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Civil Partnership Registration: A legal status for committed same-sex couples in Scotland

5 principles

5.1 The creation of a Scottish civil partnership registration scheme for same-sex couples needs to be grounded in firm principles to ensure that such a scheme is understood in a broader Scottish context. These principles have been outlined below. Your comments on these principles are invited.

• We believe that Scottish same-sex couples should be able to register their partnership in Scotland rather than having to travel to England or Wales.

5.2 This would avoid any discrimination that could be encountered by some same-sex couples living in Scotland who do not have the means to fulfil the waiting and notice periods in England and Wales. For example, those on a low income, with a disability or living geographically further from the border are likely to experience more difficulty in registering their relationship in England or Wales, or might even be prevented from doing so.

• We believe that the UK Government should recognise partnerships registered by same-sex couples in Scotland for reserved purposes.

5.3 In other words, same-sex couples who register their partnership in Scotland should still be eligible to the same rights and responsibilities that fall in reserved areas as couples who registered their relationship in England or Wales. This includes access to survivor pensions, recognition for immigration purposes, and joint treatment for income-related benefits.

• We believe that partnerships registered by same-sex couples in Scotland should trigger access to a comprehensive package of rights and responsibilities in devolved areas that largely mirrors those available to civil registered partners in England and Wales.

5.4 This would ensure that 'civil registered partners' are not treated with significant difference in Scotland to those residing in England or Wales. Along with recognition in reserved areas, it ensures that civil partnership registration operates with parity across Great Britain thereby avoiding the difficult and complex cross border issues that might otherwise be faced by same-sex couples in the most difficult times.

• We believe that devolved aspects of civil partnership registration should be based on Scots law.

5.5 This ensures that we do not import English law into what is a uniquely Scottish system of law, but rather that we carry forward Scots law into the development of civil partnership registration in Scotland.

• We believe that in order to achieve a comprehensive package of rights and responsibilities in reserved and devolved areas, and to avoid difficult cross border issues, that Westminster is best placed to legislate for civil partnership registration in Scotland through a UK Civil Partnership Registration Bill.

5.6 The Scottish Parliament does not have competence to legislate in reserved areas. However, in order to achieve a comprehensive package of rights and responsibilities, avoid difficult cross border issues and ensure recognition of Scottish civil registered partners for reserved purposes, it would make sense for one Bill to take forward legislation for the whole of Great Britain. That could only be achieved through a Westminster Bill and with the Scottish Parliament agreeing to a Sewel motion for Scottish provisions to be included in a Westminster Bill.

• We recognise the role that marriage has for many in Scottish society and do not seek to undermine marriage by extending civil partnership registration to cohabiting couples.

5.7 A high number of cohabitees and the population more generally believe in the myth of common law marriage - that a cohabiting couple is the same as a married couple in the eyes of the law. This is not true. The Scottish Executive is committed to reforming family law for all Scotland's people and the extent and nature of legal rights for cohabiting couples will be considered in that context. This winter, we will issue a consultation paper that will set out our plans for reform and invite views from a wide range of stakeholders, organisations and individuals.

• We do not seek to open up marriage to same-sex couples. Instead we are creating a new legal status of civil registered partner for same-sex couples.

5.8 Marriage is recognised in Scotland as a status that can only be shared between a man and a woman. The new legal status of civil registered partner will be accessible to committed same-sex couples who wish to make a long-term commitment to one another. This status would trigger access to rights and responsibilities in reserved and devolved areas which flow from the registration of a partnership.

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