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

6 devolved issues and treatment

6.1 Civil partnership registration has both reserved and devolved consequences. The reserved components primarily relate to pensions, benefit and taxation consequentials flowing from registration, and immigration and fertility treatment issues. The devolved aspects are eligibility, the registration arrangements, the family law consequentials in relation to children, and arrangements on dissolution or the death of one partner, and issues such as prison visiting and medical treatment.

6.2 This section sets out more clearly the substantive policy issues associated with civil partnership registration for same-sex couples, and where these are devolved, indicates how these will apply to 'civil registered partners'.

6.3 Table 1 below highlights the policy aspects of civil partnership registration and explains whether these fall into reserved or devolved policy areas.

Reserved proposals

6.4 The UK Government, through the Department of Trade and Industry, has already published their consultation paper in Scotland for comment on the reserved proposals². Their intention is to recognise the long term commitment couples who register their partnership have made and for their new legal status to trigger access to rights and responsibilities that are appropriate to long term partners. The detail of the proposals in reserved areas can be found in the UK Government's consultation paper.

Devolved proposals

6.5 The devolved proposals cannot be read without the context of the reserved proposals. Civil partnership registration would provide for the legal recognition of same-sex partners and give legitimacy to those in, or wishing to enter into, interdependent, same-sex couple relationships that are intended to be permanent. Registration would provide a framework whereby same-sex couples could acknowledge their mutual responsibilities, manage their financial arrangements and achieve recognition as each other's partner. Registered partners would gain rights and responsibilities, which would reflect the significance of the roles they play in each other's lives. This in turn would encourage more stable relationships and family life. Such a legal status can only be credibly achieved with the inclusion of the reserved rights and responsibilities as well as those in devolved areas.

Table 1: Reserved and devolved aspects of civil partnership registration

Formal Requirements

6.6 Same-sex couples registering their relationship as a civil partnership would be entering a legal status intended to be permanent. This will have the advantage of providing stability and clarity for the couple and will help them achieve a stable family life. The commitment should not be entered into lightly. We believe that the basis for the new status should be in existing Scots law.

Age

6.7 Both parties to a civil partnership registration would have to be 16 years of age or above.

Exclusivity of Partnerships

6.8 A person should only be able to enter into one registered partnership arrangement at any time. In practice this means that a person would not be able to enter a registered partnership if they were already in a marriage or a registered partnership. Once the previous marriage or partnership had been legally dissolved, they would be able to enter into a subsequent marriage or registered partnership. In order to protect people from unwarily entering into relationships that are not exclusive, the couple would be asked to declare that they were not entering into a civil registered partnership before an existing partnership had been terminated, or entering into a civil registered partnership while married.

Prohibited Degrees of Relationship

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.

6.10 We would like to know whether you support our proposals on the formal requirements of a civil partnership registration scheme.

Registration

6.11 A process to register a civil partnership will be necessary to ensure that the formal requirements are met. Registration is a matter fully devolved to the Scottish Parliament and the process of registration should be situated in Scots law.

Delivery of Civil Partnership Registration

6.12 We believe that registrars are best placed to deliver civil partnership registration. This would help to emphasise the stability and permanence of the partnership arrangement. In addition, the local registration service is ideally placed to act as a focal point for information on services associated with key life events.

Giving Notice of Registration

6.13 We believe that there should be no residence requirement in Scotland as this sits best with Scots law. Both parties would be required to give notice in prescribed written form. There is no need for them to do so in person (e.g. they could do so by post). Details could be entered in the "notice book" and posted on the registrar's notice board, both of which could be inspected by the public in case of objection. Anyone who knows, for example of a legal impediment to a forthcoming civil partnership registration should have the same opportunity to raise an objection as he or she would have in relation to other formal changes of legal status.

Civil Partnership Registration Schedule

6.14 We believe that a civil partnership registration schedule should be devised and that this should be the legal document to be signed by the couple, 2 witnesses and the registrar.

Waiting Period

6.15 We propose a minimum 15-day waiting period between giving notice and registration in order to give time to check compliance with the formal requirements.

Exceptions to the Waiting Period

6.16 We propose that provision be made for the Registrar General to reduce the waiting period where, due to the exceptional circumstances of the case, he considers it appropriate to do so. Such circumstances might include an urgent military posting, or circumstances where one of the parties was seriously ill and not expected to recover. We believe the Registrar General should be given discretion to consider such cases as they arise.

Location

6.17 We believe that registrars should be enabled to carry out a civil partnership registration at an approved place, other than the registrar's office.

Registration for those who are Housebound of Detained

6.18 We believe that a registrar should be able to attend other places in case of serious illness and there is good reason why the registration may not be postponed until the parties are able to attend the registration office.

Cost

6.19 We believe there should be a statutory fee for the provision of services and that this should be based on existing fees for similar services.

Procedure

6.20 We propose that the following steps should be taken to register a civil partnership:

Step 1: the couple gives notice to the registrar of their intention to register their partnership (this could be done by post);

Step 2: the registrar checks compliance with the formal requirements during which time the couple wait for 15 days;

Step 3: a date is set for the partnership registration in consultation with the registrar;

Step 4: the notice period lasts 3 months and the registration may take place during that period (though if a couple simply want to check availability of a registrar or book a place for the registration they may do so at any time);

Step 5: the civil partnership schedule would be issued no earlier than 7 days before the date of the intended civil partnership registration;

Step 6: on the day of registration, a registration will be performed by the registrar in the presence of the couple and 2 witnesses;

Step 7: on the day of registration, the couple, the registrar and 2 witnesses sign the civil partnership schedule;

Step 8: the registrar will subsequently complete the register using the details given in the schedule, then the registrar will sign the register;

Step 9: the couple would receive a certificate of evidence of the registration of their partnership

Privacy Issues

6.21 We recognise that some same-sex couples may want the fact of their registration to remain private. The new legal status of registered partner would bring with it rights and responsibilities. It would not be desirable to operate a private register where registration confers rights and responsibilities that flow between the couple and the state and between the couple and third parties such as employers. The Executive believes that civil partnership registration represents so significant a commitment that it should be a matter of public record. Other formal arrangements for changes of legal status are a matter of public record.

6.22 Registration information is currently available to anyone, in the form of an extract or certificate, on payment of the appropriate fee. If civil partnership registration were delivered by the local registration service, the public record of such events would be subject to the same arrangements.

Dissolution

6.23 We intend registered civil partnerships to be long-term, stable relationships and believe, therefore, that an appropriate degree of formality should be required to bring a registered civil partnership to an end. Registered partnerships should balance the rights of the legal partners and their responsibilities; towards each other, towards their children and towards those they treat as children of the partnership.

6.24 We propose that the arrangements for dissolution of a civil partnership should be broadly similar to those required to bring a marriage to an end by a decree of divorce. Such arrangements should be situated within Scots law.

6.25 We believe that the procedure for dissolution of a civil partnership should be court based and that partners should have to make a formal application to the court to commence proceedings. The partner applying for dissolution of the partnership should be required to show that it has broken down irretrievably before the court will make an order for dissolution of the partnership.

Grounds for Dissolution

6.26 In order to show that the partnership has broken down irretrievably it would be necessary to produce evidence of unreasonable behaviour, that is behaviour of such a kind that the applicant could not reasonably be expected to continue living with their partner, or the fact that the parties had been separated for a period of either two years (with the consent of the other party) or five years (without such consent).

6.27 If at any stage it appears that the partners may be able to be reconciled, the court will be able to adjourn the proceedings for such period as it thinks fit to allow them to try to attempt reconciliation.

6.28 It would be necessary to produce evidence of one or more of these grounds for dissolution, and the court would be required to inquire as far as is possible into the facts alleged by the partner applying for dissolution and into any facts alleged by the other partner. If the court were satisfied on the evidence that the partnership has broken down, a provisional order for dissolution of the partnership would be granted. After a period of six weeks an application can be made to make the order substantive.

6.29 In accordance with our intention of supporting stable relationships, no application for an order for dissolution of a partnership would be accepted until at least one year had passed since the partnership was originally registered, although a subsequent application for an order for dissolution might rely on evidence from that period.

Void and Voidable Partnerships

6.30 We propose that a partnership should be void (having never been valid) under the following circumstances:

(a) It is not a valid partnership because:

(i) The parties are within prohibited degrees of relationship;

(ii) Either party is under the age of 16;

(iii) The parties have disregarded the requirements for registration of the partnership;

(b) That at the time of registration either party was already lawfully married or was a party to another civil partnership.

6.31 The effect of an order that a partnership has never been valid, will be to make the partnership void.

6.32 We do not propose any grounds for a partnership being voidable (able to be declared invalid on the application of one of the parties).

Order for Separation

6.33 Where parties have fulfilled the requirements for an order for dissolution of a partnership, they could apply for an order for separation. This order would recognise the separation of the couple but would not allow the parties to register a new civil partnership or to marry. A party could subsequently use the evidence used to support an application for an order for separation to apply for an order for dissolution of the partnership.

Public Funding for Legal Advice

6.34 We propose that where appropriate, legal aid should be available for dissolution in accordance with the general eligibility requirements.

6.35 We would like to know whether you support our proposals on how to register and dissolve a civil partnership.

Family Law Consequences of Registering a Partnership

6.36 We believe that the new legal status of 'civil registered partner' should be recognised in Scots family law. We believe that such a couple should be considered as having made a commitment to one another which is intended to be permanent. As such, we believe that a registered partner should be included within legislation as a family member and be recognised as "next of kin".

Parental Responsibility

6.37 Parents do not always have parental responsibility and people who are not parents can acquire parental responsibility. If an individual marries or registers a partnership with someone who has children, they may well play a significant role in the children's upbringing. At present, those playing a significant role in a child's upbringing can apply to the court to gain parental responsibility for the child in question. We would expect that a court would take account of the commitment between registered partners. We therefore believe that registered partners should, like other step-parents, be able to apply to the court to gain parental responsibility for their partner's children.

Children - Residence and Contact

6.38 In the event of the dissolution of a partnership, we believe that the interests of the child should continue to be paramount. A registered partner could have played a significant and lengthy role in the upbringing of their partner's child. We believe that there should be the prospect for the child to have continued access with the registered partner following the dissolution of the partnership, if it is in the best interests of the child.

Aliment, property division on dissolution, intestacy, inheritance and damages

6.39 We believe that registered partners should be recognised as having made a significant commitment to share their lives together and support one another permanently. On dissolution or on death, we believe that that commitment should be recognised in Scots law to protect the vulnerable party at this time. Financial provision on dissolution should therefore be based on a presumption of equal shares. If two people registered a partnership, that relationship would have a legal status and should be recognised under the intestacy provisions.

Adoption and Fostering

6.40 In England and Wales same-sex couples can already foster children and under recent legislation will be able to apply to adopt jointly. This is not the case in Scotland. We have recently launched the second phase of the Adoption Policy Review. This will examine the legal framework for fostering and adoption, including who is eligible to adopt or foster children. We plan to wait for the review's findings before considering how the law on adoption and fostering might be amended to reflect the new status of civil registered partners.

Registering the Death of a Partner

6.41 There are certain categories of people who can inform the registrar about a death. We propose that a bereaved civil partner is included in the list of those people who can inform on a death and have his/her designation on the register.

6.42 We would welcome your comments on the family law consequences of civil partnership registration.

Recognising the relationship in Scots Law

Council Tax

6.43 We believe that civil registered partners are in a financially mutually supportive relationship and should be jointly and severally liable for one another's council tax, in the same way that spouses are.

Local Government Elections

6.44 There are numerous rights and responsibilities relating to the procedures for voting in elections that are specifically restricted to spouses, because they have a legally recognised relationship to each other. These range through the whole electoral process and include such areas as maintaining the electoral register, issues relating to voting by proxy, assisting certain votes to cast their vote and the rights of a candidate's spouse to attend certain electoral activities. We believe that where electoral legislation refers specifically to the conduct of Scottish local government elections, it should be amended to include registered civil partners.

Family and Nearest Relative

6.45 We propose that, where appropriate, changes are made to existing legislation so that the new legal status of 'civil registered partner' is understood in the context of definitions of 'family' or 'nearest relative'.

Hospital Visiting and Medical Treatment

6.46 There is no legal definition of "next of kin" in this context. It is a term used by hospitals on admission forms to identify the person to contact in an emergency. There is nothing to prevent same-sex partners acting as "next of kin". There is no law governing who can visit a patient in hospital - it is for the medical staff, following NHS guidance, to make the appropriate decision in each individual case.

6.47 No person has the right to consent to medical treatment on behalf of another adult. If the patient is not in a position to give consent to a medical intervention, a married or unmarried partner, or others in a close relationship with the patient may be asked to advise on the patient's likely best interests, but the decision ultimately rests with the doctors. However, we believe that the creation of the status of "registered partner" will help to bring about a culture change and to remove the difficulties currently faced by some same-sex couples when one partner becomes ill. We will ensure that, within our devolved responsibilities, guidance given to medical staff adequately addresses the situation.

Prison Visiting

6.48 The Assisted Prison Visits Scheme (APVS) provides assistance with the cost of visiting prisoners to close family members and partners (of either sex) who have a low income. Unmarried partners who apply for assistance under the APVS are required to provide proof of the relationship. We propose that civil registered partnership status should be treated on the same basis as married partners in terms of the information required as proof of relationship. We also propose that all registered partners should be treated as close relatives, irrespective of whether their relationship subsisted prior to imprisonment, particularly in connection with inter-prison visits.

Survivor Pensions and Injury Benefits - Public Service Pension Schemes

6.49 Although pensions are generally reserved, responsibility for some public sector pension schemes, in areas such as local government, NHS, teachers, police and fire has been executively devolved to the Scottish Ministers (although parity is generally kept with the equivalent schemes in the south).

6.50 Public service pensions schemes provide occupational pension benefits to members and their eligible survivors. Eligible survivors include any children and the married spouse of the member. Most public service schemes do not provide survivor pensions to unmarried partners, although death lump sum benefits may be provided to unmarried partners in some schemes where members are able to nominate them. We propose that, like the UK Government, the civil registered partners of members of public service schemes will be eligible for survivor pensions on the same basis as married partners.

6.51 Some public service employment groups - namely the armed forces, the Civil Service, the Fire Service, Local Government, the National Health Service and the police forces - have injury benefit schemes, allowing the payment of benefits to family members following death of an employee. The payment of injury allowances to family members is consequential upon arrangements in pension schemes for surviving spouses and dependants' pensions. The policy on injury benefits therefore follows the policy on public service pensions.

Fatal Accident Inquiry, Burial and Post Mortems, Organ Retention

6.52 We propose that 'bereaved civil partner' is included in the definition of near relatives and families in this area to ensure that a civil registered partner whose partner has deceased has appropriates rights and responsibilities.

6.53 We would welcome your comments on recognising civil partnership registration in other aspects of Scots law.

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