The case in question was brought by a heterosexual couple living in England who have “deep-rooted and genuine objections to marriage”. They want to be “equal partners” in the “modern, symmetrical institution” of civil partnership. They argued that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights (ECHR) because it prevented different sex couples from becoming civil partners. Last year, the Supreme Court upheld their challenge by making a declaration of incompatibility of the relevant sections of the 2004 Act with ECHR.
Later this year, a Bill will be introduced to the Scottish Parliament to allow different sex couples to enter into civil partnerships in Scotland. The likely timescale for this law change is not yet known.
Throughout the UK from December 2005, two eligible people of the same sex have been able to register as civil partners. Civil partners effectively have 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.
From 2005 to 2018, 5,670 civil partnerships were entered into in Scotland, peaking at 1,047 in 2006. The average since 2015 is 67 per year. From 2014 to 2018, 4,997 same sex marriages were entered into in Scotland, peaking in 2015 at 1,671 including 935 conversions of civil partnership to marriage. The average for same sex marriages in Scotland since 2016 is 986 per year.
In 2015, there were 6,493 same sex marriages in England and Wales and 9,156 conversions from civil partnership to marriage compared to 861 new civil partnerships. In 2016, 7,019 same sex marriages and 1,663 conversions from civil partnership to marriage took place in England and Wales compared to 890 new civil partnerships.
These statistics, from the most recent official data presently available, show that marriage is significantly favoured over civil partnership by same sex couples throughout Great Britain but that some of those couples are still choosing civil partnership.
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 him or her. Similar provisions apply in England. 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. In England and Wales these periods are two and five years respectively.
The law on these matters mirror the equivalent bases on which divorce may be sought for a marriage in the relevant parts of the UK. Adultery of itself is a basis for divorce in any marriage, including a same sex marriage, but not dissolution of a civil partnership.
Sweeping changes on divorce and dissolution are presently proposed for England and Wales by the Divorce, Dissolution and Separation Bill. If this Bill becomes law, divorce or dissolution will be possible simply on the basis of a statement by one or both parties that the marriage or civil partnership has broken down irretrievably so long as the person or people seeking the divorce or dissolution confirm that they wish to proceed no less than 20 weeks after the proceedings are started. The Bill is in response to the Supreme Court’s ruling last year in Owens v Owens. In that case, the court reluctantly concluded that a marriage which had broken down irretrievably had to continue because none of the specific bases for divorce had been established. The Supreme Court invited Parliament to consider reforming the law which had denied Mrs Owens a divorce at this time.
Some concern has been expressed that the proposed law change for England and Wales will increase the number of divorces and dissolutions.
There are presently no Scottish Government proposals to change Scots Law on divorce and dissolution. Both north and south of the Border, though, the law on civil partnership is set to change.
Jennifer Liddell is a solicitor with BLM