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 H: Draft Business and Regulatory Impact Assessment (BRIA)

Annex H: Draft Business and Regulatory Impact Assessment (BRIA)

Title of Proposal

The future of civil partnership

Purpose and intended effect

  • Background

    The UK Supreme Court has declared that the Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights ( ECHR) in that civil partnership is currently only open to same sex couples. The Scottish Ministers are now required to consider the future of civil partnership in Scotland.

    This BRIA considers two possible options in relation to civil partnership:

    • option 1: repeal, meaning that no more new civil partnerships would be entered into from a date in the future.
    • option 2: extension, meaning the introduction of opposite sex civil partnership.
  • Objective

    The objective is to set out the two options for the future of civil partnership in Scotland following the UK Supreme Court declaration of non-compatibility, and to seek views on these options.

  • Rationale for Government intervention

    The Scotland Act 1998 requires the Scottish Ministers not to act in a way that contravenes ECHR rights. Civil status is a devolved matter. Consequently, the Scottish Ministers must now act to remove the unlawful discrimination from the existing legislation where it relates to Scotland. This could be achieved by a Bill in the Scottish Parliament, a remedial order under the Convention Rights (Compliance) (Scotland) Act 2001 or a Westminster Bill.

Consultation

  • Within Government

    In preparing this consultation, the Scottish Government's Family Law team have worked closely with the Equality Unit, Benefits Division and Analytical Services. We have also consulted National Records of Scotland and the Scottish Public Pensions Agency on the possible impact the introduction of opposite sex civil partnership could have on, respectively, registration and survivor benefits in pensions.

  • Public Consultation

    This draft BRIA forms part of a full public consultation.

    We will meet with external stakeholders to discuss the options presented in this consultation during the consultation period.

  • Business

    The Scottish Government carried out three face to face interviews when we consulted on the review of civil partnership in 2015 [67] .

Options

This BRIA outlines two possible options for the future of civil partnership:

  • no more new civil partnerships to be entered into (option 1: repeal)
  • the introduction of opposite sex civil partnership (option 2: extension)

Sectors and groups affected

Sectors and groups who could be affected are as follows:

  • Couples seeking to enter into a legally recognised relationship
  • Local authority registrars.
  • Religious or belief bodies involved in the registration of civil partnership and the solemnisation of marriage.

Benefits

Option 1: repeal

Opposite sex couples and same sex couples would have the option of marriage. There would be no new civil partnerships registered in Scotland.

However, there would continue to be existing civil partnerships as there would be no obligation on existing civil partners to change. Scotland would continue to recognise civil partnerships from elsewhere in the UK and overseas.

Option 2: the introduction of opposite sex civil partnerships

This would give opposite sex couples and same sex couples the option to marry or enter into a civil partnership.

Costs

There would be no capital expenditure in relation to any of the options.

Option 1

Option 1 (repeal) would reduce complexity. There might be some modest savings ( e.g. reduction in the number of forms) but these are unlikely to be significant.

Therefore, the Government expects that any total savings from this option are unlikely to be more than £100,000 in total.

Option 2

General

Option 2 (extension) would lead to two types of costs: registration processes, and rights and responsibilities.

Registration process costs

These costs would be one-off as they would relate to required changes to IT systems and forms, and to training and familiarisation. They could be kept down as the registration of opposite sex civil partnership would be along the same lines as the registration of same sex civil partnership.

Based on experience with same sex marriage, the Government estimates that costs in relation to registration would be along the following lines:

Costs for NRS for IT systems and forms: £200,000 in total.

Costs for local authorities for familiarisation and training: £200,000 in total.

If opposite sex civil partnership were to be introduced, couples would be charged fees to cover the cost of registration. These fees would be set at the same level as fees for entering into a same sex civil partnership [68] .

Rights and responsibilities costs

On-going costs in relation to the introduction of opposite sex civil partnerships would depend on take-up. Furthermore, these costs would be influenced by source of the take-up: couples who would have married if that was the sole option, or couples who otherwise would not have married while civil partnership was not available to opposite sex couples.

If take-up is by couples who would have married anyway, there would be no on-going costs in relation to opposite sex civil partnership as the couples would have obtained rights and responsibilities anyway through the marriage route.

If take-up is by couples who would not have married anyway ( e.g. by cohabitants who do not want to marry but do wish to enter a registered relationship), there would be costs.

The Scottish Government is not aware of firm evidence of likely take-up of opposite sex civil partnership.

Therefore, the figures below consider the costs likely to arise from three differing take-up possibilities: A (zero or nominal increase), B (1% increase), and C (10% increase).

A. Zero or nominal increase in the number of registered opposite sex relationships

If the number of registered opposite sex relationships does not increase, there would be no costs arising from option 2 in relation to rights and responsibilities. In this scenario, the number of registered relationships would be the same (although the type of relationship would differ), meaning that the same number of couples as before would gain rights and responsibilities. This scenario reflects, for example, experiences in New Zealand, where comparatively few couples have chosen to enter into an opposite sex civil union where marriage is also available. [69]

B. 1% increase in the number of registered opposite sex relationships

There could be a very small increase in the number of registered opposite sex relationships. We have calculated the number of marriages that this could involve based on figures from 2017. There were 28,440 marriages in Scotland in that year, of which 27,458 were opposite sex. [70]

If the total number of registered opposite sex unions in Scotland increased by 1% following the introduction of opposite sex civil partnership, there would be an additional 275 registered unions.

There are calculations below on what this might mean in terms of costs.

C. 10% increase in the number of registered opposite sex relationships.

There could be a more significant take-up of opposite sex civil partnerships. This has happened in the Netherlands where, in 2017, around 21% of all opposite sex registered unions were civil partnerships rather than marriages. [71]

As indicated above, there were 27,458 opposite sex marriages in Scotland in 2017. If the total number of registered opposite sex unions in Scotland increased by 10% following the introduction of opposite sex civil partnership, there would be an additional 2,746 registered unions.

There are calculations below on what this might mean in terms of costs.

Public sector pension schemes

Pensions policy is a reserved matter for the UK Government, although there are some devolved public sector pension schemes in Scotland. [72]

There are some differences between civil partners and married couples in relation to survivor benefits in the pensions. The key difference is that the member service used to calculate female spouse survivor benefits from an opposite sex marriage is not restricted. The Government assumes that survivor benefits for opposite sex civil partners would be aligned with survivor benefits for same sex civil partners (following the example of same sex spouses, which were aligned in a similar way).

Total survivor benefits in the five devolved public sector schemes are around £175 million a year. This is based on the following estimates of current survivor benefits paid:

NHS: £59 million (in 2013/14)
Local Government: £48 million (in 2013/14)
Teachers: £42 million (in 2013/14)
Police: £19 million (in 2012)
Fire: £4 million (in 2012)

A 1% increase would suggest total costs to the devolved public sector schemes of £1.75 million a year (in the longer term).

A 10% increase would suggest total costs to the devolved public sector schemes of £17.5 million a year (in the longer term).

However, there are two factors which suggest that costs of this nature may not be at these levels following the introduction of opposite sex civil partnership. These factors are outlined below.

First of all, there is no guarantee that the number of registered opposite sex relationships would increase following any introduction of opposite sex civil partnership. Take up of opposite sex civil partnership may be low. And couples entering opposite sex civil partnership may have married if opposite sex civil partnership had not become available.

Secondly, the devolved public sector schemes often already provide benefits for opposite sex cohabitants (which are generally linked to those benefits paid to civil partners). These particular benefits are conditional on meeting certain conditions such as financial interdependency, cohabiting, being free to marry and completing the necessary partner nomination form. In short, cohabitants who would enter into an opposite sex civil partnership may, in some circumstances, already be entitled to pension benefits.

Therefore, people who would be likely to receive benefits as opposite sex civil partners would also be likely to receive the benefits as spouses or as nominated beneficiaries even if opposite sex civil partnership were not introduced.

As a result, the cost of their benefits could be a displaced existing cost rather than a new additional cost.

There are also various uncertainties.

For example, it is possible that an increase in the number of registered opposite sex relationship might be greater than 10%.

Not all the costs will occur at the same time. People marry, retire and die at different ages. Therefore, any additional costs would occur at different times, be spread over different periods and be for the longer term.

If a scheme member decides not to marry but to register an opposite sex civil partnership, that could result in a saving to the scheme. The resulting survivor benefit might be calculated using restricted service.

In some cases the person who was not the member of the pension scheme will die before their partner so there would never be any survivor benefit.

Around 1 in 3 of these additional unions are likely to result in dissolution/divorce [73] .

In conclusion, therefore, the Scottish Government is of the view that the introduction of opposite sex civil partnership would be unlikely to lead to the costs to the devolved public sector schemes which are shown above. It would appear that most costs which could arise would be displaced existing costs rather than new additional costs.

Regular scheme valuations identify both the on-going costs of the schemes and the contributions required to meet scheme liabilities going forward. It is estimated that introducing opposite sex civil partnerships would not have a material impact on either the costs of the scheme or contribution rates.

Equalisation of survivor benefits

Section 16 of the UK Marriage (Same Sex Couples) Act 2013 required the UK Government to conduct a review of survivor benefits. This review found:

  • The capitalised cost of removing differences in survivor benefits between opposite sex surviving spouses, same sex surviving spouses and surviving civil partners in public sector pension schemes is around £2.9 billion (for the UK as a whole).
  • The estimated costs to private sector schemes of removing these differences is around £0.4 billion (for the UK as a whole).
  • Removing differences in survivor benefits provided to surviving same sex spouses and civil partners on the one hand and those provided to opposite sex widows on the other is estimated to have a capitalised cost of around £0.08 billion to the public service schemes).
  • The estimated cost to private sector schemes of removing these differences is around £0.1 billion. [74]

In addition, in Walker v Innospec Limited, the UK Supreme Court determined [75] that benefits for same sex spouses should be provided on the same basis as currently exists for opposite sex spouses, and the existing exemptions in the Equality Act 2010 were incompatible with EU Directive 2000/78/ EC and should therefore be disapplied. The implications of this for both devolved and reserved pensions are still being considered. The terms of this BRIA where they relate to benefits for surviving same sex spouses should be understood in this context.

Legal aid

There could potentially be costs for the Scottish Legal Aid Board in relation to the dissolution of opposite sex civil partnerships. These are discussed further in the legal aid section below.

Scottish Firms Impact Test

The work carried out for this BRIA does not suggest that there would be a significant impact on firms in Scotland. The only significant impact might arise in relation to survivor benefits in pension schemes for opposite sex civil partners.

Competition Assessment

There is no impact on competition. Marriage and civil partnership ceremonies should not be carried out for profit or gain.

Test run of business forms

There would be no new forms for business.

If option 1 (repeal) were chosen, there would be a reduction in the number of forms used by local authority registrars and couples as the option of entering a civil partnership would no longer be available. As a result, there would no longer be any need for the civil partnership notice form or civil partnership schedule.

If option 2 (extension) were chosen, some amendments might be needed to a number of forms used by local authority registrars, couples and pension providers.

Legal Aid Impact Test

There could be costs to the Scottish Legal Aid Board ( SLAB) if legal aid is needed to cover the dissolution of opposite sex civil partnerships.

Around one in three marriages end in divorce in Scotland. There are around 30,000 marriages a year; 10,000 divorces. We assume the dissolution rate for opposite sex civil partnerships would be about the same.

The majority of divorces [76] and dissolutions [77] are dealt with in the local Sheriff Court. Typically, around 60% of these are handled through the simplified procedure, which can be used where there are no children under 16 and no financial issues to be sorted out between the spouses. [78] The procedure is straightforward and therefore has few legal aid implications. The remaining 40% of divorces and dissolutions may implications for legal aid.

The Scottish Legal Aid Board has introduced cost limitations on grants of civil legal aid. [79] For divorce/dissolution in the sheriff court, the case cost limit (which can be increased on cause shown) is £6,000.

The likely number of dissolutions, the number of dissolutions and divorces with implications for legal aid, and case cost limits can be taken into account when examining the implications for legal aid of the various possibilities for take up of opposite sex civil partnership.

No increase in opposite sex unions

If there is no increase in the number of opposite sex unions, there would no additional costs to SLAB, although there could be a shift in the proportion of legal aid needed for the dissolution of civil partnerships if opposite sex couples decide to enter into civil partnerships rather than marry.

Similarly, there are no implications for case costs.

1% increase in opposite sex unions

With a 1% increase in opposite sex unions, there could be 92 additional dissolutions (one third of 275). If we assume that, as with existing divorces, 40% of those 92 dissolutions might have legal aid implications, this means that there would be an additional 37 dissolutions with a possible impact on SLAB.

For case costs, with a 1% increase in registered opposite sex unions, £6,000 multiplied by 37 produces a figure of £222,000.

10% increase in opposite sex unions

With a 10% increase, there could be 915 additional dissolutions (one third of 2,746). Again, based on the assumption that 40% of those 915 dissolutions would have legal aid implications, this means that there would be an additional 366 cases with a possible impact on SLAB.

For case costs, with a 10% increase in registered opposite sex unions, £6,000 multiplied by 366 produces a figure of £2,196,000.

Unknown factors

However, there are some matters which could have an impact on these calculations that we have not been able to take into account.

  • Not everybody is entitled to legal aid. In these calculations, we have assumed that one member of the couple obtains legal aid and the other does not.
  • We have also assumed that these couples would not otherwise have been involved in litigation to resolve rights/responsibilities regarding children and/or property on the break-up of their relationship.
  • We have assumed that maximum sum available for case costs would be used.
  • If the increase in opposite sex unions is a one-off ( e.g. because of pent-up demand), these figures would be a one-off, as legal aid costs in relation to a dissolution only occur once. However, if the increase in opposite sex unions is permanent, they would be an annual figure, as there would eventually be dissolutions from each year's increased number of opposite sex registered unions.
  • In addition, there is provision in section 28 of the Family Law (Scotland) Act 2006 on financial provision where cohabitation ends otherwise than by death. Legal cases here can attract legal aid. If opposite sex cohabitants move to civil partnership any eventual legal aid cases might just become dissolution cases rather than financial provision on the end of cohabitation.
  • Couples are likely to dissolve their partnerships at different times. Therefore, the estimated additional costs will occur at different times.
  • There is no certainty on what future dissolution rates will be.
  • Scotland has a marriage and civil partnership tourism business. Therefore, if opposite sex civil partnership were introduced, a number of the opposite sex civil partners may not remain in Scotland and will not access legal aid.

Enforcement, sanctions and monitoring

If option 1 (repeal) were selected, there would be no change to current arrangements.

If option 2 (extension) was selected, there would be some changes to the work carried out by registrars (although overall procedures would remain the same) and some changes to the national IT system used by registrars. The Government would discuss these changes with National Records of Scotland ( NRS) and local authority registrars. The Government would also discuss the need for additional guidance with NRS and local authority registrars.

There would also be an impact on religious and belief bodies taking part in the registration of civil partnership and the Government and NRS would discuss issues arising with them.

In line with usual practice, NRS would work closely with registrars and provide central guidance as needed.

Implementation and delivery plan

Option 1 (repeal) would require a Bill in the Scottish Parliament, remedial order or a Westminster Bill. To ensure that no disruption was caused to planned civil partnerships, there would be a lead-in period between the legislation passing and coming into force, potentially two years.

There would also be a need to revoke or amend regulations on the registration of civil partnerships in Scotland, as these would no longer be needed. The provisions that govern the rights and responsibilities of civil partnerships and dissolutions would be left in place as they will continue to govern civil partnerships created before the lead-in period ends.

Option 2 (extension). This option would require primary legislation in the Scottish Parliament, a remedial order, or a Westminster Bill. Extension would also affect reserved legislation, requiring section 104 order to amend this legislation as needed. Existing references to civil partnerships in existing legislation would require review in order to ensure that the provisions would operate effectively for opposite sex civil partnerships. Where that would not be the case, amending legislation would be needed.

Post-implementation review

The Government would monitor the impact of any new legislation, in line with usual practice.

Summary costs and benefits table

Option

Total benefit per annum:

  • economic, environmental, social

Total cost per annum:

  • economic, environmental, social
  • policy and administrative

1

Puts same sex and opposite sex couples on same footing.

Savings of up to £100,000 in total

2

Allows opposite sex couples to enter a civil partnership if they wish.

Costs could be:

One off cost of £200,000 for NRS for IT systems and forms.

One off cost of £200,000 to local authorities for familiarisation and training.

Longer-term costs depend on take-up and on whether the introduction of opposite sex civil partnership would lead to an increase in the number of registered opposite sex relationships.

If there were no increase in the number of registered opposite sex relationships, there would be no costs in relation to rights and responsibilities.

If there were a 1% increase in survivor benefits, there could be a cost to the devolved public sector pension schemes of around £1.75 million a year.

If there were a 10% increase in survivor benefits, there could be a cost to the devolved public sector pension schemes of around £17.5 million a year.

If there were a 1% increase in the number of registered opposite sex relationships, there could be a cost to the legal aid budget of around £222,000 a year.

If there were a 10% increase in the number of registered opposite sex relationships, there could be a cost to the legal aid budget of around £2,196,000 a year.

Family Law
Scottish Government
September 2018


Contact

Sarah.Meanley@gov.scot