The future of civil partnerships in Scotland hangs in the balance. Civil partnerships were introduced in 2004 as a means of formalising same sex relationships in the form of a legally binding commitment. In the movement towards equality, it was a stepping stone towards the legalising of same sex marriage which eventually came in 2014 with the enactment of the Marriage and Civil Partnership (Scotland) Act 2014. Now that the road to marriage equality has been fully traversed, is the stepping stone of civil partnership now redundant?
During the passage of the 2014 Act through the Scottish Parliament, the Scottish Government pledged to review the law of civil partnership. Accordingly it launched a consultation on the matter in September 2015, and published an analysis of consultation responses on 9 August 2016. The consultation paper proposed three possible options going forward:
- No change;
- No new civil partnerships after a certain date in the future; or
- Introducing opposite sex civil partnerships
Maintaining the status quo for civil partnerships
Although the first option would be in line with the approach taken in England and Wales following the introduction of same sex marriage south of the Border, and would undoubtedly be the simplest course of action, there is an inherent difficulty with leaving the law to stand as it is.
Under current legislation, civil partnership is only available to same sex couples. The status quo therefore creates an imbalance in that opposite sex couples do not have the option of choosing to enter into a civil partnership if they so wished, whereas same-sex couples have this option as well as the option of marrying. Some who responded to the consultation argued that this is more than an 'imbalance': it is discriminatory.
There would also continue to be a distinct status for same sex couples, which arguably goes against the grain of treating same sex couples and opposite sex couples in the same way, and concerns regarding the impact the status quo has on transgender and non-binary people have also been raised.
Despite the decline in the take up of civil partnerships after the introduction of same sex marriage, which suggests that any take up of opposite sex civil partnership would be similarly modest, continuing to make civil partnership available to only one part of society sits uncomfortably with the general movement towards greater equality.
The end of civil partnerships in Scotland
Phasing out civil partnerships over time would perhaps better serve the general aim of achieving equality from a sexual orientation perspective, and would follow the approach taken by countries such as Denmark and Sweden, where civil partnership legislation was repealed after same sex marriage was legalised. The Republic of Ireland is expected to follow suit.
Using evidence from other countries, the consultation suggests that where given the choice, most same sex couples choose marriage rather than civil partnership, and so civil partnership is not really required when marriage is also available. Many responses opined that civil partnerships are obsolete following the introduction of same sex marriage, however some in support of this option did so from their perspective that same sex relationships should not be legally recognised in any way. There would of course require to be legislative changes to bring this option into force, however is not thought that this would result in any significant costs or savings.
Removing the choice between civil partnership and marriage would reduce complexity, as well as remove the separate status for same sex couples. The consultation also noted that a further argument in favour of this option is that marriage is an internationally established institution which is more likely to be recognised overseas than civil partnerships, and so the abolition of civil partnerships will remove the risk of Scottish unions not being recognised in other jurisdictions. However the consultation notes that the removal of an option currently available to same sex couples will likely meet some resistance, and regard also must be had to the possibility that civil partners may feel pressured into changing their relationship to marriage due to civil partnership being increasingly seen as a "legacy status", or somehow 'less than'.
Indeed, some respondents noted that same sex couples may be averse to marriage due to a perception of having been discriminated against by the religious bodies which promote marriage for many years, and that it is vital for that reason that they retain the ability of having their relationships legally recognised in an alternative way.
Extending the reach of civil partnerships
As far as the third option of extending civil partnership to opposite sex couples goes, the Scottish Government indicated in the consultation that they were not persuaded as to its appropriateness. It is concerned about projected low demand, cost implications, increased complexity, and limited recognition of opposite sex civil partnerships overseas.
Furthermore, it was noted that if opposite sex couples are opposed to marriage due to a perception of its religious or patriarchal connotations, civil ceremonies are possible, and if couples do not wish to marry at all then Scots law provides some rights to cohabitants.
Whilst the Scottish Government have essentially already nailed their colours to the mast in their apparent rejection of such an extension to opposite sex couples, they nevertheless invited comment on the matter and there has been impassioned campaigning both against and in support of such a move.
Equality campaigners have suggested that opening civil partnerships up 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 choice of civil partnership from same-sex couples. Interestingly, some respondents also highlighted that some same sex couples who believe that marriage is a union between a man and a woman may wish to enter a civil partnership to preserve their religious conscience. Regard perhaps ought also to be had to some responses which highlighted that many individuals may not be able to remarry due to religious or ethical beliefs and so civil partnership offers a way for them also to have their new relationship recognised and protected by law.
Respondents also commented that cost and complexity concerns, if indeed founded, should not be a barrier to the Scottish Government doing what is fair and equitable.
In response to the Government's position that people can have a civil marriage if they wish, many argue that the civil nature of any marriage proceedings does not detract from the patriarchal and religious concept of the institution itself, and that that is enough to deter many from marrying at all. In a modern and ever-increasingly secular society, it is perhaps unsurprising that the option to enter into a legally binding commitment free from those connotations should be desirable, despite some conservative and religious groups fearing that it would undermine traditional marriage and some professional concerns about implementation in an international context.
Moreover, despite the Government's indication that the law already protects those opposite sex couples who elect not to marry, cohabitants' rights do not go as far as the rights of a civil partner. It seems that this issue has in a sense transformed from one focussed on matters of sexual orientation and equality for same sex and opposite sex partners, and the arguments which are made from a secular perspective are just as resounding.
Waiting for the law to move forward with society
The consultation stage has now drawn to a close and it remains to be seen which option the Scottish Government will choose to proceed with. Whatever the decision, the ministers perhaps ought to be mindful of the changes which continue to occur in our modern Scottish society, not just in attitudes towards LGBTI rights, but also in the increasingly diverse attitudes towards marriage, religion and secularity. The law cannot hope to move forward with society while it stands still.
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This Family Insight was written jointly by Lynsey Brown & Amanda Masson