In 2014, Scotland introduced the Marriage and Civil Partnership (Scotland) Act. The purpose of the Act was to make provision for same sex couples to enter into a marriage. Before then, same sex couples could not legally marry but could enter into a civil partnership.
Civil partnerships were introduced in 2004 to offer same sex couples a legal status similar to marriage. It did not extend to opposite sex couples. Some same sex couples felt that civil partnership was "less than" marriage and did not have the same impact or effect while some opposite sex couples considered it unfair that they could not enter into a civil partnership.
The introduction of same sex marriage in 2014 meant that same sex couples had in practical terms more choice than opposite sex couples as to how they recognised their relationships and gave them formal status.
Same sex couples could cohabit, enter into a civil partnership or marry. The choices for opposite sex couples were cohabitation or marriage.
That has now changed with the issuing of the Supreme Court's judgement in the case of Rebecca Steinfeld and Charles Keidan. In 2014 Rebecca and Charles tried to enter into a civil partnership but were refused on the basis that this option was only available to same sex couples.
The case progressed through the court system and was heard this month in the Supreme Court of the United Kingdom, who held that restricting civil partnership to exclude opposite sex couples was a breach of human rights legislation. This case is an English case but it is likely that Scotland will follow suit.
The practical effect of the judgement means that couples now have more choice. They can continue to cohabit, enter into a civil partnership or marry.
One of the main perceived advantages of cohabitation is its flexibility. There is no requirement to participate in a ceremony or register the relationship. In Scotland, should a cohabitation come to an end the parties to the relationship have rights to seek a type of financial settlement from one another under the Family Law (Scotland) Act 2006. Their entitlement is not the same as a married couple would have and is subject to a one year time limit for applications. A potential disadvantage of cohabitation is the uncertainty about what might happen at the end of the relationship particularly in relation to financial arrangements.
Civil partnership is a legally recognised relationship between two people which should soon be extended to include opposite sex couples. It is available to people aged 16 or over who are single, divorced or widowed and not closely related. Civil partnership requires a ceremony which can take place at a register office, a venue approved by the local council or religious premises where permission has been given by the organisation.
The partnership comes into existence once it is registered.
A key advantage of civil partnership is that it confers the same rights and recognition upon the partners as it would upon a married couple without the requirement to marry. At the end of the relationship the parties are likely to have more certainty than cohabitants about how their entitlement to financial settlement might be calculated.
Marriage, like civil partnership, requires a formal ceremony and registration and is available to two people 16 or over who are single, divorced or widowed and not closely related.
Marriage offers advantages to couples for tax and estate planning purpose and provides protections upon the end of the relationship.
Avoid? - which choice is best?
When considering whether their relationship should be formalised in any way, couples should think carefully about their goals and expectations. It is important to have a candid discussion about how the end of the relationship might look and what each party would like to do in the event of a separation as each choice has potentially different consequences.
For many couples, cohabitation is more than enough but with that cohabitation can come uncertainty.
Civil partnership and marriage offer similar advantages and disadvantages to one another but in terms of certainty as to rights and obligations are more concrete.
It is always useful to get specialised legal advice if you are thinking of taking the step from cohabitation to civil partnership and/or marriage or if you are continuing to cohabit. A cohabitation agreement can be very useful to ensure certainty for the future. Agreements can also be entered into both before and after marriage and/or civil partnerships take place.
The Supreme Court decision is an important step forward to even out the playing field and recognition that whether same sex or opposite sex, couples often want and need exactly the same things – recognition, stability and security.
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