The Registration of Civil Partnerships Same Sex Marriage - A Consultation

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Chapter 2: Civil partnerships

Origins

2.01 Civil partnership was established across the United Kingdom by the Civil Partnership Act 2004, passed by the Westminster Parliament. The Act allows same sex couples to obtain legal recognition of their relationship.

2.02 The registration of civil partnerships is a devolved matter. However, the Scottish Parliament agreed at the time, through a Sewel Motion [1], that the Westminster Parliament could legislate for Scotland to create the civil partnership system, given that many of the responsibilities and rights held by civil partners relate to reserved matters, such as benefits and immigration [2].

Numbers

2.03 The first civil partnerships took place in 2005. The table below shows the number of civil partnerships which have taken place in Scotland:

Year

Number

2005

84

2006

1,047

2007

688

2008

525

2009

498

2010

465

Source: National Records of Scotland (formerly the General Register Office for Scotland). [3]

Responsibilities and rights

2.04 The responsibilities and rights of civil partners are very similar to the responsibilities and rights of married couples. Key differences are:

  • civil partnerships may not take place in religious premises and can only be registered by civil registrars (more details of this are contained in paragraphs 2.06 to 2.11 below); and
  • there may be a perception that civil partners do not have the same status and standing as married couples.

2.05 There are other differences in the rights and responsibilities of civil partners and married couples. Details are contained in Annex B.

How civil partnerships are currently registered

2.06 Any two persons, regardless of where they live, may register a civil partnership in Scotland provided that:

  • both persons are at least 16 years of age on the day they wish to register their civil partnership;
  • they are not related to each other in a way which would prevent them registering their civil partnership;
  • each is unmarried or not already registered as a civil partner;
  • they are capable of understanding the nature of a civil partnership and of validly consenting to its formation; and
  • they are of the same sex.

2.07 A civil partnership may be registered only by a district registrar or an assistant registrar who has been authorised by the Registrar General for that purpose. [4] In other words, a civil partnership can only be registered through a civil ceremony.

2.08 In addition, the Civil Partnership Act 2004 currently provides, for Scotland, that:

"the place [where civil partnerships are registered] must not be in religious premises, that is to say premises which -

(a) are used solely or mainly for religious purposes, or

(b) have been so used and have not subsequently been used solely or mainly for other purposes."

2.09 The provisions for Scotland barring religious ceremonies and the use of religious premises for civil partnerships contrast with marriage. In Scotland, you can be married in either in a religious ceremony or in a civil ceremony. A religious ceremony includes other belief systems, such as humanism.

2.10 The civil partnership arrangements were set up to be civil and secular in nature: in essence, to mirror civil marriage. However, there is nothing to stop a same sex couple receiving a religious blessing for their union. This has no legal effect but can provide a blessing to suit a couple's religious beliefs. Clearly, it is up to religious bodies and their celebrants to decide whether they wish to offer blessings of this nature.

2.11 Therefore, an opposite sex couple can have a single ceremony which both registers the marriage in law and recognises their religious faith. A same sex couple would need a civil ceremony to register their civil partnership and a further ceremony recognising their religious faith.

Government's initial views

2.12 The Government's initial view, outlined in more detail below, is that civil partnership legislation should be changed. However, this consultation also discusses the introduction of same sex marriage. As discussed at paragraph 3.41 below, if same sex marriage should be introduced it could be argued that there is no need for civil partnership or that whilst civil partnerships could continue, there would be no need to allow civil partnerships to be registered through a religious ceremony.

2.13 If civil partnership legislation should be changed, it would still be open to civil partners, if they wished, to have an entirely civil and secular ceremony with no religious aspect. However, the Government recognises that a number of couples would wish to have a religious ceremony to register their civil partnership and to acknowledge their faith. The Government considers that this is in line with religious freedom and freedom of expression, so long as the religious body and celebrant are happy to carry out the service. The Government is clear that no religious body or celebrant should be required to register a civil partnership against their will.

Question 1

Do you agree that legislation should be changed so that civil partnerships could be registered through religious ceremonies?

The proposals in England and Wales and whether they offer a model for Scotland

2.14 The absolute bar on civil partnerships being registered in religious premises was removed for England and Wales from the Civil Partnership Act 2004 last year. The UK Government has since consulted on detailed proposals so that civil partnerships can start being registered on religious premises in England and Wales.

2.15 The UK Government emphasised that the measure is "entirely voluntary. It will be for each faith group to decide whether they wish to host civil partnership registrations; none can be forced to do so against their will." [5]

2.16 The UK Government has made it clear that under their proposals, civil partnership registration in England and Wales will continue to be civil in nature. Paragraph 3.24 of the UK Government consultation says that the changes made to the Civil Partnership Act 2004 south of the border do not remove the prohibition:

" on the use of religious service while a civil partnership is being registered. The ban on the use of religious service during civil partnership registration means the registration cannot be led by a minister of religion or other religious leader, must not include extracts from an authorised religious marriage service or readings from sacred religious texts, hymns or other religious chants, or involve any religious ritual or any form of worship."

2.17 Paragraph 3.34 of the UK Government consultation notes that it would be possible in England and Wales for a faith group to have their own registrars conduct civil partnership registration but this would be a matter for individual local authorities as civil partnership registrars are designated by the local authority.

2.18 Arrangements for the registration of civil partnerships in England and Wales are for the UK Government. The Scottish Government has considered whether the proposals for England and Wales could be followed in Scotland. The proposals are in line with the original intention of the Civil Partnership Act 2004 - that civil partnerships should be civil and secular in nature.

2.19 However, there are three main reasons why it may be considered that what is proposed for England and Wales would not be appropriate for Scotland:

  • the proposals for England and Wales reflect the different tradition of that jurisdiction, which focuses on the concept of "approved premises". Although this type of concept is used in the current law in Scotland on civil partnerships and civil marriage, the focus here is on who should be approved to act as an approved celebrant or as an authorised registrar;
  • the proposal for registrars to carry out official duties on religious premises would be contrary to the law, practice and tradition in Scotland, where a distinction has always been made between civil and religious ceremonies; and
  • the proposals do not allow same sex couples to have a religious service even if a religious body and celebrant are content to carry out the service.

Question 2

Do you think that the proposals in England and Wales on registration of civil partnerships in religious premises would be appropriate for Scotland?

2.20 The alternative view is that civil partners who wish should be able to have a religious ceremony to register their partnership, so long as the religious body and the celebrant are content to carry out the service. This would be in line with the concept of religious freedom.

2.21 In these circumstances, the religious ceremony could take place in religious premises, so long as the religious body was content for them to be used. Alternatively, a religious ceremony could take place at a location to be agreed between the celebrant and the couple. This would be similar to the current arrangements for the solemnisation of religious marriage.

2.22 To achieve these objectives, amendments could be made to the law which applies in Scotland through an Act of the Scottish Parliament. Such amendments could:

  • allow a religious celebrant to register a civil partnership, so long as the religious body and the celebrant were content to do so;
  • remove the absolute bar on the registration of civil partnerships in religious premises. Any registration of civil partnerships on religious premises would be carried out by a religious celebrant who was content to carry out the service. Civil registrars would not undertake registration on religious premises; and
  • allow the religious registration of civil partnerships to take place in another location agreed between the celebrant and the couple.

2.23 These proposals would change the nature of civil partnership. It would, of course, remain possible to have an entirely civil and secular registration service, conducted by a civil registrar in a registration office or at an approved place, and with no religious ceremony. However, the proposals would also mean that, if the partners wished, a civil partnership could be registered through a religious ceremony, so long as the religious body and the celebrant were content to carry it out.

2.24 The proposals would maintain the clear distinction between a religious ceremony and a civil ceremony.

Question 3

Do you agree with allowing religious celebrants to register civil partnerships in religious premises?

Question 4

Do you agree with allowing religious celebrants to register civil partnerships in other places agreed between the celebrant and the couple?

Religious bodies

2.25 The Government does not consider that a religious body should be obliged to register civil partnerships against its will. The Government recognises that many religious bodies consider marriage to be a unique bond between a man and a woman. Although civil partnership is not identical to marriage, the proposed religious registration service outlined here would be very similar to a religious service for the solemnisation of marriage. The Government recognises, therefore, that some religious bodies would have a strong objection to taking part in civil partnership ceremonies.

Question 5

Do you agree that religious bodies should not be required to register civil partnerships?

Religious celebrants

2.26 In some cases, the religious body may decide centrally that its celebrants will not take part in civil partnerships. There is an argument that a decision of this nature taken by the hierarchy of a religious body should be binding on the celebrants belonging to that body and they should not be able to register civil partnerships. It could be argued that allowing individual celebrants to register civil partnerships against the wishes of their religious body would undermine the decision-making process of the body.

2.27. On the other hand, it could be argued that individual celebrants should be allowed to decide whether or not to register civil partnerships, in line with individual religious freedom. Some religious bodies may wish to allow individual celebrants to reach their own view about whether or not to register civil partnerships.

Question 6

Do you consider that religious celebrants should not be allowed to register civil partnerships if their religious body has decided against registering civil partnerships?

2.28 The Government also recognises that individual religious celebrants may object to taking part in civil partnerships, even if their religious body is content to do so. Individual religious celebrants may consider marriage to be a unique bond between a man and a woman, even if the hierarchy of their religious body takes a different view.

2.29 Although civil partnership is not identical to marriage, the proposed religious registration service outlined here would be very similar to a religious service for the solemnisation of marriage. Therefore, the Government considers that individual celebrants should be entitled not to register a civil partnership, even if the celebrant's religious body is content to do so.

2.30 If an individual celebrant should decide not to register a civil partnership, this would not undermine a decision by a religious body to register civil partnerships. The religious body would have to ask another celebrant from that body to carry out the service.

Question 7

Do you agree that individual religious celebrants should not be required to register civil partnerships?

Options for ensuring religious bodies and celebrants do not have to carry out civil partnerships against their will

2.31 The Government considers that there are two main options to ensure that religious bodies and celebrants do not have to carry out civil partnerships against their will.

2.32 Option 1 would be to extend the existing authorisations of celebrants under the Marriage (Scotland) Act 1977 for opposite sex marriage so that the same celebrants would automatically have the ability to register civil partnerships. It would be made clear that religious bodies and celebrants who did not wish to register civil partnerships would not be required to do so.

2.33 Option 2 would be to set up a new procedure, separate to that for the solemnisation of opposite sex marriage, under which all religious bodies who wished to register civil partnerships could advise the Registrar General which celebrants they would like to be authorised to register civil partnerships. It would be made clear that it would not be discriminatory to decide against seeking approval to register civil partnerships.

2.34 When considering options in this area, the Scottish Government will take account of the devolution settlement and existing provisions in UK equality legislation. Under section L2 of Part II of Schedule 5 to the Scotland Act 1998, equal opportunities are reserved but the imposition on certain Scottish public authorities of some functions in relation to equal opportunities is devolved. Schedule 23 to the Equality Act 2010 contains a number of exemptions from equality legislation for religious organisations and ministers of religion.

2.35 Ensuring religious bodies and religious celebrants do not have to carry out civil partnerships against their will may require an amendment of the Equality Act 2010, which is generally reserved, to ensure that religious bodies and religious celebrants are not at risk of contravening the 2010 Act. In addition, the Scottish Government will have regard to the European Convention on Human Rights.

Question 8

Which of the options do you favour to ensure that religious bodies and celebrants do not have to register civil partnerships against their will?

Religious premises

2.36 A religious body opposed to taking part in civil partnerships may not wish its religious premises to be used by a body content to take part in civil partnerships. The Government recognises the strong attachment religious bodies may feel towards their premises and understands that religious bodies may not wish ceremonies they were opposed to taking place on their premises.

2.37 The Government expects that decisions on use of premises would generally be for the hierarchy of the body rather than for the individual celebrant who generally uses the premises. However, the Government recognises that in some faiths decisions may be for the celebrant or may have been delegated to the celebrant.

2.38 Where the religious body owns the premises outright, it seems straightforward enough for the body to decide the premises should not be used, when it wishes to do so.

2.39 Where the religious body is a tenant, or shares the use of the premises with other faiths, matters may be more complicated, as there may be different views on the registration of civil partnerships. The Government's initial view is that it may be best not to make provision in legislation on the use of religious premises for the registration of civil partnerships when there is a disagreement about the use of the premises.

2.40 The Government considers it preferable to allow disagreements of this nature to be resolved at a local level, rather than make legislation. This allows the matters to be discussed between the parties involved and amicable solutions reached. As a general rule, the Government considers that the views of a religious body opposed to the use of its religious premises for civil partnerships should be respected. The issues relating to the use of religious premises are something the Government will discuss further with religious bodies during the consultation period

Question 9

Religious bodies may not wish their premises to be used to register civil partnerships. Do you agree that no legislative provision is required to ensure religious premises cannot be used against the wishes of the relevant religious body?