21st century Scotland has proudly recognised and promoted the importance of equality for all couples no matter their sexual orientation. After a series of radical changes to the law, Scotland topped the Rainbow Index of European countries in both 2015 and 2016. This identifies the best country in Europe for lesbian, gay, bisexual, transgender and intersex (LGBTI) equality and human rights. In 2019, Scotland would have been placed third on the Rainbow Index if it been marked independently from the rest of the United Kingdom. This ranking recognises the steps Scotland continues to take to bridge the gaps of inequality.
The most significant legal change in Family Law was in 2005. This was when same sex couples were permitted by law for the first time to enter into civil partnerships, legal unions that were almost identical in all but name to marriage. These include the right to seek financial maintenance from each other (aliment), the right for financial provision on divorce/dissolution (the direct equivalent to divorce for civil partners) and the right to inherit from the spouse/civil partner on their death.
Small differences do exist between marriages and civil partnerships. Civil partnerships are created when both parties sign the civil partnership document. Couples are married at the point where the couple exchange spoken words.
Civil partnerships can only be created by a civil procedure rather than a religious ceremony, whereas marriages can be created both ways. Civil partners cannot rely on the technical legal term “adultery” to establish that their civil partnership has broken down irretrievably. However, the court will accept that sexual infidelity is behaviour that the other civil partner could not reasonably be expected to live with and therefore this remains a basis to seek to dissolve the civil partnership.
Whilst civil partnerships were acknowledged as a welcome and necessary leap towards equality, they also attracted some degree of criticism. If a civil partnership is virtually identical to a marriage, why could it not simply be called a marriage? Also, despite the intention of reducing discrimination, the result unfortunately was that new discrimination actually arose because only couples in a same sex relationship were entitled to enter a civil partnership.
Almost ten years later in December 2014 the law took another giant leap forwards. For the first time, Scottish couples in same sex relationships were permitted to marry. This meant same sex couple wishing to formalise their relationship could now choose if they would like to become spouses or civil partners. Same sex couples may now select to formalise their union with religious ceremony (in certain faiths), have a civil wedding or the civil partnership ceremony.
If the couple are already civil partners, the change in the law allows them to convert their civil partnership to a marriage if certain requirements are met. If the couple entered into a civil partnership in Scotland, the couple can make an appointment with their local registrar. After completion of a form and payment of a small fee, the parties can be officially married by administrative procedure. The marriage will be backdated to the date of the parties’ civil partnership ceremony. The parties do not need to have a marriage ceremony but they can do so if they wish. The parties can also convert the civil partnership into a marriage by having a marriage ceremony if the administrative procedure lacks appropriate romance!
If the couple entered into their civil partnership outside of Scotland, they require to have a ceremony of marriage in order to convert the civil partnership to a marriage. They cannot convert the civil partnership administratively.
In 2018, the Supreme Court ruled that only allowing civil partnerships between same sex couples was incompatible with the European Convention on Human Rights. The law has changed in England and Wales to permit opposite sex couples to enter into civil partnerships but a similar change has not been made yet in Scotland. A bill has been drafted and is currently being examined by the Scottish Parliament’s Equalities and Human Rights Committee, so we can expect in time that opposite sex couples will be entitled to choose a civil partnership over a marriage should they wish to do so. However, given that couples can already choose a civil or a religious wedding ceremony it seems unlikely that the uptake will be very high. Indeed, since same sex couples have been permitted to marry, the number of civil partnership ceremonies in Scotland have decreased.
Whether you are considering a civil partnership or a marriage, the advice from us remains the same: always consider entering into a formal, written agreement to cover matters of financial importance. These binding contracts can be entered into at any point in your relationship. The enormous benefit is that both parties can have clarity and certainty on the matters agreed which can avoid future disputes and costs should their marriage or civil partnership breakdown.
Achieving equal rights for all, no matter their sexual orientation, will remain an important legal issue. It is likely the laws will continue to change until this outcome is achieved.
Johnson Legal Family Law can help with same sex marriage and civil partnerships. Call us now on 0131 622 to arrange a free chat
