Publication - Consultation paper

Future of civil partnership: consultation

Published: 28 Sep 2018

This consultation seeks views on the options for the future of civil partnership in Scotland.

Future of civil partnership: consultation
Annex D: Extension of civil partnership to opposite sex couples in other jurisdictions

Annex D: Extension of civil partnership to opposite sex couples in other jurisdictions

Introduction

1. The term "civil partnership" is used in Scotland and in the United Kingdom as a whole. Other countries use different terms, such as "civil union", "domestic partnership" or "registered partnership". The terms used below, where possible, reflect the English language terminology used by the governments of the various jurisdictions in relation to their own systems of civil union.

2. The table below sets out key details of some jurisdictions where civil partnership (or similar) and marriage are both available to opposite sex and same sex couples.

Jurisdiction

Route to opposite sex civil partnership

Belgium

Same sex marriage was introduced in Belgium in 2003. In 2000, "cohabitation légale" was introduced for both opposite sex and same sex couples. Both options remain available to same sex and opposite sex couples.

Brazil

União Estável (stable union) is available to opposite sex and same sex couples. Marriage has been an option for same sex couples since May 2013.

France

The Pacte Civil de Solidarité (civil solidarity pact) or PACS was established in 2000 for both opposite sex and same sex couples. Marriage has been open to opposite and same sex couples from 18 May 2013.

Isle of Man

UK civil partnerships have been recognised in the Isle of Man since their introduction for pension purposes. In 2011, an Act of the Manx Parliament introduced civil partnership. In 2016, a further Act introduced opposite sex partnership and same sex marriage.

Luxembourg

Same sex marriage was introduced on 1 January 2015. Partenariats (similar to French PACS) became available on
1 November 2000 for opposite sex and same sex couples, and remain in place.

The Netherlands

The Netherlands introduced same sex marriage in 2001. Registered partnerships for both opposite sex and same sex couples were introduced in 1998 and remain available.

New Zealand

Civil unions for both opposite sex and same sex couples were introduced in 2005 and remain available. Same sex marriage was introduced in 2013. De facto relationships are also recognised.

South Africa

The Civil Union Act 2006 made two types of civil union available: civil partnerships for both opposite sex and same sex couples, and marriages for same sex couples.

Uruguay

Uruguay has had Unión Concubinaria [cohabiting union] law in place since 2008. This allows couples, both opposite sex and same sex, who have been cohabiting for at least five years to register their relationship. Same sex marriage was introduced in 2013.

Extension in other jurisdictions: some examples

France

3. The French PACS was introduced in October 1999, and is open to same and opposite sex couples. At heart it is a contract between two parties that undergoes a court authentication process. Same sex marriage was introduced 14 years later, in May 2013.

4. French statistics [57] on marriage and PACS are below.

Year Marriages PACS
Opposite sex Same sex Total Opposite sex Same sex Total
1999 293,544 293,544 3,551 2,600 6,151
2000 305,234 305,234 16,589 5,412 22,271
2001 295,720 295,720 16,603 3,232 19,629
2002 286,169 286,169 21,683 3,622 25,305
2003 282,756 282,756 27,276 4,294 31,570
2004 278,439 278,439 35,057 5,023 40,080
2005 283,036 283,036 55,597 4,868 60,462
2006 273,914 273,914 72,276 5,071 77,347
2007 273,669 273,669 95,772 6,206 101,978
2008 265,404 265,404 137,766 8,194 145,960
2009 251,478 251,478 166,192 8,437 174,629
2010 251,654 251,654 196,405 9,145 205,550
2011 236,826 236,826 144,714 7,499 152,213
2012 245,930 245,930 153,715 6,975 160,690
2013 231,225 7,367 238,592 162,609 6,083 168,692
2014 230,770 10,522 241,292 167,469 6,262 173,731
2015 228,565 7,751 236,316 181,930 7,017 188,947
2016 225,612 7,113 232,725 184,425 7,112 191,537
2017 [58] 221,000 7,000 228,000 * * *

*Figures not yet available.

5. The above shows that in recent years demand for same sex PACs and marriage has been at around the same level. However, as demand for opposite sex marriage has generally fallen since 1999, demand for opposite sex PACS has increased approximately fifty-fold. For every opposite sex PACS, there are 1.2 opposite sex marriages.

Netherlands

6. Registered partnerships were introduced to the Netherlands on 1 January 1998 for opposite sex and same sex couples. A few years later on 1 April 2001, same sex marriage became available.

7. Key statistics [59] from the Netherlands are set out in the table below.

Year Marriages Registered partnerships
Opposite sex Male couples Female couples Total same sex Opposite sex Male couples Female couples Total same sex
2015 62,912 647 749 1,396 12,331 202 239 441
2016 63,813 655 771 1,426 15,090 286 330 616
2017 63,027 620 755 1,375 17,194 316 356 672

8. The number of opposite sex and same registered partnerships has increased by, respectively, 39% and 52% in the period 2015 to 2017, with the number of opposite and same sex marriages experiencing only minor fluctuations in the same period.

New Zealand

9. The Civil Union Act 2004 introduced civil unions for same sex and opposite sex couples at the same time, on 26 April 2005. Same sex marriage was introduced on 19 August 2013. Generally civil unions and marriages enjoy the same benefits.

10. De facto relationships were also introduced in 2005. These are open to same and opposite sex couples whose relationship meets certain statutory criteria. De facto relationships largely have the same benefits as a marriage or civil partnership.

11. Figures from New Zealand [60] are below.

Year Marriages Civil union
Opposite sex Same sex Total Opposite sex Same sex Total
2005 22,515 22,515 45 204 249
2006 23,445 23,445 48 297 275
2007 23,448 23,448 63 252 315
2008 23,919 23,919 69 255 327
2009 23,682 23,682 66 246 312
2010 23,136 23,136 72 201 273
2011 22,431 22,431 69 234 300
2012 22,944 22,944 69 234 303
2013 21,297 354 21,654 66 120 186
2014 22,146 876 23,025 30 21 51
2015 21,909 882 22,974 39 18 57
2016 22,203 933 23,136 33 18 48
2017 22,773 960 23,730 57 21 81

12. The figures above show that there is generally a preference for marriage across same and opposite sex couples. For example, in 2017, for each same sex civil union, there were 80 same sex marriages; for every opposite sex civil union, there were 340 opposite sex marriages. On average, for every civil union, there were 292 marriages.

South Africa

13. The 2004 South African Act that introduced same and opposite sex civil partnerships and same sex civil marriages was the result of a 2005 judgment from the Constitutional Court which found that the common law definition of marriage as being that of an opposite sex couple was unconstitutional.

14. The Court provided Parliament with a year to cure this defect through legislation, which it duly did through the Civil Union Act 2004. Civil partnerships and marriages in terms of the 2004 Act are jointly termed "civil unions". Opposite sex marriages are called "civil marriages".

15. From 2000, when the Recognition of Customary Marriages Act 1998 came into force, South Africa has also given legal recognition to marriages in terms of the usually uncodified legal systems of indigenous South African communities. The 1998 Act does not use gender-specific language but the underlying legal systems appear not to include same sex marriages. This type of marriage is called a "customary marriage".

16. Figures from South Africa [61] are below.

Year Civil marriages Customary marriages Civil unions [62]
2003 178,689 17,283 -
2004 176,521 20,301 -
2005 180,657 19,252 -
2006 184,860 14,039 -
2007 183,030 20,259 80
2008 186,522 16,003 732
2009 171,989 13,506 760
2010 170,826 9,996 888
2011 167,264 5,084 867
2012 161,112 4,555 987
2013 158,642 3,498 993
2014 150,852 3,062 1,144
2015 138,627 3,467 1,185
2016 139,512 3,978 1,331

17. The civil unions figure encompasses three types of relationship: same sex and opposite sex civil partnerships, and same sex marriages. Therefore, it is difficult to identity opposite sex couples' preferred type of union from the figures above. That said, generally it appears that demand for both civil and customary marriages is decreasing and demand for civil unions is increasing. However, there is still proportionally a significant gap between the two: for every civil union entered into in 2016, there were 105 civil marriages.

18. South Africa is the only country in the African continent to have same sex marriages and civil unions. As there is no residence requirement to enter into either union in South Africa, the figures above may reflect marriage or civil union tourism to South Africa from the wider region.


Contact

Sarah.Meanley@gov.scot