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The consultation on Civil Partnership Registration: analysis of the responses
PART 3: DETAILED PROVISIONS
Part 3 includes two main sections. Chapter 7 covers the formation and dissolution of partnerships. Chapter 8 considers the legal and policy consequences of the proposals.
CHAPTER 7: REGISTERING AND DISSOLVING A PARTNERSHIP
REGISTERING A PARTNERSHIP
Question 10: We propose that there are set formal requirements to be met by those wishing to register a partnership. These are explained in paragraphs 6.6 to 6.10.
7.1 Of 194 respondents, 152 (78%) approved, 14 (7%) disapproved, 21 (11%) agreed in part, and 7 (4%) did not know. As this question refers to a wide range of procedures and rules, the general sense of approval can be taken to reflect the general support in responses for the principle of partnership registration rather than the specific points raised.
Formal Requirements
7.2 The range of comments received conclusively supported the position that there should be formal requirements. Most respondents thought that the formal requirements should be the same as those of marriage, albeit that the rationale for having the same requirements differed. The range of views expressed ranged from avoiding inequality and prejudice to avoiding making registration of civil partnerships less onerous.
The formal registration of a relationship should not be entered into lightly by anyone.
(Individual response)
7.3 On technical legal matters two issues were raised. Firstly, the need to ensure that civil partnership registration is not rendered null and void due to some minor procedural breach of the formal requirements (as the position is under section 23A Marriage (Scotland) Act 1977). Secondly, and more fundamentally, whether the procedure for civil partnership registration, which as proposed will have no residence requirement, will be available to foreign nationals regardless of whether their national jurisdiction recognises same-sex partnerships.
Age
7.4 A few respondents expressed concern that the proposed age for civil partnership registration was 16. Erroneously one respondent viewed this as a reduction in the age of consent from 21 to 16, but other concerned respondents queried whether the age of consent needed to be the age for registration, suggesting that perhaps 18 might be more appropriate.
Exclusivity of Partnerships
Para 6.8: A person should only be able to enter into one registered partnership arrangement at any time.
7.5 The proposals for registration of civil partnerships assume that such partnerships will be between a same sex couple, and will be limited to this relationship. Two written responses challenged the view that civil partnerships should be limited to relationships with one partner, one respondent stating:
Civil partnerships should be available to two or more partners of the same sex, or both sexes (Individual response).
7.6 The other responses were from the legal and local authority sectors and they centred on the technical requirements to ensure exclusivity. Essentially these highlighted a need for amending the current term of 'marital status' to include civil partnerships, and for introducing some form of criminal sanction for attempting to enter into more than one civil partnership - such as by amending the definition of bigamy to prevent entering into more than one marriage or civil partnership at any one time.
Prohibited Degrees of Relationships
Para 6.9: We propose that the Forbidden Degrees provided in Section 2 of Schedule 1 to the Marriage (Scotland) Act 1977 would be what is required for Scotland. These differ in some respects to what applies in England and Wales, but achieve internal consistency with Scots law.
7.7 The consultation does not consider the issue of whether a same-sex partnership is a sexual partnership. Issues such as sexual offences and the implicit consent to sexual relationships attributed to marital relationships have not been addressed. The assumption of "forbidden degrees" is based in prohibitions applying to sexual relationships, which are founded partly in relation to exploitation and abuse, and partly to concerns about procreation. Several respondents felt that the issue was inapplicable, either because sex was not an implicit element in civil partnership, or because of the emphasis on procreation. There is a question as to whether the rights available in a civil partnership could be available for (for example) a brother and sister, or grandparent and grandchild. This issue consequently overlaps with the question of non-sexual relationships, considered previously.
7.8 The crux of a number of responses regarding the issue of the relevance of the forbidden degrees, especially those based on consanguinity, was a challenge to the purpose of civil partnerships, and is well reflected by the following response:
Removing this restriction would demonstrate that you are proposing something other than a gay marriage. (Individual response)
FORMAL PROCESSES
Question 11. We propose that there be a set process for the registration of a civil partnership, the dissolution of a civil partnership and that a civil registered partner be able to inform the registrar of the death of a partner. These are explained in paragraphs 6.11 to 6.35.
7.9 This section again relates to a large number of different propositions. Of 193 respondents, 145 respondents (75%) approved, 14 (7%) disapproved, 29 (15%) agreed in part, and 5 (3%) did not know.
7.10 Registration of the death of a partner is not considered in the stated sections, but in paragraph 6.41, which is also mentioned in question 12. Responses relating to the death of a partner have consequently been collated in that section.
Registration
Para 6.12: We believe that registrars are best placed to deliver civil partnership registration.
7.11 The majority of respondents acknowledged the registrars as being the appropriate body to administer civil partnership registration, although a couple of respondents queried whether solicitors might be the more appropriate administrators of the process, especially if it were to be viewed as a contractual relationship rather than a marriage. The question of whether the purpose of civil partnership registration is intended to be a 'gay marriage' underpinned much of the comments. If registration was to be viewed as a formal administrative process, as it is for birth and death, this would affect the role of the registrar.
7.12 The role expected of the registrar in the registration process, and in particular whether they should be performing a ceremony, was not made explicit in the proposals. This aspect was considered by a number of respondents. Many respondents, including returns from the local authority sector and registrars, expressed strong reservations about the prospect that the legislation might require registrars to perform a ceremony. They questioned whether registrars would be compelled to perform a ceremony contrary to their moral or religious beliefs, and these objections were supported by some religious organisations. Certainly an obligation to provide a ceremony appears more like a marriage, and seems to make civil partnership registration equivalent to marriage.
Many of those who did not agree with civil partnership registration or who agreed with a registration only process expressed the view that they would be unable to conduct a ceremony for religious or moral reasons and were concerned that this requirement would be imposed on them if included in the final legislation. ... for the majority of those who responded the preferred option would be a registration only process. (Association of Registrars in Scotland)
7.13 The issue of ceremony was commented on further under 6.17, dealing with location, which is considered below.
Notice and Waiting Periods
7.14 The nature of these provisions is to bring civil partnership registration into a format similar to marriage. It appeared to some respondents, including the Law Society of Scotland, that the period of notice of three months was excessive. However not all respondents accepted the need for a quasi-marriage procedure, and one respondent suggested that the transfer of legal rights and change in legal status which can be achieved through the registration of parental rights might be a more useful model.
We would like to see a requirement that the legal implications of civil partnerships are made available to couples giving notice of their intention to register. We also believe that this would be equally beneficial for couples who give notice of intention to marry (LGBT organisation)
Location
7.15 The issue of location raised in 6.17 and by implication in 6.18 generated a large amount of comment and confusion. 6.17 implicity suggests that civil partnership registration is to be more than an administrative process, likely to involve some sort of ceremony, and that it could take place in other locations than the registry office. This seems to make 6.18, about special provision for housebound people, redundant.
At present, where a marriage takes place at an approved place, the registrar conducts a ceremony and the marriage schedule is signed by both parties, their witnesses and the registrar. A registration is not 'carried out' at the venue. A registration is carried out at the registration office where the marriage register is held. If a registration only process is intended this would only be possible in a registration office. (Association of Registrars in Scotland)
7.16 Having raised the issue of ceremony, respondents from a variety of backgrounds, including religious organisations, the Equal Opportunities Commission and the Faculty of Advocates, commented on the omission from the proposals of provision to enable religious celebrants to perform a civil partnership registration ceremony. Some religious ceremonies, without legal status, already take place in Scotland.
I already married my (same sex) partner 21 months ago in the City Chambers, Edinburgh. We were married by the recently retired Bishop of Edinburgh witnessed by all our families and friends (150) from across the globe. We had kilts, wedding cake, and huge reception for everyone at a large city centre hotel. The hotel treated us like any other wedding couple (including the cost!) The wedding was also witnessed by several friends from the police service and no one (including the Bishop) was arrested. Are we married? Yes, but the state is the only entity that doesn't know or cares to know. (Individual response)
7.17 Failure to provide for religious celebrants, whose churches recognise same-sex unions, to deputise for registrars in a similar manner as under the Marriage (Scotland) Act 1977, was regarded as discriminatory.
Given the very close similarity of the proposals to the present arrangements in Scotland for heterosexual civil marriage, it is regrettable that there is no proposal for religious celebrants, whose churches and consciences would allow them to do so, to deputise for registrars as they do under the marriage acts. I do hope that the Executive will enable this to happen. (Religious organisation)
7.18 Some respondents argued that civil partnerships should be a completely secular matter with no religious element.
Civil partnership should be completely secular, with no religious element. As is the case now, churches and other faith organisations should be able to bless a couple's commitment to each other, but they would have no role in conducting civil partnership ceremonies. (Individual response)
Steps to register a Civil Partnership
7.19 The steps proposed in 6.20 are based on the provisions for marriage. This is in keeping with the recommendations of the Equal Opportunities Committee:
The Committee recommends that the Scottish Executive use the Marriage (Scotland) Act 1977 and the Divorce (Scotland) Act 1976 as the basis for the procedures for civil partnership registration and dissolution in Scotland and adapt the specific rules as required to reflect the realities of same-sex relationships. (Equal Opportunities Committee)
7.20 However, the similarity with marriage generated an amount of criticism, primarily from the local authority and registrar sector. Step 6 in particular states that a registration will be "performed", which suggests a ceremony taking place. They questioned whether it is desirable to create a process similar to marriage rather than a process similar to other forms of registration, such as that of births and deaths. Certainly there were other views that it would cause confusion or create a public perception that civil registration is the same as marriage.
7.21 On the procedural details the comments received focused on step 5. The issuing of a civil partnership schedule was regarded as superfluous and irrelevant as in terms of the proposals only registrars can perform the registration. In marriage, the marriage schedule is only released where the couple is being married by a religious celebrant. Step 5 should be removed unless provision is made for persons other than registrars to carry out the registration.
7.22 As regards step 7 the need for two witnesses was queried. This requirement again appeared to be justified solely on the basing the process on a marriage ceremony rather than other types of registration or indeed the general requirements for writing for the formation of contracts in Scotland.
Privacy
7.23 Whereas the proposals suggest a public need for information outweighing any private desire for privacy, a number of responses from LGBT organizations as well as others, suggest the desire for privacy is rather a genuine concern that public registration may bring with it discrimination, bullying and harassment. It is therefore suggested that if registration is to be made publicly available then it should be supported by legislation to prevent discrimination, such as creating a duty on public bodies not to discriminate as has recently been created as regards racial discrimination. Other suggestions centered on the development of a process to ensure that access to registers is restricted to those who demonstrate a legitimate reason for such access.
We currently live in a society in which LGBT people face verbal abuse and physical assaults from other members of the public. In big cities it is possible for LGBT people to have a degree of anonymity. This is often not true for those that live in smaller communities. Some LGBT people feel confident enough to be able to 'come out', others do not. The proposals as they currently stand force those that wish to register their partnership to 'come out' to society whether they wish to do so or not. It may therefore be the case that those who could benefit from registering their partnership may not feel able to do so - in effect a self-enforced form of exclusion. By making registration a public record those on the list may be open to abuse. I am aware of significant numbers of LGBT people who have been subjected to homophobic graffiti, verbal abuse and physical attacks when their sexuality has become known to neighbours. ... The problem may be overcome by either by allowing a privacy option for those that do not wish their registration to be on public record or alternatively by restricting access to same-sex registration documents. (Individual response)
DISSOLUTION
7.24 Generally responses supported the principle that the registration of civil partnerships required a process for formal dissolution on a basis similar to current Scottish divorce law, with similar access to related rights such as Legal aid. As regards the financial implications of the procedure assuming legal aid is made available, the Scottish Legal Aid Board commented:
Assuming that proceedings will be raised in the sheriff court and the Court of Session, civil legal aid will be available to qualifying individuals. The number of such partnerships being dissolved each year where one or other of the individuals would be financially eligible for civil legal aid, appears likely to be modest and so the legal aid consequences both in terms of staff resources and the Fund will not be substantial. In the absence of detailed information about the numbers of such partnerships that will be dissolved each year it is difficult to assess the total cost. The court cases would be broadly similar to those for divorce actions that, in the year 2002 to 2003, averaged ?1,755 per case for a sheriff court family matrimonial matter. Comparable costs in the Court of Session were ?4,461 per case. Revised procedures and fees for civil legal aid will increase this cost in the year 2003-2004. (Scottish Legal Aid Board)
7.25 The majority of responses received focused on the difference in the procedure proposed with the current procedures for divorce. These differences are considered below under the headings of grounds for dissolution of partnership, provisional orders for dissolution and one year waiting time.
Grounds for Dissolution
7.26 The proposals in 6.26 only provide for dissolution grounded on either irretrievable breakdown or separation, being two years with consent or five years without consent. Comment was also made as regards the desirability to reduce the time of separation required, for divorce and in consequence for the dissolution of civil partnerships. Respondents from a spectrum of legal and other organisations recommended the inclusion of a simplified procedure, similar to simplified divorce for couples where there is neither child issues nor financial provisions being sought.
7.27 Other omissions noted were the remaining two other grounds for divorce, that of desertion and of adultery. The ground of desertion was considered appropriate for the dissolving civil partnerships, however due to the heterosexual definition of adultery there was broad consensus that sexual infidelity need not be a separate ground, as it could be incorporated within unreasonable behaviour. Sexual infidelity should be covered under the unreasonable behaviour ground and it was suggested that guidelines should be produced to explain the scope of unreasonable behaviour.
While we would agree that adultery requires the parties to be of opposite sex at present and we agree that these can fall under the ambit of reasonable behaviour, we would welcome a clear statement to that affect in the legislation or the inclusion of these ways of proving irretrievable breakdown of the partnership. (LGBT organization)
Provisional orders for dissolution
7.28 A number of respondents from the legal, local authority, political and other organisations noted that the procedure proposed in 6.28 which requires an initial provisional order for dissolution of partnership introduced a procedural step not required under Scottish divorce procedure. This additional step was criticised for being unnecessary and being based on the procedure under English law (of decree nisi followed by a decree absolute) rather than the Scottish procedure in which a decree of divorce is final, subject only to appeal.
I strongly oppose this English import. As for marriage there should be a single decree of dissolution, with financial matters being left over to a later date if necessary. (Law Society of Scotland)
7.29 The Scottish Legal Aid Board highlighted that the effect of introducing an additional procedural step would increase the costs of dissolution to the Legal Aid Fund.
One year waiting time
7.30 The final point to be commented on is the requirement for a period of at least one year to elapse after registration before a dissolution can be sought. This provision does not exist for married couples and it is suggested that as it is unnecessary in relation to marriage there is no justification to apply it to civil partnership. Indeed again this requirement appeared to echo English law rather than Scots law, to the frustration of some respondents.
We agree with the procedures in the proposals, except the ones that have been snuck in from English law, such as having to wait six weeks or a year before applying for a divorce. (Submission to Equal Opportunities Committee)
Void and voidable partnerships
7.31 The responses received highlighted potential omissions from the grounds of invalidity. The main three grounds commented on were :
(a) lack of true consent (e.g. because of mental incapacity or duress/coercion)
(b) parties not of same sex; and
(c) incurable impotency
7.32 There appears to be a need to further define the personal capacity necessary to enter a civil partnership and it would be anticipated that the Scottish courts would apply similar rules regarding lack of consent as apply to marriage. However the other potential omissions commented upon, those of parties not of the same sex and of impotency, again fundamentally question the proposed purpose of civil partnerships. Only if such grounds for invalidity are adopted will civil partnerships be limited to same-sex, sexual partnerships.
7.33 The consequence of declaring a partnership void is not explored. One commentator suggested that the position should be similar to that for married couples:
The rule in section 17 of the Family Law (Scotland) Act 1985 is often overlooked but must be extended to registered partnerships. This permits financial provision to be granted to parties whose marriage is declared void (as opposed to being brought to an end by divorce). If registered partnerships are declared void (as opposed to being terminated by dissolution) then the parties should, like their opposite-sex counterparts, be able to seek financial provision. (Legal sector)
7.34 The responses from the legal sector supported the proposal not to have voidable civil partnerships especially in view of the recommendation of the Scottish Law Commission to remove the possibility of voidable marriages. Some respondents from LBGT organisations suggested that on the grounds of non-discrimination, as non-consummation renders a marriage voidable, civil partnerships should also be voidable. That view was not unanimous: indeed one LBGT organisation commented:
Civil partnerships should not be voidable on any grounds, nor should there be any form of irregular civil partnership. (LGBT organization)
Order for separation
7.35 The responses on this point, which were primarily from the legal sector, were unambigious. There was no support for judicial separation of civil partnerships, and indeed the responses received question the need for judicial separation in marriage. Judicial separation is only justified on the basis of enabling formal separation where a parties' religious belief prevents divorce.
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