Civil partnerships in Scotland: consultation analysis

Opposite Sex Civil Partnership

The consultation paper noted that the Scottish Government has carefully considered the possible introduction of opposite sex civil partnership, but is not persuaded that it should be introduced in Scotland. The main reasons given for this decision were:

• The Government considers that demand for opposite sex civil partnership in Scotland would be low.
• The recognition of opposite sex civil partnership elsewhere in the UK and overseas would be limited.
• Society's understanding of opposite sex civil partnership might be limited.
• If couples do not wish to marry, Scots law provides some rights already for cohabitants.
• Some of the arguments for opposite sex civil partnership seem to be based on perceptions that, for example, marriage is a religious or patriarchal institution. However, it is perfectly possible to have a civil (or belief) marriage ceremony, if the couple so wish. And it is for the couple themselves to determine the nature of their own marriage.
• Opposite sex civil partnership would increase complexity.
• There would be disproportionate costs to opposite sex civil partnership.

Question 5: Do you have any comments on the Government's view that there are insufficient reasons for introducing opposite sex civil partnership in Scotland? If yes, please outline these comments.

A total of 360 respondents commented at this question ^[8] , with some of these comments referring back to points made at other questions. As noted earlier, all comments focusing primarily on opposite sex civil partnerships have been included within the analysis at this question.

As at other questions, some respondents commented on the Scottish Government's reasons for not intending to introduce opposite sex civil partnership. Some respondents also raised additional issues. Most but not all of those commenting made their support for, or opposition to, the introduction of opposite sex civil partnership clear. Those who did not express a clear view tended to comment on the complexity of the issue and/or consider the various arguments for and against.

Opposition to opposite sex civil partnership

The concern raised most frequently by those who agreed with the Government's overall position ^[9] was that the introduction of opposite sex civil partnership would undermine the institution of marriage. Individual respondents and religious or belief bodies or groups were the type of respondent most likely to voice this concern. Under this broader concern, the most frequently raised issues were:

• Marriage is the established, long-standing arrangement through which opposite sex couples make a lifelong commitment to each other and receive certain legal protections. There is no need for an alternative. A number of those making this point noted their belief that marriage is a divinely instituted union between a man and a woman, and that society neither can nor should choose to make alternative, primarily legal, arrangements.
• Opposite sex civil partnership would not require an equivalent level of commitment to marriage and, in consequence, would be less likely to result in long-standing, stable unions. This would be particularly detrimental to any children of these unions and, by extension, to wider society.
• There is no clear, substantive evidence of real demand for opposite sex civil partnership. Just because some people are calling for it to be available does not mean that many people would actually choose to enter into an opposite sex civil partnership rather than a marriage.
• Creating an additional set of arrangements would be difficult and/or costly and resources could be better deployed elsewhere.
• Objections to marriage based on it being an oppressive and patriarchal regime fail to understand that, if this is the case, this reflects the values or problems of society (past or present) rather than the true nature of marriage itself.
• Scots law already provides some protections for couples who are not and do not wish to be married.

Whilst the majority of those opposing the introduction of opposite sex civil partnership focused on defending the institution of opposite sex marriage, a small number of respondents opposed opposite sex civil partnership for a different reason. These respondents consider the introduction of same sex marriage has removed the need for any form of civil partnership. However, those taking this view sometimes noted that if same sex civil partnership is to be continued then opposite sex civil partnership should be introduced. To this extent their position mirrored that of most of those supporting the introduction of opposite sex civil partnership (discussed further below).

Concerns around implementation

A representative body for professionals highlighted a number of issues of law that would arise with the introduction of opposite sex civil partnerships, meaning that the potential change would need to be looked at within a much broader context than simply considering the impact on the couples themselves.

More specifically they highlighted three particular areas to consider in an international context which could be complicated by the introduction of opposite sex civil partnership in Scotland. These were succession regulations, matrimonial property/partnership property regimes and the impact on jurisdiction in relation to dissolution, including dissolution of marriage and civil partnership.

They went on to conclude that ongoing developments in these three particular areas of international law, along with the relatively recent implementation of the Marriage and Civil Partnership (Scotland) Act 2014, suggest that now is not the most appropriate point in time to be seeking to make changes. This was applied not only to the introduction of opposite sex civil partnerships but also to any other proposed changes, and was echoed by some other respondents.

Support for opposite sex civil partnership

Individual respondents and third sector or equality organisations were the type of respondent most likely to take issue with the Government's position and to put forward arguments in support of introducing opposite sex civil partnerships in Scotland. Others taking this view included public bodies and religious or belief bodies or groups.

Equivalent options for all

The issue raised most frequently in support of introducing opposite sex civil partnership was that to do so would create equality based on all couples having the same options available to them. It was suggested that opening up of civil partnership to opposite sex couples is the only way to remove sexual orientation discrimination from the law on marriage and civil partnership, without removing the important and valued choice of civil partnership from same sex couples. The Equality and Human Rights Commission noted the importance of parity.

Some respondents suggested that the current arrangements may amount to discrimination, with particular reference made to the Equality Act 2010. There was an associated suggestion that introducing opposite sex civil partnership would help ensure the Scottish Government is meeting its obligations under national and international human rights law. It was noted that a judicial review was underway in England and Wales. ^[10]

Demand for opposite sex civil partnership

Other comments questioned the Scottish Government's assertion that demand for civil partnership may be low and included:

• Reference to a 2015 survey carried out by a third sector equality organisation, which found that 41% of its non- LGBTI respondents would consider entering into an opposite sex civil partnership. It was also noted that many thousands of people have signed a petition calling for equal rights to civil partnership.
• That the current imbalance between the number of same sex civil partnerships and marriages may be explained in part by a pent-up demand for marriage amongst couples who had held off formalising their union until marriage became an option.
• Even if correct, the argument that there may be limited demand for opposite sex partnership does not make the case for the status quo. The decision should be based on what is fair and equitable.

A number of individual respondents reported that they already wished, or could envisage wishing, to enter into an opposite sex civil partnership. Some of these respondents gave reasons for wanting to enter into a civil partnership or for preferring a civil partnership to marriage. These included:

• Wanting greater legal and financial protections than those currently offered to non-married opposite sex couples in Scotland.
• Having been married in the past and not being able to remarry on religious or ethical grounds.
• Having been in an unhappy or abusive marriage in the past and not being willing or able to risk repeating that experience.
• Considering marriage to be a patriarchal or misogynistic institution and having no interest in supporting such an institution.

Other comments included that a civil marriage ceremony is not necessarily an acceptable alternative for those who do not want a religious marriage ceremony. Another comment was that the existence of civil marriage ceremonies does not make opposite sex civil partnerships unnecessary: a marriage through a civil ceremony is different to a civil partnership. It was suggested that the fact that marriage and civil partnership have different perceived and societal status was a key argument, accepted by the Scottish Government, for opening up marriage to same sex couples. Marriage being associated with patriarchal norms and outdated notions was also referenced as a genuine concern, which should not be glossed over.

Recognition and understanding of opposite sex civil partnership

With reference to the Scottish Government's argument that recognition of opposite sex civil partnership elsewhere in the UK and overseas would be limited and that Society's understanding of opposite sex civil partnership might be limited, comments included:

• That limited recognition of opposite sex civil partnership elsewhere in the UK and overseas should not act as a barrier. It was suggested that there may also be limited recognition of same sex civil partnerships but that this has not been given as an argument for there being no new civil partnerships. If it is not a strong enough argument for there being no new same sex civil partnerships, it is not a strong enough argument to stop opposite sex civil partnership being introduced.
• That society has coped with there being alternative options for same sex couples and there is no reason to think society would not do the same should opposite sex civil partnership be introduced. It was also suggested that people's understanding of the legal implications of marriage and cohabitation may in any case be low and that this general lack of awareness would be made no worse by making another choice available.

Complexity, costs and legal rights

With reference to the Scottish Government's argument that creating an additional set of arrangements would be difficult and/or costly, the following points were raised:

• That any increased complexity would not be significant, particularly in comparison with the changes required to introduce same sex civil partnership and then same sex marriage. As with low demand, it was also suggested that increased complexity is not, in any case, a valid argument against doing what is right.
• That there is no particular reason to think that the costs would be disproportionate. In particular, it was suggested that this assertion contradicts the findings of the Government's own Partial Business and Regulatory Impact Assessment (Annex H to the consultation paper and covered further under Question 6).
• Also on the theme of cost, the consultation paper's suggestion that the pensions and administrative implications of introducing opposite sex civil partnership are not expected to be onerous was highlighted, as was the suggestion of limited, if any, additional overall costs. Further, it was suggested that if civil partnerships would result in more stable relationships and families, there could be corresponding benefits and cost-savings for society.

With regard to Scots law already providing some protections for couples who are not and do not wish to be married, it was suggested that, although the law already provides some rights for non-married cohabitants, those rights are much more limited than those that apply to married couples and civil partners. The arrangements covering financial provision on separation or bereavement were highlighted in particular. It was also suggested that women are likely to be particularly affected, since they may have less access to resources, assets and income. The additional option of entering into civil partnership was seen as strengthening certain women's rights and security, which in turn would have a positive impact on child poverty. Some individual respondents raised very similar concerns about how their current lack of rights could affect their family following their, or their partner's, death.

Other possible advantages of opposite sex civil partnership

Other possible advantages that respondents highlighted as to be derived from the introduction of opposite sex civil partnership included:

• If someone in a civil partnership undergoes gender reassignment, the couple's civil partnership would continue to be legally recognised upon receiving gender recognition. This would bring civil partners in line with the current situation for married couples.
• It would provide an option for couples who are not comfortable with an option that has all of the connotations associated with marriage, including that of sexual intimacy.