01 July 2021

Morven Douglas explains why same–sex and mixed-sex couples will soon have the same options available to them when formalising their relationships.

With the coming into force of the Civil Partnership (Scotland) Act 2020, civil partnerships in Scotland are now not only available to those in same-sex relationships, but also to heterosexual couples.

As with those who intend to marry, a notice of intention to enter a civil partnership requires to be submitted at least 29 days before the civil partnership is to be registered. Under the new legislation a notice of intention can be submitted from 1 June 2021 and accordingly, civil partnerships between men and women can be entered into from 30 June 2021.

What is the legal difference between marriage and civil partnerships?

In practice, there is no significant legal difference between the rights and obligations of spouses and the rights and obligations of civil partners towards one another.

If the legal implications are the same, why do we need both marriage and civil partnerships?

The purpose of extending civil partnerships to mixed sex couples is to ensure that both same-sex and mixed-sex couples have the same options available to them if they wish to formalise their relationship. In England and Wales, the Supreme Court ruled that preventing mixed-sex couples from entering into a civil partnership is incompatible with the European Convention on Human Rights. As a result, the Scottish Government acknowledged that they would also need to review Scots law on civil partnerships and they launched a consultation requesting views on whether registration of civil partnerships should be closed or, alternatively, whether civil partnerships should also be available to mixed-sex couples. Based on the responses to the consultation, the latter option was chosen.

There are many reasons why a heterosexual couple may not want to marry, for example, due to religious reasons. The 2020 Act, therefore, provides couples with an alternative way to formalise their relationship whilst still obtaining the same rights and corresponding obligations. Further interesting comments received during the consultation in support of extending civil partnerships included:

• All those who view marriage as a patriarchal institution are provided with an alternative process to obtain the same legal rights and obligations as those who marry.
• Bisexual people would no longer have their choice limited based on the sex of their partner, and
• It would enable a trans person to remain in their civil partnership after obtaining a gender recognition certificate.

There were of course some consultees who were not in favour of extending civil partnerships to mixed-sex couples and a common argument in support of this stance was that civil partnerships are now redundant and only serve as a reminder that same-sex couples were not, until relatively recently, permitted to marry. It is positive, we think, that this position was not adopted by the Scottish Government. This would have alienated numerous couples who simply do not agree with the institution of marriage. With the advent of the 2020 Act, all couples now have the choice as to how to formalise their relationship – that surely can only be a good thing!

Whilst we remain living under lockdown restrictions, including a limit to the number of people who can attend events, restrictions will continue to apply both to weddings and civil partnership ceremonies. This may, therefore, limit the number of couples wishing to take advantage of the extension of civil partnerships in the immediate future.

Going forward, and as we emerge from the pandemic, it will be interesting to see how many couples decide to sign on the dotted line of a civil partnership contract or skip down the aisle to wedding bells - watch this space!

Morven Douglas, Senior Associate: mdo@bto.co.uk / 0141 221 8012

www.btofamilylaw.co.uk