Civil Partnerships – marriage in modern form?

Heterosexual couples will be able to enter into a civil partnership in Scotland from 1 June 2021 therefore allowing all couples a choice between marriage and civil partnership, but will this be a popular alternative or will marriage continue to prevail?

Civil partnership was introduced in Scotland for same sex couples by the Civil Partnership Act 2004. The Act took effect from 5 December 2005 and allowed same-sex couples to enter into a civil partnership, a legal relationship which carries the same rights as marriage. In December 2014, same-sex couples became legally able to marry and so had the choice between entering into a marriage or a civil partnership. Heterosexual couples remained only able to marry.

In 2018, the supreme court ruled in the case of R (on the application of Steinfeld and Keidan) v Secretary of State [2018] UKSC 32 that heterosexual couples should not be banned from entering civil partnerships. The court held that making partnerships only available to same-sex couples was discriminatory and incompatible with the European Convention on Human Rights. Following the judgment, the Scottish Parliament consulted as to whether to scrap civil partnership altogether or simply make the option available to all couples. Legislation has since been drafted and passed in Scotland to remedy the issue. The Civil Partnership (Scotland) Bill became an Act of the Scottish Parliament on 28 July 2020. From 1 June 2021, all couples will be able to submit a notice of intention to enter into a civil partnership and, after the required notice period of 28 days, the partnership can be formalised.

So what’s the difference? Legally, civil partnerships and marriage are largely identical in all of the important aspects. Reproduction, children and succession rights are all conferred with identical legal status. The only significant difference may be certain pension entitlements, in relation to which some funds impose lower survivor benefits for civil partners as opposed to married couples. Separation and the cessation of the legal relationship are also almost identical, the language used being the main difference: a civil partnership is ended by dissolution whereas a marriage is ended by divorce.

Some may argue that if legally both options are the same, then having a distinction is unnecessary. The issue is really about allowing couples a choice. Marriage can be perceived as having religious or patriarchal connotations. The institution of marriage may not be an idea which is attractive to some couples, whereas the formalities and legalities may be desirable or even necessary to others. Offering civil partnership as an option to all couples allows a legally binding relationship when marriage isn’t the right choice for them.

We will have to wait until the end of 2021 to assess the uptake of heterosexual civil partnerships and the impact that may have on the number of marriages. Since 2014, when marriage was allowed between same-sex couples, the number of couples entering into a civil partnership dropped significantly, with more couples opting for marriage. With the end of the pandemic restrictions hopefully on the horizon and a boom in weddings expected, it will be interesting to see whether the introduction of civil partnerships for all couples will have a significant impact.

Johnson Legal are experts in all matters relating to marriage, civil partnership, separation, divorce and dissolution. Contact us now on 0131 622 8477 for a free initial consultation with one of our solicitors to discuss your options.