« Previous | Contents | Next »
Listen
The consultation on Civil Partnership Registration: analysis of the responses
CHAPTER 8: LEGAL AND POLICY CONSEQUENCES
FAMILY LAW
Question 12: We propose that civil registered partners are recognised in Scots family law. This covers, parental responsibility, children (residence and contact on dissolution), aliment, property division of dissolution, intestacy, inheritance and damages. Our proposals are explained in paragraphs 6.36 to 6.42.
8.1 The principle of recognition in family law was broadly welcomed by the majority of respondents, not least because it provides additional security for those families that comprise a non-married couple. Of 203 responses to this question, 167 respondents (82%) approved, 18 (9%) disapproved, and 16 (8%) agreed in part. The remaining 2 respondents did not know.
I am in a same sex relationship. We have a joint mortgage on our home where we live with my 8 yr old son (whom I receive Working Tax Credits for as a single parent! Our joint income would take us out of qualifying). We do everything the same as other families in our street and we are 100% a happy family unit. We have no where near the same rights as same sex couples. Myself and my partner can't wait for the day when we can register our relationship and have the same rights as all our friends and family have. We are not asking for marriage only the same rights. (Individual response)
8.2 There was not however unanimous acceptance of the principle that such relationships should have the same status in family law as that of marriage.
Before we go down this route Scotland needs to debate the makeup of family which it has not done to my knowledge. (Individual response)
8.3 It was suggested that in the legislation should, in addition to considering the impact of the new status on family law generally, establish the general family law duties that partners in a civil partnership would have to each other, such as that of aliment and mutual support.
Parental responsibility; child residence and contact
8.4 The issue of parental rights and responsibilities generated a large quantity of written comment. Apart from the responses debating whether same-sex couples are as appropriate as opposite sex couples for the role of parenting, the responses highlighted two main issues. The main issues were whether the current legal position under the Children (Scotland) Act 1995 requires alteration, and whether parental rights for a child conceived by lesbian couple via artificial insemination requires special treatment in law.
8.5 Firstly, there was concern that the proposals would lead to serial multiple parental rights and responsibility orders under the Children (Scotland) Act 1995 if the courts were required to give such orders merely as a consequence of their registering a civil partnership. Whilst supporting the principle that those in a registered civil partnership should be entitled to apply for parental rights and responsibilities, many respondents suggested that the current tests in the Children (Scotland) Act 1995 should remain the main tests. The welfare of the child being paramount should remain the main test, rather than focusing on the relationship of the applicant to a biological parent. Whilst a number of respondents viewed the position of a registered civil partnership as differing from that of a step-parent, such views were not uniform.
The mediators support the proposals to extend the right to apply for parental responsiblities to registered partners. This is assuming that the rights of the children and birth parents are legally safeguarded. Where child have formed the long term relations with committed stepparents, the courts should be able to make the necessary orders to protect these important relationships to maintain meaningful contact following dissolution of the partnership. Such legislation would affect the expectations of partners with parental roles and encourage the maintenance of contact in the event of a family break up. (Family Mediation, Central Scotland)
8.6 The second main issue raised was whether the law should recognise automatically both women as having parental rights and responsibilities where they were in a registered civil partnership and agreed to have a child together via artificial insemination. Support for this special case was predominately from LGBT organisations, but not exclusively so.
A distinction should be made between cases in which a person registers a partnership with someone who already has a child, and cases in which two women already in a civil registered partnership decide to have a child via artificial insemination by donor. The situation of such women would not be akin to that of parent and step-parent, it can be argued, since both would have made a joint decision to have a child which they will bring up together. In cases of donor conception at a registered fertility clinic, it would be appropriate, in our view, to accord full parental responsibilities and rights to both women in the civil registered partnership, provided that the civil partner of the woman undergoing the treatment gave her consent to this treatment taking place. (Children 1st)
Aliment and property division.
8.7 The lack of detail within the proposals was noted by several respondents.
These proposals affect major areas of Scots family law and yet are hardly touched upon in this consultation document. (Individual response)
8.8 Responses from the legal sector and others sought clarification that similar provisions to those that apply to married couples under the Family Law (Scotland) Act 1985 would apply. Clarification was also sought as to whether other legal rights available to spouses such as occupation of the matrimonial home under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 will be available to those in registered civil partnerships.
Adoption and fostering
8.9 Although some respondents welcomed the the parallel consultation on adoption and fostering, a number of respondents expressed disappointment that the proposals adopted a neutral stance on this issue and did not provide a theoretical commitment to same sex couples being able to adopt / foster in Scotland. Some respondents thought that there was no rationale for not extending adoption and fostering rights now.
It can no longer be argued that gay or lesbian people cannot adopt (for the law permits them to do so) and it would be discriminatory to allow registered opposite-sex couples - i.e. married couples - to adopt but not registered same-sex couples. To resolve this discrimination in the partnership legislation rather than waiting a couple of years for new adoption legislation would serve one valuable political purpose and at the same time serve the interests of Scottish children - it would allow the Adoption Policy Review to concentrate on the substantive issues of adoption and child welfare, rather than have their attention diverted to the far less important issue of same-sex couples (Legal sector)
Registering the death of a partner
8.10 The registration of death by a partner is currently possible, and indeed individuals have complete freedom choosing whom to appoint as executors in their will. The important issue raised by registration of civil partnerships is whether civil partners will automatically be entitled to register the death and have their status as partner also recorded. The definition of partner would need to be refined so that the status of the partner informing of death is appropriately recorded.
" Would this mean that there would be three categories of partner in the list of informants for a death registration?
(i) Civil Partner (where the partnership was registered)
(ii) Partner (where the partnership was not registered)
(iii) Business Partner" (Association of Registrars in Scotland)
8.11 The proposals do not make it clear whether the intention is to have registered civil partners recorded as next of kin. From the responses received there was the assumption that whilst "next of kin" has no formal legal status, in practice it is fundamentally important. To be recognised as next of kin would assist in eliminating discrimination.
RECOGNISING THE RELATIONSHIP IN SCOTS LAW
Question 13: We propose that civil registered partners are recognised consequentially in other aspects of Scots Law. This includes council tax, local government elections, making financial decisions on behalf of adults with incapacity, hospital visiting and medical treatment, prison visiting, survivor pensions and injury benefits from public service pension schemes, fatal accident inquiry, burial, post mortems and organ retention. Our proposals are explained in paragraphs 6.43 to 6.53.
8.12 Of 205 respondents, 179 agreed (87%), 15 (7%) disagreed, 9 (4%) agreed in part with this question, and 2 (1%) did not know. This level of approval was second only to that of question 1, indicating that rights in sickness and bereavement may be the least contentious of the various issues under consideration. Certainly many respondents commented that in times of illness and bereavement the current lack of rights afforded to same-sex couples can cause unnecessary distress, though some others pointed out that such additional distress is not limited to same sex couples. Although it is the general assumption that rights follow from registration, one respondent raised the issue of whether it is the intention for the broader rights to apply retrospectively, which could be relevant for a registered partner in assessing damages for an incident which occurred before registration was possible.
8.13 The broader rights of civil partners also raised issues around employment law rights.
There will be a need to review procedures where there is discretionary and compassionate leave in the event, for example, for the sickness or hospital treatment of the partner. (Local authority)
8.14 Other broader rights relevant to the next of kin approach are those rights that are available to persons of the same household. A response from the Association of British Credit Unions indicated that the current legal provisions, which govern access to membership of credit unions, allow for members of the same household to join only if they are also the relative of a member. Currently this definition excludes same-sex partners from joining some credit unions. The range of responses on broader rights such as that from the association of credit unions highlights the difficulty that faces the legislature in implementing the necessary changes as many rights are dependent at least in part on common law principles and interpretations.
Hospital visiting and medical treatment
8.15 The responses received on these points included several from health care professionals. The issue of acceptance of the status of a same-sex partner by other relations is at the root of a number of the difficulties faced by medical professionals and would, for example, ensure that same sex partners are treated the same way as a married couple when a partner is hospitalised. Several respondents emphasised the need to strengthen their rights as next of kin in the process. Legislation confirming that a registered civil partner could act as next of kin would help to clarify the process and strengthen their position.
Although it is recognised that 'next of kin' has no legal definition there is a danger of discrimination if medical staff are allowed to decide whether a same sex partner is given this status. Under the Civil Partnership proposals training of all medical staff needs will be key in ensuring that same sex partners are treated the same way as a married couple when a partner is hospitalised. (Other organization)
8.16 The Faculty of Advocates suggested that, for the purposes of health care, the issue did not require legislation and lay within the administrative authority of the Scottish Executive.
Pensions and survivor rights
8.17 Some respondents described personal circumstances of perceived injustice and inequality resulting from failure to recognise same-sex partnerships for pension purposes. The proposals have the effect of extending similar rights of spouses to registered civil partners to those public sector schemes for which the Scottish Ministers has devolved powers. It is potentially possible that other pension scheme might not follow that approach, and indeed a number of respondents questioned the desirability for providing automatic dependants rights to all registered civil partners. The opposition to survivor rights was not purely cost based as it questioned whether in a same sex relationship one partner was likely to be dependent on the other (it being suggested that the likelihood of dependence would be greater in a heterosexual marriage where one party may have left a career for the purpose of raising the family). Other respondents also maintained that there was no obligation even at European level to give rights to surviving civil partners.
The EU Framework Directive for Equal Treatment in Employment 2000/781EC does not appear to require the introduction of same-sex marriage or quasi-marriage for equal access to employment rights: the preamble para (21) expressly states: This Directive is without prejudice to national laws on marital status and the benefits dependent on them." The UK government has already addressed potential discrimination issues - involving comparison between benefits for surviving same-sex and opposite-sex cohabitees - by introducing the Employment Equality (Sexual Orientation) (Amendment) Regulations 2003 coming into force on 1 December 2003. It is envisaged that the pensions industry will respond by reviewing the whole question of survivor pensions and will possibly adopt the Dutch model of enhanced benefits for scheme members with no survivor benefits as the norm. (Faculty of Advocates)
Fatal Accident Inquiry, Burial and Post Mortem, Organ retention
8.18 Responses received on this issue focused on the process of consent to post mortem and to the issue of organ donation. It was clear that for the respondents, mainly from the health care professions, that defining the 'next of kin' - discussed above - was crucial in determining how the processes would operate in practice. Guidance and training of health care professionals appears necessary to ensure that the proposed rights are delivered.
OTHER LEGAL ISSUES
8.19 The general principles of the proposals appeared to attempt to create a legal process for the creation and dissolution of registered civil partnerships similar to that used for married couples. This would give a broad range of rights similar to those acquired by marriage. In consequence many of the responses focused on omissions, that is differences in the procedures and rights. A number of responses detailed areas of law that require to be considered for amendment to ensure that registered civil partnerships achieves equality with married couples, assuming that is the intention of the Scottish Ministers. The range of areas of law commented on included:
- Criminal laws, especially the law of bigamy and incest. Amendment was also suggested as being necessary for some statutory sexual offences:
Relevant civil partnership should be a defence to a charge under s 3 of the Sexual Offences (Amendment) Act 2000, and s 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003. It should be a defence to a charge under s.13(5)(c) of the Criminal Law (Consolidation) (Scotland) Act 1995 that the man charged had reasonable cause to believe the other was his civil partner -cf s.5(5)(a) of the same Act. They might have entered a civil partnership abroad in a country that allows that at 15, for example. (LGBT organization)
- Delict, such as the right to damages on death of a partner and on injury
- Discrimination & employment law
- Domestic violence protection should be provided and therefore the Matrimonial Homes (Family Protection) (Scotland) Act 1981 would need to be amended.
- Evidence, rules on giving evidence in civil and criminal cases including the compellability of spouses as witnesses and privileged marital communications
- Housing such as tenancy succession etc.
- Legal aid entitlement and availability
Residual clauses
8.20 The general principles of the proposals appeared to attempt to create a legal process for the creation and dissolution of registered civil partnerships similar to that used for married couples which would give a broad range of rights similar to those acquired by marriage. In consequence many of the responses focused on omissions, that is differences in the procedures and rights. The general lack of detail and the potential other legal changes required in addition to those detailed in the proposals led to the suggestion of a full audit:
There are various other consequences of marriage than those listed in the discussion paper and a careful audit of both statutory and common law needs to be undertaken in order to identify every single marital consequence in law. (Legal sector)
8.21 In recognition that the fundamental changes inherent in the proposals might result in some matter being inadvertently left out of consideration, it was suggested that the legislation should provide some "sweep up" provision and also that there should be some provision for the future.
THE CENTRE FOR PUBLIC POLICY AND MANAGEMENT
This report has been prepared by the Centre for Public Policy and Management at The Robert Gordon University. The Centre for Public Policy and Management (CPPM) is one of Scotland's leading multi-disciplinary research centres. It was created in 1995 and is part of the Aberdeen Business School in The Robert Gordon University. Professor Paul Spicker is the Director of the CPPM; Sue Morris is the Depute Director.
The work of the CPPM is based on the application of people with a range of expertise to the practical problems of public sector, voluntary and independent agencies. The staff attached to the centre have backgrounds in policy analysis, social administration, management, planning, law, economics and social research.
Through its research and its links with the Scottish Forum for Modern Government, the Centre has working contacts with local authorities throughout Scotland, the Scottish Parliament, MSPs, the Scottish Executive, voluntary organisations, government departments, agencies, professional and employee bodies and foundations. Recent and current research work has been undertaken for the Scottish Executive, HMIC, Oxfam, Aberdeen City Council, Dundee City Council and the European Social Fund. The CPPM's website can be consulted on http://www.rgu.ac.uk/publicpolicy/cppm.
The Centre is based on a large, multi-disciplinary team with detailed knowledge of related areas, as well as methodological capacity, experience and expertise. The team offers
- a proven track record of delivering high quality research on time and to budget
- the ability to produce reports in an accessible and readable form
- a thorough understanding of the research issues
- an experienced team of researchers, large enough to handle the demands of the project
- a range of skills and experience in relevant subject areas
understanding and experience of the workings of the policy process, and of the relationships and mechanisms through which research informs policy.
The CPPM can be contacted at
Aberdeen Business School
The Robert Gordon University
Garthdee Road
Aberdeen
AB10 7QE
Tel: 01224263111
E-mail: cppm@rgu.ac.uk
« Previous | Contents | Next »