‘Marriage is not everybody’s cup of tea. For some, it represents religious or patriarchal baggage that many rail against.’ This was one of the ways Alex Cole-Hamilton MSP, deputy convener of the Scottish Parliament’s Equalities and Human Rights Committee, explained the rationale for the Civil Partnership (Scotland) Bill which unanimously passed its third and final legislative stage on 23 June. This bill will enable mixed – or opposite – sex couples to enter into a civil partnership in Scotland.
He continued “The legislation will correct an aberration in the legal landscape by which the law recognises a union. The bill will offer legal and financial protection for both parties in the event of the relationship ending, in the same way that it does in marriage and in same-sex civil partnership.”
The bill is about equality and choice in relationships. People not otherwise prohibited to enter into a legally recognised relationship will have the same choices to marry or become civil partners regardless of gender. The Scottish Government is committed to “implementing the bill as soon as possible so that no one will have to wait too long to enter into a mixed-sex civil partnership, should they wish to do so”. In time, married couples will be allowed to convert a relationship to a civil partnership and vice versa.
In reality, Scots Law had to be changed in these ways because of certain provisions of the European Convention on Human Rights (ECHR) as those provisions were interpreted by the UK Supreme Court in 2018. The case in question was brought by a heterosexual couple living in England who had “deep-rooted and genuine objections to marriage.” They wanted to be “equal partners” in the “modern, symmetrical institution” of civil partnership. They argued that the Civil Partnership Act 2004 was incompatible with ECHR because it prevented different-sex couples from becoming civil partners. The Supreme Court upheld their challenge by making a declaration of incompatibility with ECHR of the relevant sections of the 2004 Act.
In response to the Supreme Court ruling, the Westminster Parliament passed the Civil Partnerships, Marriages and Deaths (Registration etc.) Act 2019. Section 2 of that Act allows opposite sex couples to form civil partnerships in England and Wales.
From December 2005 and throughout the UK, two eligible people of the same sex have been able to register as civil partners, giving them effectively the same rights and responsibilities as if they were married. The option of marriage became available to same sex couples in England and Wales on 13 March 2014. In Scotland, marriage has been an option for same sex couples from 16 December 2014.
Speaking in the chamber of the Scottish Parliament on 23 June 2020, Alex Cole-Hamilton explained: “Irrespective of sex, gender, identity or sexual orientation, equality before the law is a vital baseline against which further progress towards all human equality and rights can be made.”
Civil partnerships which have “broken down irretrievably” may be brought to an end by a court process of dissolution. In Scotland, irretrievable breakdown can be established where one partner has behaved in such a way that the other “cannot reasonably be expected” to live with them. Irretrievable breakdown may also be established in Scotland if the partners have not lived together for one year and the other partner consents to dissolution or simply where they have not lived together for two years.
The law on these matters mirrors the equivalent bases on which divorce may be sought for a marriage in Scotland. Adultery of itself is a basis for divorce in any marriage, including a same-sex marriage, but not dissolution of a civil partnership. In time, the bases for dissolution of a civil partnership might also be brought fully into line with the bases for a divorce.
Nobody can predict the future with absolute accuracy. It will take a long time for the social and societal impacts of the recent changes to be revealed. In the short term – and as we gradually emerge from the COVID-19 pandemic – it will be interesting to see whether the recent legislative activity on relationships impacts upon the number of people choosing to enter into a civil partnership or marriage.
Nicola Buchanan, Law Society of Scotland Accredited Specialist in Family Mediation, BLM