Option of extending civil partnership to mixed sex couples
45. Under the option of extending civil partnerships to mixed sex couples, mixed sex civil partnerships would be formed and dissolved in the same way as same sex civil partnerships and the rights and responsibilities of mixed sex civil partners would generally be the same as for same sex civil partners. Eligibility criteria for entering a mixed sex civil partnership would reflect the criteria for entering a same sex civil partnership.
46. There is little hard evidence on the demand for mixed sex civil partnerships in Scotland, but examples from other countries suggest that demand is likely to be low.
47. This option is likely to require more legislative changes than the option to stop registration of civil partnerships. Legislation to allow mixed sex civil partnerships could be taken forward by primary legislation (a Bill in the Scottish Parliament). It would also be possible for the necessary changes to be made by a remedial order under the Convention Rights (Compliance) (Scotland) Act 2001, or potentially via co-operation with the UK Government on a legislative solution to the matter.
48. Extension of civil partnership has costs and savings implications in a number of areas, including registration, legal aid, pensions and social security as summarised in the consultation paper.
49. The consultation paper set out the following arguments for and against the option of extending civil partnerships to mixed sex couples:
50. Arguments for this option:
- It is inherently fair and equitable for civil partnerships and marriage to be available to both mixed and same sex couples.
- Civil partnership does not include the societal expectations faced by women in the context of marriage or the wedding ceremony. Such expectations include wearing white, being given away, and the wedding celebrations being led by men.
- Limited demand is irrelevant: rather, it is crucial and necessary for the law to be fair.
- Marriage is seen by some as old fashioned, religious and patriarchal. The option to enter into a civil partnership will permit those who feel this way to make a commitment to their partner while avoiding these connotations.
- For people who have been unhappily married in the past, a mixed sex civil partnership might be perceived as an opportunity to form a union without risk of a similar experience, and without negative connotations.
- Civil partnership will be an opportunity for people who have been married in the past and are not able to remarry on religious or ethical grounds.
- Entering into a civil partnership would no longer result in couples effectively outing themselves as civil partnership is only available to same sex couples (if it is known that a couple has formed a civil partnership, it is then currently known that the relationship must be a same sex one).
- There would be fewer administrative burdens on transgender people who are in civil partnerships when they obtain gender recognition: they would simply be able to stay in the civil partnership.
- Cost and complexity may not be that significant.
51. Arguments against this option:
- Marriage is the established, long-standing arrangement through which mixed sex couples make a lifelong commitment to each other and receive certain legal protections. An alternative option is not required.
- Generally, the legal effect, benefits and implications of marriage and civil partnership are the same for civil partners and the married. There is little or no additional benefit to be gained by making civil partnerships available to mixed sex couples.
- Evidence from other countries indicates that demand in Scotland for mixed sex civil partnership would be low, with the majority of mixed sex couples preferring to marry where both options are available.
- The costs inherent to the introduction of mixed sex civil partnership do not appear to be justified in the light of likely demand for it.
- The recognition of mixed sex civil partnership elsewhere in the UK and overseas is likely to be limited. This may have adverse consequences in relation to legal presumptions that flow from marriage status in other jurisdictions. This could impact on matters such as parentage, next of kin status and succession.
- Mixed sex civil partnership is perceived by some as requiring less commitment than marriage and, in consequence, as less likely to result in long-standing, stable unions. That would be particularly detrimental to any children of these unions and, by extension, to wider society.
- It is possible that society's understanding of mixed sex civil partnership might also be limited.
- It could prompt mixed sex civil partnership tourism to Scotland, with couples left uncertain as to their status in their own countries.
- If cohabitants prefer not to marry, they already benefit from some rights in Scots law.
- Civil partnership is more attractive to people who feel that marriage is an old fashioned, religious or patriarchal institution. However, civil or belief marriage ceremonies are available at present and are widely used.
- Mixed sex civil partnership would increase complexity.
- It would increasingly undermine marriage.
52. The consultation asked three questions specifically about the option of extending civil partnerships to mixed sex couples:
Question 5. We have explained what opposite sex civil partnership would look like. Do you have any comments on this?
If yes, please outline your comments.
Question 6. Are you aware of any other arguments for extending civil partnership to opposite sex couples?
If yes, please outline these arguments.
Question 7. Are you aware of any other arguments against extending civil partnership to opposite sex couples?
If yes, please outline these arguments.
The case for extending civil partnership to mixed sex couples
53. Respondents who were broadly supportive of the extension option typically cited equality, diversity, inclusivity, freedom of choice, access to rights and responsibilities, family security, and Scotland’s image as a progressive nation as key considerations in their answers. A number of individual respondents indicated that they wished to enter into a mixed sex civil partnership, and a number of organisations supported the view that there would be demand for mixed sex civil partnerships.
54. The consultation raised a few new points or arguments in support of extending civil partnerships to mixed sex couples:
- Gender recognition
A consultee noted that “We recognise there to be a further benefit for trans people in extending civil partnership to mixed-sex couples. Trans people who wish to enter in to a civil partnership with a same-sex partner would currently be unable to do so without a Gender Recognition Certificate … extending the option for civil partnership to all would lessen the complications trans people face in relation to the conflicts between legal gender recognition and civil partnership.”
- The advantages of civil partnership for women
The consultation paper noted that one argument for civil partnership was that some women may not wish to marry as the institution of marriage may be seen as patriarchal and some women may reject traditional societal expectations of women at wedding ceremonies. A number of respondents also made similar points.
One respondent suggested that economic gender inequality can mean that women are at risk of being affected by the absence of legal rights more than men. Mixed sex civil partnership will provide women with expanded access to the rights and protections that stem from a legally recognised relationship.
- Death benefits in pensions
The Pensions Advisory Service noted that:
“Since Walker v Innospec [a court case on death benefits in pensions and same sex couples], same sex Civil Partners and same sex surviving spouses are now entitled to the same Death Benefits as widows. This usually includes backdating of pensionable service to 1978, as compared to the previous backdating of service only to 2004.
Widowers are currently entitled to service only backdated to 1988.
It is not clear to us whether surviving opposite sex partners would receive death benefits at the same level as widows regardless, or on the basis of their gender.
If death benefits are paid out to opposite sex civil partners on the same basis as widows, and same sex civil partners, then it may be more beneficial for some in opposite sex marriages to be in civil partnerships instead.
If death benefits are paid out to opposite sex civil partners on the basis of their gender, this may be a cause for future disputes in the courts as beneficiaries seek equality with same sex civil partners and widows.”
- Promotion of family stability
It was argued that if civil partnerships are taken up by some of the substantial number of unmarried mixed sex couples with children, then this would promote family stability as well as offering benefits to wider society.
- Fewer constraints for bisexual people
Some comments highlighted that extending civil partnerships to mixed sex couples would ensure that for bisexual people, the sex of their partner would not have to play a role in determining whether they enter into a marriage or civil partnership.
- Objection to the widespread unavailability of marriage for same sex couples
One argument presented was that civil partnership would offer an alternative for mixed sex couples who object to marriage on the grounds that it is still unavailable to same sex couples in many parts of the world.
- Demand may increase
Some comments argued that even if the demand for civil partnerships was initially low, this would be likely to increase in the future as they become better established.
The case against extending civil partnership to mixed sex couples
55. Those who presented arguments against extending civil partnerships to mixed sex couples tended to state that it would be purposeless since civil partnership does not differ significantly from marriage and cohabiting couples already benefit from many rights (more so than in England and Wales). Responses also echoed the argument that mixed sex civil partnerships would introduce unnecessary complexity.
Some also said mixed sex civil partnership were a threat to marriage and to family values.
56. In addition, some responses also suggested that civil partnerships were created as an unsatisfactory compromise used to suppress the campaign for marriage equality at a time when same sex couples were not allowed to marry, and that they are now an unnecessary reminder of this past inequality. This argument was also presented as a reason to close civil partnerships from a date in the future.
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