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The Registration of Civil Partnerships Same Sex Marriage - A Consultation

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Chapter 3: Marriage

Current law

3.01 Information on marriage law in Scotland is available on the National Records of Scotland's website [6]. In general terms, under the Marriage (Scotland) Act 1977 any two persons may marry in Scotland, so long as:

  • both persons are at least 16 years of age on the day of their marriage;
  • they are not related to each other in a way which would prevent them marrying;
  • they are unmarried and not in a civil partnership;
  • the marriage would be regarded as valid in any foreign country to which either party belongs;
  • they are capable of understanding the nature of a marriage ceremony and of consenting to marrying; and
  • they are not of the same sex.

3.02 Article 12 of the European Convention of Human Rights provides that: "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."

Numbers

3.03 The table below shows the number of marriages in Scotland from 2005 to 2010:

Year

Number

2005

30,881

2006

29,898

2007

29,866

2008

28,903

2009

27,524

2010

28,480

Source: National Records of Scotland [7].

Authorisations to solemnise marriage

3.04 Section 8 of the Marriage (Scotland) Act 1977 prescribes who may solemnise marriage. Civil marriages must be solemnised by a district or assistant registrar appointed by the Registrar General (under section 17). Civil marriages must take place in a registration office or at an approved place.

3.05 Religious marriages may be solemnised by a minister of the Church of Scotland, or by celebrants appointed under sections 8(1)(a)(ii), 9 or 12 of the Act . Religious marriages may take place anywhere.

3.06 Section 8(1)(a)(ii) gives the Scottish Ministers a power to make regulations to prescribe religious bodies whose celebrants are authorised to solemnise marriage. (As indicated above, Church of Scotland ministers are already so authorised). The religious bodies currently prescribed by regulations are:

  • Baptist Union of Scotland
  • Congregational Union of Scotland
  • Episcopal Church in Scotland and other Anglican Communion Churches
  • Free Church of Scotland
  • Free Presbyterian Church of Scotland
  • Hebrew Congregation
  • Methodist Church in Scotland
  • Religious Society of Friends
  • Roman Catholic Church
  • Salvation Army
  • Scottish Unitarian Association
  • United Free Church of Scotland

3.07 Under section 9, a religious body, other than the Church of Scotland or those prescribed under section 8(1)(a)(ii), may nominate celebrants to the Registrar General. The key issues he would consider before authorising a marriage celebrant are:-

  • the nominating body must be a religious body;
  • the marriage ceremony to be used must be in an appropriate form;
  • the nominee must be a fit and proper person to solemnise marriage; and
  • the number of authorised celebrants must be in line with the needs of the body.

3.08 Examples of those authorised to solemnise marriage under section 9 of the Act include celebrants from the United Reformed Church, Jehovah's Witnesses, Christian Brethren, Muslims, Hindus and Buddhists.

3.09 Section 12 allows the Registrar General to grant to any person a temporary written authorisation to solemnise marriages, in accordance with any terms or conditions as may be specified in the authorisation.

3.10 This provision covers authorisation for specific marriages or for marriages conducted during a specified period and is used, for example, to authorise deacons of the Church of Scotland and Humanists.

Initial approach by the Scottish Government

3.11 The Government's initial view is that marriage should be open to both same sex couples and opposite sex couples. This view is grounded in our commitment to equality, and our support for stable and committed relationships. Same sex couples, like opposite sex couples, can and do establish loving relationships which they wish to formalise in a manner recognised by the state, and in some cases by the religious body to which they belong.

3.12 While civil partnerships are available for same sex couples, and provide similar responsibilities, rights and status to marriage, the two are not identical. It is clear that some same sex couples would prefer marriage to a civil partnership, as the appropriate way to declare and formalise their commitment to each other.

Question 10

Do you agree that the law in Scotland should be changed to allow same sex marriage?

3.13 The Government also considers that no religious body or individual celebrant should be required to solemnise same sex marriage. The Government recognises and understands that some religious bodies and celebrants hold that marriage is a unique bond between a man and a woman. The Government does not consider it would be appropriate to require religious bodies and celebrants who hold this belief to solemnise same sex marriage.

Question 11

Do you agree that religious bodies and celebrants should not be required to solemnise same sex marriage?

England and Wales: equal civil marriage and partnerships: potential option for Scotland

3.14 One potential option for Scotland would be the introduction of same-sex civil marriage only.

3.15 Section 4 of the UK Government's Action Plan for Lesbian, Gay, Bisexual and Transgender Equality says that the UK Government, in relation to England and Wales, will "work with all those who have an interest in equal civil marriage and partnerships on how legislation can develop". [8] The UK Government has not yet consulted on this matter.

3.16 If a proposal along these lines were followed in Scotland:

  • civil same sex marriage could be solemnised by a district or assistant registrar appointed by the Registrar General in the same way as for an opposite sex civil marriage;
  • civil same sex marriage could take place in a registration office or at an approved place, in the same way as an opposite sex civil marriage; and
  • there would be no same-sex marriage through a religious ceremony.

3.17 Under this option there could be no question of religious bodies being required to carry out same-sex marriage against their will.

3.18 However, people of faith seeking to enter into a same sex marriage would not be able to have their marriage solemnised through a religious ceremony, even if their religious body and minister of religion were prepared to undertake the ceremony. Religious bodies and ministers of religion would be denied the opportunity of solemnising same sex marriage. It would though be possible to have a religious blessing after a same sex civil marriage ceremony, in the same way as it is possible at the moment to have a religious blessing after a civil partnership registration.

Question 12

Do you agree with the introduction of same-sex civil marriage only?

3.19 The alternative view is that same sex couples of faith may wish to have a religious ceremony and the state should not stop religious bodies and religious celebrants who are content to solemnise same sex marriage from doing so. Clearly, some couples may not wish to have a religious ceremony and would choose to have a civil ceremony.

Question 13

Do you agree with the introduction of same-sex marriage, both religious and civil?

3.20 The detail of the proposals for Scotland could be along the following lines:

  • civil same sex marriage could be solemnised by a district or assistant registrar appointed by the Registrar General in the same way as an opposite sex civil marriage;
  • civil same sex marriage could take place in a registration office or at an approved place, in the same way as an opposite sex civil marriage;
  • religious marriage between two people of the same sex could take place so long as the religious body and the religious celebrant were content to solemnise same sex marriage;
  • religious marriage between two people of the same sex could take place in religious premises so long as the religious body responsible for the premises is content;
  • religious marriage between two people of the same sex could take place at any place agreed between the celebrant and the couple, in line with the arrangements for religious marriage between two people of the opposite sex.

3.21 The registration of marriage and the law on who can get married are devolved matters for the Scottish Parliament.

3.22 However, many of the responsibilities and rights that flow from marriage are reserved (eg social security benefits, taxation and immigration are reserved matters). In addition, equal opportunities and the subject matter of the Equality Act 2010 are generally reserved. Therefore, if Scotland were to move to allow same sex marriage, the Scottish Government would discuss the practical implications with the UK Government.

Religious bodies and religious celebrants

3.23 The Government does not consider that religious bodies should be obliged to solemnise same sex marriage against their will. The points and discussion here are very similar to the issues in relation to the registration of civil partnerships. They are repeated here for clarity and also because some consultees may have different views on issues in relation to marriage when compared with civil partnerships.

3.24 The Government recognises that many religious bodies consider marriage to be a unique bond between a man and a woman. The Government recognises, therefore, that some religious bodies would have strong objections to solemnising same sex marriage. As a result, we consider that religious bodies should not be required to solemnise same sex marriage.

Question 14

Do you agree that religious bodies should not be required to solemnise same sex marriage?

3.25 In some cases, the religious body may decide centrally that its celebrants will not take part in same sex marriage. 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 solemnise same sex marriage. It could be argued that allowing individual celebrants to solemnise same sex marriage against the wishes of their religious body would undermine the decision-making process of the body.

3.26 On the other hand, it could be argued that individual celebrants should be allowed to decide whether or not to solemnise same sex marriage, 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 15

Do you consider that religious celebrants should not be allowed to solemnise same sex marriages if their religious body has decided against solemnising same sex marriage?

3.27 The Government also recognises that individual religious celebrants may object to solemnising same sex marriage, 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. Therefore, the Government considers that individual celebrants should be entitled not to solemnise same sex marriage, even if the celebrant's religious body is content to do so.

3.28 If an individual celebrant should decide not to solemnise same sex marriage, this would not undermine a decision by a religious body. The religious body would have to ask another celebrant of that body to carry out the service.

Question 16

Do you agree that individual religious celebrants should not be required to solemnise same sex marriage?

3.29 The Government considers that there are two main options to ensure that religious bodies and celebrants do not have to solemnise same sex marriage against their will.

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

3.31 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 solemnise same sex marriage could advise the Registrar General which celebrants they would like to be authorised. It would be made clear that it would not be discriminatory to decide against seeking approval to solemnise same sex marriage.

3.32 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 and the subject matter of the Equality Act 2010 are generally 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 to ensure it is clear that the Act is not contravened in those circumstances.

3.33 Ensuring religious bodies and religious celebrants do not have to solemnise same sex marriage against their will may require amendment of the Equality Act 2010, which is generally reserved, to ensure that religious bodies 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 17

Which of the options do you favour to ensure that religious bodies and celebrants do not have to solemnise same sex marriage against their will?

Use of religious premises

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

3.35 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.

3.36 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.

3.37 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 solemnisation of same sex marriage.

3.38 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 solemnisation of same sex marriage when there is a disagreement about the use of the premises. The Government considers that it may 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.

3.39 As a general rule, the Government considers that the views of a religious body opposed to the use of its religious premises for same sex marriage should be respected. The issues relating to the use of religious premises is something the Government will discuss further with religious bodies during the consultation period.

Question 18

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

Civil registrars

3.40 The registration of civil partnerships by civil registrars has worked well in Scotland. The Government expects that the solemnisation of same sex marriage by civil registrars would also work well.

The future of civil partnership if same sex marriage should be introduced

3.41 Keeping civil partnership if same sex marriage is introduced might add to complexity. It can be suggested that there is no need for civil partnership if marriage were open to both same sex couples and opposite sex couples. If marriage were open to all couples, then there would be the option for all of getting married. However, some people may be happy to enter into a civil partnership to gain responsibilities and rights [9] but may not wish to enter into marriage. Alternatively, it could be argued that if it should become possible to solemnise same sex marriage through a religious service, then civil partnerships could continue but there might be no need to allow the registration of civil partnerships through a religious service.

Question 19

If Scotland, should introduce same sex marriage, do you consider that civil partnerships should remain available?

Transgender people

3.42 If Scotland should move to introduce same sex marriage, then, in future, there would be no need in law for transgender people to divorce before obtaining the full gender recognition certificate. The marriage could just continue. Transgender people and their spouses would still be able to divorce, if they wished to do so, and the issue of an interim certificate under the Gender Recognition Act would still be a ground for divorce.

Transitional arrangements

3.43 If Scotland should introduce same sex marriage, some existing civil partners may wish to convert their partnership into a marriage.

3.44 Transitional arrangements require further analysis by the Scottish Government in the light of this consultation. The detail, therefore, will be included in the consultation on any draft Bill.

Recognition elsewhere in the United Kingdom of Scottish same sex marriage

3.45 Marriages registered in Scotland are recognised in other parts of the United Kingdom, in the same way as marriages registered in other parts of the UK are recognised here [10].

3.46 Scottish marriages are also recognised in Scotland by the UK Government in respect of matters that are reserved. Clearly, though, all of these marriages are currently of opposite sex couples. The Scottish Government will discuss with the UK Government the mutual recognition of same sex marriages in the law of the different parts of the UK. The UK Government has indicated that it intends to work with all those who have an interest in equal civil marriage and partnerships on how legislation can develop.

Recognition outwith the UK of Scottish same sex marriage

3.47 Sections 212 to 218 and schedule 20 to the Civil Partnership Act 2004, and regulations made under the Act, make provision for the recognition of foreign same sex relationships, including foreign same sex marriages, in the UK. Such relationships are recognised currently as civil partnerships.

3.48 Recognition abroad of Scottish marriages and civil partnerships is, of course, a matter for the other countries rather than for Scotland. Scotland could not require other countries to recognise same sex marriages. However, if Scotland should introduce same sex marriage, the Scottish Ministers would work with other countries so the marriages could be recognised overseas and would ask the UK Government to carry out similar work.

3.49 A list of countries which have established civil unions for same sex partners and same sex marriage is at Annex D of this consultation paper. Some countries may not have introduced same sex marriage in their own jurisdictions but may recognise same sex marriage carried out in other jurisdictions [11].

Recognition of foreign same sex marriages in Scotland

3.50 If Scotland should introduce same sex marriage, the Scottish Government would intend to recognise overseas same sex marriages as marriages in Scots law, in the same way as we recognise overseas opposite sex marriages as marriages.

Forced marriage

3.51 The Scottish Parliament has recently passed the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011. This Act makes provision to protect people from being forced to enter into marriage without their free and full consent and to protect those who have been forced to enter into marriage without such consent.

3.52 The Scottish Government has no evidence to suggest that there are forced civil partnerships. As a result, the Act does not extend to forced civil partnerships but contains a provision allowing Ministers to extend the Act to civil partnerships if needed. The Scottish Government has no evidence to suggest that the introduction of same sex marriage would lead to an increase in the number of forced marriages. If any consultees do have any evidence, please let us know.

Sham marriage

3.53 Sham marriages are entered into with the aim of deceiving society. They are often entered into to avoid immigration controls. National Records of Scotland work closely with the Home Office, and others, to combat sham marriage. The Scottish Government has no evidence to suggest that the introduction of same-sex marriage would lead to an increase in the number of sham marriages. Again, if any consultees do have any evidence, please let us know.