from other jurisdictions to change their relationship to a marriage by having a marriage ceremony. To June 2018, 34 civil partnerships registered outwith Scotland have changed to marriage in this way.

19. It is not possible to change a marriage to a civil partnership.

Recognition of overseas marriage and civil partnerships

20. Section 38 of the Family Law (Scotland) Act 2006 makes provision on the validity of marriages outwith Scotland. In general terms, the question of whether a marriage is formally valid is determined by the law of the place where the marriage was celebrated.

21. The 2004 Act makes provision on same sex overseas relationships other than marriage being treated as civil partnerships in Scotland. In order to be treated as a civil partnership, the overseas relationship must be:

• Either a specified relationship or a relationship which meets general conditions.
• Registered by a responsible authority outside the United Kingdom.
• Formed by two people of the same sex.
• Formed by two people who are neither married nor already in a civil partnership.

22. In respect of the first requirement, under the 2004 Act, "a specified relationship" is a relationship listed in Schedule 20 to that Act. It is also possible for a relationship from outside the UK to be treated as a civil partnership in Scotland if general conditions are met. These provide that, according to the relevant law ( i.e. the law of the country or territory where the relationship is registered):

• The relationship may not be entered into if either of the parties is already a party to a relationship of that kind or is lawfully married.
• The relationship is of indeterminate duration.
• The relationship is not one of marriage.
• The effect of entering into it is that the parties are treated as a couple either generally or for specified purposes but are not treated as married.

Marriage and civil partnership statistics

23. National Records of Scotland have produced figures on the number of civil partnerships and marriages entered into each year in Scotland, as below [34] :

Year	Opposite sex marriage	Same sex marriages [35]			Civil partnerships
		Male	Female	Total	Male	Female	Total
2005	30,881	−	−	−	53	31	84
2006	29,898	−	−	−	578	469	1,047 [36]
2007	29,866	−	−	−	340	348	688
2008	28,903	−	−	−	245	280	525
2009	27,524	−	−	−	219	279	498
2010	28,480	−	−	−	197	268	465
2011	29,135	−	−	−	229	325	554
2012	30,534	−	−	−	257	317	574
2013	27,547	−	−	−	217	313	530
2014 [37]	28,702	173	194	367	193	243	436
2015	28,020	696	975	1,671	33	31	64
2016	28,231	391	607	998	42	28	70
2017	27,458	407	575	982	41	29	70

24. These figures show that in 2017, per 1000 inhabitants, there were 5 opposite sex marriages, 0.2 same sex marriages, and 0.01 civil partnerships. [38]