Part 3. Same sex marriage
3.01 The Government intends to introduce same sex marriage whilst, at the same time, ensuring that safeguards exist in key areas such as:
- Protecting religious and belief celebrants who do not wish to solemnise same sex marriage.
- Freedom of speech.
3.02 This Chapter, and associated annexes, discusses these issues.
Authorising religious and belief celebrants to solemnise same sex marriage
3.03. The consultation sought views on two ways of authorising religious celebrants to carry out same sex marriage and the religious registration of civil partnership. Option 1 was to extend the authorisation of existing celebrants, who could then opt out of same sex ceremonies if they so chose. Option 2 was to set up a new procedure, under which religious bodies could, if they wished, advise the Registrar General which celebrants they would like to be authorised.7
3.04 There was little support for option 1 in the consultation and around 50% of respondents who answered question 17 supported option 2. The Government has decided that a new procedure should be set up to authorise celebrants to carry out same sex ceremonies.
3.05. In addition, the Scottish Government has concluded that an amendment to the Equality Act 2010 is required. The 2010 Act is generally reserved to the UK Government and, as a result, the amendment would need to be made at Westminster, rather than in the Scottish Parliament.
3.06 A draft of the proposed amendment to the 2010 Act is at Annex N. This is an initial draft and could be subject to further changes before legislation is taken through Westminster. The aim of the amendment is to protect celebrants who do not wish to solemnise same sex marriages, even though their religious or belief body has decided generally that they wish to take part.
3.07 The detail of the arrangements for authorising religious and belief celebrants to solemnise same sex marriage is outlined in Annex A. In summary:
- Religious and belief bodies and their celebrants will have to opt in to solemnise same sex marriage.
- Some religious and belief bodies may be prescribed by regulations. This means that all of their celebrants would be authorised to solemnise same sex marriage.
- In other cases, religious and belief bodies could nominate celebrants who wish to solemnise same sex marriage to the Registrar General.
- Bodies prescribed by regulations or which have nominated celebrants to the Registrar General could also seek the temporary authorisation of particular celebrants.
- The draft Bill provides, for the avoidance of doubt, that there is no obligation on a body or celebrant to seek authorisation to solemnise same sex marriage.
- A celebrant who wishes to solemnise same sex marriage but is in a body which has decided against opting in could not solemnise same sex marriage. This is because the authorisation would need to come from the regulations (and the body would not have asked to be prescribed) or from the celebrant's name having been put forward by the body to the Registrar General (and the body would not have done this).
- Schedule 23 to the Equality Act 2010 already has exemptions for religious and belief bodies from some equality requirement where these are imposed because they are necessary to comply with the doctrine of the organisation or to avoid conflict with the strongly held religious or belief convictions of a significant number of the religion's or belief's followers.
- As indicated above, the Scottish Government has asked the UK Government for an amendment to the Equality Act to protect an individual celebrant who is opposed to same sex marriage because it conflicts with the celebrant's religious faith or belief even though the celebrant's religious or belief body has chosen to solemnise same sex marriage.
- The Scottish Government considers that its proposals enable LGBT people of faith to get married, while protecting religious freedom in a proportionate way. We consider that the proposals are in line with the European Convention on Human Rights.
Question 7: Do you have any comments on the proposals for authorising religious and belief celebrants who wish to solemnise same sex marriage?
3.08 It has been suggested by some consultees that there should be a specific opt-out for civil registrars in this legislation. The suggestion is that there should be a provision in this Bill laying down that civil registrars do not have to solemnise same sex marriage.
3.09 The Scottish Government does not agree with this suggestion, for a variety of reasons:
- Civil registrars (unlike religious and belief celebrants) are carrying out a civil function. Therefore, it is not appropriate to provide an opt-out for civil registrars based on religious or belief grounds.
- As indicated in paragraph 3.40 of the last consultation, "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".
- Provision in the Bill relating to civil registrars would cut across the relationship civil registrars have with their employer - the local authority. The Government does not consider it would be helpful to intervene in this way.
3.10 Therefore, the draft Bill at Annex L has no opt-outs for civil registrars.
Question 8. Do you have any comments on opt-outs for civil registrars who do not wish to solemnise same sex marriage?
Freedom of speech
3.11 A major issue raised in relation to the last consultation was freedom of speech. Concerns expressed related, for example, to a teacher or other public servant being disciplined or dismissed for speaking out against same sex marriage and the potential prosecution of a minister of religion for placing on the internet a sermon against same sex marriage. More details of the Government's approach are contained in Annex B. In brief:
- The draft Bill has a provision at section 12 making it clear that the introduction of same sex marriage does not affect existing rights under the European Convention of Human Rights and elsewhere to freedom of thought, conscience, religion and expression.
- The Lord Advocate (who has responsibility for prosecutions in Scotland) intends, in due course, to publish prosecutorial guidelines on allegations of breach of the peace and threatening or abusive behaviour arising out of opposition to same sex marriage.
Question 9. Do you have any comments on the proposed approach in relation to freedom of speech?
3.12 During the last consultation, a number of points were raised in relation to education. In particular, concerns were expressed about teachers being dismissed for offering views against same sex marriage or refusing to use certain teaching materials and about parental rights to withdraw children from certain lessons. The detail of the Government's proposed approach in this area is outlined at Annex C.
3.13 Key points in relation to education are outlined below:-
- There is existing provision in section 9 of the Education (Scotland) Act 1980, allowing parents to withdraw children from religious education. These rights will remain in place.
- Education Circular 2/20018 , issued under section 56 of the Standards in Scotland's Schools etc. Act 2000, sets out a school's responsibilities towards pupils and parents in providing a programme of sexual health education. Parents will continue to have the right to withdraw their child from such a programme.
- However, the Government does not plan to allow parents to opt children out of any class which might happen to mention same sex marriage or civil partnerships. The Government considers that this could impact adversely on a child's right to receive an education.
- The Education (School and Placing Information) (Scotland) Regulations 2012, in force from 8 December 2012, makes provision on how parents will be informed of any sensitive aspects of learning.9
- The Government is committed to continuing to support denominational education. In particular, the Government has made it clear that it welcomes the valued contribution made by Roman Catholic schools to education in Scotland.
- The faith aspects of the curriculum in Roman Catholic schools will continue to be determined by the Scottish Catholic Education Service.
- The Government does not consider legislation is required in relation to education as a result of same sex marriage.
- In particular, the Government does not consider that employment law should be amended to provide specific protection for teachers (or others, such as NHS chaplains10 ) who have concerns about same sex marriage. There is existing UK employment law, which covers matters such as unfair dismissal.11 We consider this provides protection for teachers (and other employees) already.
- The Scottish Government intends to update Education Circular 2/2001, on the conduct of sex education in schools. This update will take account of the introduction of same sex marriage. The Government will consult key stakeholders on changes to Circular 2/2001.
Question 10. Do you have any comments on the proposals in relation to education and same sex marriage?
3.14 The Equality Impact Assessment at Annex K considers the impact on children of our proposals.
3.15 The Government will not ban people who are against same sex marriage from fostering children. The existing guidance12 on who can apply to be a foster parent states that: "As well as diverse family structures, valuing diversity also relates to welcoming applications from families from different ethnic, religious or cultural backgrounds".
3.16 The Government will consider if amendments to the guidance are needed to make it clear that Christians and people of other faiths can apply to become foster parents and that a would-be fosterer should not be rejected just because of his or her views on same-sex marriage.
3.17 On adoption, same sex couples already have the right to adopt. This right will continue following the introduction of same sex marriage.
3.18 No changes are planned to devolved legislation in relation to parental responsibilities and rights (PRRs). However, consequential amendments will be required to (reserved) human fertilisation and embryology legislation which, currently, refers to female civil partners. In future, the legislation will need to cover female same sex spouses, given the introduction of same sex marriage in Scotland.
Other consequentials as a result of same sex marriage
3.19 The Government's intention is that, where possible, opposite sex marriage and same sex marriage should be treated in the same way.
3.20 There have been some comments from stakeholders on potential changes to the wording of legislation as a consequence of same sex marriage. Since 1999, Acts of the Scottish Parliament have, where possible, avoided using gender-specific pronouns and nouns (eg to avoid using "he" or "she" and terms such as "chairman"). The same approach is used for subordinate legislation. In addition, there has been an increasing tendency to use the term "spouse", rather than "husband and wife", which reflects this move to gender-neutral drafting. The Government expects these drafting practices will continue.
3.21 The Scottish Government has considered the impact of the introduction of same sex marriage on existing legislation and on private arrangements (eg wills and contracts) affecting individuals. In considering this, the Government has borne in mind some key principles:-
- Our general approach is that same sex spouses should be treated in the same way as opposite sex spouses.
- However, we recognise that there will be exceptions. For example, the provisions in this Bill on the solemnisation of marriage draw a clear distinction between same sex marriage and opposite sex marriage, to protect religious and belief bodies and celebrants who do not wish to solemnise same sex marriage.
- It is not appropriate for the Scottish Government to make legislation which would impact on private arrangements and documents (eg wills) drawn up and finalised before same sex marriage was introduced. The Government does not know what private individuals intended. If private individuals consider that their personal arrangements need to be updated to reflect the introduction of same sex marriage, then they need to take their own steps to do so.
3.22 As a consequence, the draft Bill makes provision at section 4. This ensures that references in existing enactments to "marriage" between two people or any terms which refer to people who are married to each other (eg terms like "husband and wife") are to be interpreted as meaning both opposite sex and same sex marriage and spouses, unless other provision is made.
3.23 This will apply to enactments (eg Acts of the Scottish Parliament, Acts of Parliament, Scottish Statutory Instruments, Statutory Instrument) which were passed or made before the Bill comes into force and concern devolved matters.
3.24 The Bill cannot make provisions for terms which are in reserved legislation. These could be covered in a consequential amendments order which would be laid in Westminster.
3.25 The Government will conduct a search to identify references in existing enactments which will be captured by the above interpretative provision. The purpose of this search is to identify any references in legislation to which the general provision that references to spouses and marriage should mean both opposite sex and same sex marriage and spouses is not to apply. There may also be a few cases where it will be necessary to make specific amendments to enactments.
3.26 Subsection (9) of section 4 in the Bill inserts a new default definition of "marriage" into Schedule 1 to the Interpretation and Legislative Reform (Scotland) Act 2010. This will mean that, unless the enactment or the context of the enactment otherwise requires, this definition of marriage will apply to any enactments made after the coming into force of this Bill. Again, the default definition will only apply to devolved legislation. Separate provision will be required for reserved legislation.
3.27 The draft Bill also makes provision, at section 4 so that the concept of marriage in the common law is taken as meaning both opposite sex and same sex marriage and spouses.
3.28 The draft Bill provides, at section 4, that any private documents and arrangements (eg contracts and wills) made before the Bill comes into force are not affected by the introduction of same sex marriage. Therefore, the original intention of such documents will continue to apply.
3.29 The draft Bill makes it clear, that any private documents executed after the Bill will be assumed to take account of the introduction of same sex marriage unless those entering into the arrangements make it clear that this is not their intention. This will mean, for example, that where such a document refers to "marriage", this term will be understood to refer to both a same sex marriage and an opposite sex marriage unless the document makes clear that this is not the case.
Question 11: Do you have any comments on the Government's proposals on the impact of same sex marriage on legislation, the common law or on private arrangements?
Question 12: Are you aware of legislation where there is a need to make it clear that references to marriage or spouse should not extend to both opposite sex and same sex marriages or spouses? If you are, please give details of the legislation and explain why it should not extend in this way.
3.30 The Government intends that divorce should be available for same sex married couples in the same way as for opposite sex couples. There are some specific issues in relation to adultery, discussed below.
3.31 As outlined in paragraph 5 of Annex B to the last consultation, irretrievable breakdown of a marriage, to obtain a divorce, may be established by proof that the defender committed adultery. This is now rarely used13.
3.32 The meaning of adultery in Scots common law relates to heterosexual conduct only.
3.33 The Government does not plan to change this. Therefore:-
- A spouse seeking a divorce could still establish that the marriage has irretrievably broken down by providing proof that his or her spouse has committed heterosexual adultery.
- This would be true regardless of whether or not the spouses were in an opposite sex or same sex marriage.
- It will remain possible for a spouse to seek divorce if the other spouse behaves unreasonably. "Unreasonable behaviour" can include sexual conduct that falls outwith the scope of adultery.
- Alternatively, divorce can be obtained after one year's non-cohabitation (where both parties consent to the divorce) or after two year's non-cohabitation (where one of parties objects to a divorce).
Question 13. Do you have any comments on the proposed approach to the law on adultery?
Non-consummation of a marriage
3.34 In England and Wales, non-consummation of a marriage is grounds for seeking a decree of nullity of the marriage. However, this does not form part of the law of Scotland and, therefore, no action is required.
Permanent and incurable impotency
3.35 In Scotland, a marriage is voidable if, at the time of the marriage, one of the spouses is permanently and incurably impotent in relation to the other spouse. The Scottish Government's understanding is that court actions seeking a declarator of nullity of a marriage on the grounds of permanent and incurable impotency are very rare. The Scottish Law Commission, in its report in 1992 on family law, recommended that marriage should not be voidable on the grounds of impotency.14 However, this recommendation has not been implemented15.
3.36 "Impotency" in this context relates to heterosexual conduct. The Government considers that there are arguments for repealing the current rule altogether. However, this would require further consideration. Therefore, the Government proposes that the existing rule should remain for the meantime and should continue to relate to heterosexual conduct only. It will, of course, be possible for a party to a same sex marriage to seek a divorce on other grounds.
Question 14. Do you have any comments on the proposed approach to the law on permanent and incurable impotency?
Polygamy and bigamy
3.37 The Scottish Government has no intention of allowing polygamous marriages to take place in Scotland. The Government has noted, and respectfully agrees with, the comments made by a judge in the British Columbia Supreme Court when he outlined the harms polygamy can cause.16
3.38 In the context of the Scottish Government's overall approach to polygamy, the Government has considered existing relevant legislation. There is some long-standing legislation in Scotland which reflects that other jurisdictions, outwith our control, may allow polygamy. For example, section 2 of the Matrimonial Proceedings (Polygamous Marriages) Act 1972 provides that a Scottish court is not prevented from dealing with a case, or granting an order, because one of the parties is married to more than one person. This provision allows a Scottish court to consider and grant a decree of divorce, even where one or both of the parties is polygamously married.
3.39 In addition, section 7 of the Private International Law (Miscellaneous Provisions) Act 1995 provides that a person domiciled in Scotland does not lack capacity to enter into marriage under the law of another jurisdiction just because that law allows polygamous marriages. The intention of this provision is not to allow people domiciled in Scotland to enter into polygamous marriages. Instead, the intention is that someone domiciled in Scotland should not be stopped from entering into a monogamous marriage overseas if the overseas jurisdiction also allows polygamous marriages.
3.40 Technical legislation of this nature, reflecting that some other jurisdictions allow polygamous marriage, will in future reflect same sex marriage as well as opposite sex marriage. However, as indicated above, the Government has no intention of allowing polygamous marriages to take place in Scotland.
3.41 In this context, the Government has considered the position in relation to criminal offences, such as bigamy.
3.42 In Scotland, the offence of bigamy (marrying when you are already married) is currently a common law offence.
3.43 Section 13 of the Presumption of Death (Scotland) Act 1977 introduced a defence to a charge of bigamy. Section 13 provides:
" It shall be a defence against a charge of bigamy for the accused to prove that at no time within the period of seven years immediately preceding the date of the purported marriage forming the substance of the charge had he any reason to believe that his spouse was alive."
3.44 Section 100 of the Civil Partnership Act 2004 makes it an offence in Scotland for a person to register as a civil partner when he or she knows that he or she, or his civil partner, is already married or in a civil partnership with somebody else. A person guilty of an offence under section 100 is liable, on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or both and on summary conviction to imprisonment not exceeding three months or to a fine not exceeding level 3 on the standard scale or both.
3.45 The Government's intention is that:
- Entering into a same sex marriage when you are already married (whether to someone of the same sex or opposite sex) should be an offence.
- It should also be an offence to enter into an opposite sex or same sex marriage when you are already in a civil partnership with someone else.
- The defence in section 13 of the 1977 Act should extend to persons who have entered into a same sex marriage and to persons who have entered into a civil partnership.
- It should continue to be an offence to enter into a civil partnership when you are already married or in a civil partnership.
3.46 As indicated above, bigamy is a common law offence in Scotland. Common laws offences attract a maximum penalty of life imprisonment. By contrast, as also indicated above, entering into a civil partnership when a person is already married or in a civil partnership attracts a maximum penalty of 2 years.
3.47 The Government considers it would be preferable to introduce standard penalties across these offences generally. To achieve this, we intend to make bigamy a statutory offence. The penalties will be, on conviction on indictment, imprisonment for a term not exceeding 2 years or to a fine or both and, on summary conviction, imprisonment not exceeding three months or to a fine not exceeding level 3 on the standard scale or both. Section 5 of the Bill makes relevant provision.
Question 15. Do you have any comments on the proposed approach to the law on bigamy?
3.48 It appears that under Scots law there may still be limited defences for wives from the charge of reset (handling stolen goods). The Scottish Government considers any such defence to be based on an antiquated view of the roles of spouses, does not intend to make this defence available to same sex spouses and will consider if the defence could be abolished altogether.
Compellability of spouses as witnesses
3.49 The law in this area changed recently. The Criminal Justice and Licensing (Scotland) Act 2010 amended section 264 of the Criminal Procedure (Scotland) Act 1995 to provide that a spouse or a civil partner is a competent and compellable witness. The Government intends that this provision should extend to same sex spouses.
Recognition of same sex marriages from elsewhere
3.50 The Scottish Government would intend to recognise any same sex marriages which have been registered elsewhere in the UK just as Scots law recognises opposite sex marriages registered in England and Wales and Northern Ireland. The Scottish Government will discuss further with the UK Government and the Northern Ireland administration the recognition across the UK of same sex marriages registered in Scotland.
3.51 Whether Scots law considers opposite sex marriages to be formally valid is currently set out in section 38 of the Family Law (Scotland) Act 2006.
3.52 Section 38 says that whether an overseas marriage has formal validity in Scots law depends upon the law of the place where the marriage took place. A person's capacity to marry and whether or not the person consented are determined by the law of that place, but that is not the case where a decision on capacity would be contrary to Scottish public policy. Section 4 of the Bill ensures that section 38 will, in the future, apply to overseas same sex marriages as well as opposite sex marriages.
3.55 This means that the current provisions in the Civil Partnership Act 2004 about recognition of overseas same sex relationships as civil partnerships need to be amended, to omit from the provisions overseas marriages which will be dealt with by section 38 of the 2006 Act. The relevant provisions of the 2004 Act are section 212 to 218 and Schedule 20. To be recognised as a civil partnership in the UK, an "overseas relationship" must be registered and must either meet general conditions (laid down in section 214) or must be one of the specific overseas relationships specified in Schedule 20 to the 2004 Act.
3.56 UK Ministers, with the consent of the Scottish Ministers and the Northern Ireland Department of Finance and Personnel, may make an order to amend the list of relationships in Schedule 20. An order updating Schedule 20 has just been prepared.
3.57 As outlined above, in future, the Scottish Ministers intend that overseas same sex marriages will be recognised in Scotland in the same way as overseas opposite sex marriages. Therefore, the draft Bill amends the Civil Partnership Act 2004 so that the provisions of that Act about recognition of overseas same sex relationships will only cover, in relation to Scotland, overseas civil partnerships and civil unions.
3.58 This means that overseas same sex marriages will be recognised in Scotland as marriages and overseas registered civil partnerships will be recognised in Scotland as civil partnerships.
Recognition of same sex marriage outwith the United Kingdom
3.59 Recognition overseas of same sex marriages entered into in Scotland is a matter for the overseas jurisdictions concerned. This is not something that the Scottish Parliament has power to legislate about. However, the Scottish Government will work with the UK Government to promote recognition overseas.
Survivor benefits in pensions
3.60 Paragraph 18 of Schedule 9 to the Equality Act 2010 contains an exemption for equality requirements in relation to a right to a benefit, facility or service which accrued before 5 December 2005 or which is payable in respect of periods of service before 5 December 2005.
3.61 This means that survivor benefits for civil partners can be based on service from 5 December 2005 (when the Civil Partnership Act 2004 came into force). However, civil partners of members of contracted out schemes (i.e. contracted out of the State Second Pension) are eligible for survivor benefits based on their partner's service from 6 April 1988.
3.62 Under the Scotland Act 1998, occupational pensions are a reserved matter and so decisions in this area are for the UK Government. The Scottish Government will discuss further with the UK Government.
3.63 The Scottish Ministers do have executively devolved powers in relation to the main public sector pension schemes in Scotland (ie those for local government, fire, teachers, police and the NHS). We will consider further the implications of same sex marriage for these schemes and whether any legislation is necessary in this area.