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 I: Draft Equality Impact Assessment (EQIA)

Annex I: Draft Equality Impact Assessment (EQIA)

Title of policy/ practice/ strategy/ legislation etc.

Consultation on the future of civil partnership

Cabinet Secretary

Shirley-Anne Somerville, Cabinet Secretary for Social Security and Older People

Lead official

Simon Stockwell

Officials involved in the EQIA

name

team

Sarah Meanley
Simon Stockwell

Family Law
Family Law

Directorate: Division: Team

Justice: Civil Law and Legal System, Family Law

Is this new policy or revision to an existing policy?

Revision to an existing policy

Screening

Policy Aim

1. The UK Supreme Court has held that the Civil Partnership Act 2004 is not compatible with the European Convention on Human Rights given that civil partnerships are only open to same sex couples.

2. The Scottish Ministers must act in a way that does not contravene Convention rights. Consequently, there is an obligation to remove the discrimination inherent to the current law on civil partnership.

3. There are two options for amendment of the law that would effectively remove this discrimination. The public consultation will seek to obtain views on these options, which are:

  • no new civil partnerships to be created from a date in the future, with existing civil partnerships to remain in place (the repeal option or option 1); or
  • extension of civil partnerships to opposite sex couples (the extension option, or option 2).

4. The information gathered in response to the consultation, along with other available evidence, will be used to inform the Government's approach to removal of the unlawful discrimination in the current legislation.

5. This EQIA will assess the two options for the future of civil partnership in Scotland, for the purposes of understanding the impact of the two options on people, and the promotion of equality.

6. The consultation will contribute to the following National Outcome:

  • We respect, protect and fulfil human rights and live free from discrimination

Who will it affect?

7. The options would affect couples who wish to enter a legally recognised relationship.

8. The options would affect those across society who interact with couples.

9. The options would affect religious or belief bodies, and civil registrars.

Stage 1: Framing

Results of framing exercise

The framing exercise raised a number of points:

  • Survivor benefits in pensions can be lower for a surviving same sex spouse or same sex civil partner. This could potentially extend to the surviving partner of an opposite sex civil partnership.
  • There could be significant opposition from some religious bodies to opposite sex civil partnership, who may see it as undermining marriage. However, there would be other groups that would support opposite sex civil partnership.
  • Establishing opposite sex civil partnerships could be beneficial to transgender people in a civil partnership: they could obtain an interim gender recognition certificate and stay in their civil partnership, if they wished.
  • Opening up civil partnerships to opposite sex couples would prevent civil partners being effectively outed based on information about their civil status.
  • Option 1 may create a perception of civil partnerships as being "legacy relationships". This could make them appear undesirable and inadvertently create pressure to change these relationships to marriage, notwithstanding the absence of legislation or policy to that effect.
  • In the context of option 1, if such civil partnerships from other parts of the UK and equivalents from overseas were treated as civil partnerships, this would provide for parity of treatment with civil partnerships registered in Scotland prior to any cut-off date. However, recognition in this way will mean that civil partnerships could exist in Scotland in perpetuity despite the option no longer being available to Scottish couples who wish to formalise their relationship here.
  • Other UK and overseas civil partnerships (or equivalents) could be treated as marriages. Such treatment could lead to tension between relationships treated this way and existing Scottish civil partnerships which will continue to be treated as civil partnerships, although this would largely be a matter of perception rather than of practical difference.
  • Some religious bodies could perceive the recognition of civil partnerships (or equivalents) from other jurisdictions as marriage to be a disproportionate "upgrading" which is not appropriate to or consistent with the nature of either marriage or the underlying relationship itself.
  • In relation to option 2 (extension), the Scottish Government will not be able to guarantee whether opposite sex civil partnerships would be recognised outside Scotland. Opposite sex civil partnership may in principle be less accepted in some cultures.
  • Option 1 would have an impact on single people who anticipate entering into a civil partnership at some point in the future, whether in relation to a current partner or otherwise. People in this situation would be able to marry, but their perception of this form of union could influence their willingness to be involved in it.
  • More guidance may be needed on entering into a marriage or civil partnership, including easy to read guidance. Were option 1 be to introduced, guidance for existing civil partners on the impact of the change would also be required.
  • Option 2 (extension) could lead to more opposite sex couples entering into a registered relationship ( i.e. the total number of opposite sex marriages and opposite sex civil partnerships would be greater than the total number of opposite sex marriages now). If so, there would be more people with statutory rights responsibilities and rights towards each other, such as the duty to aliment (financially maintain) one another. However, it is not clear that option 2 would have the effect of increasing the total number of opposite sex registered relationships in Scotland.
  • For married couples, irretrievable breakdown of a marriage can be established through adultery. Under option 2, the Scottish Government does not intend for this to be extended to opposite sex civil partners. This approach is aligned to existing civil partnership and same sex marriage law, but could be criticised for minimising the impact of infidelity in an opposite sex civil partnership and for failing to appropriately extrapolate from MacLennan v MacLennan, which could not have envisaged civil partnership.
  • Under option 2, various family law provisions would need to be amended to ensure that men in an opposite sex civil partnership would be afforded the same rights as men who are married to women, including the presumption on fatherhood, and parental responsibilities and rights. This will also provide women in opposite sex civil partnerships with the same clarity that currently exists for women in opposite sex marriages on the effect of their registered relationship in the context of parenting matters.
  • Under option 1, non-Scottish civil partnerships could be recognised as marriage. However, the existing law already allows couples in non-Scottish civil partnerships to change to marriage.

Extent/Level of EQIA required

A full EQIA would be required when the bill or remedial order is introduced to (or laid at) the Scottish Parliament, or a bill is introduced at Westminster.

That will take into account information provided in response to the consultation where it relates to the equality duty to eliminate discrimination, promote equality of opportunity and foster good relations.

Stage 2: Data and evidence gathering, involvement and consultation

Include here the results of your evidence gathering (including framing exercise), including qualitative and quantitative data and the source of that information, whether national statistics, surveys or consultations with relevant equality groups.

Characteristic [80]

Evidence gathered and

Strength/quality of evidence

Source

Data gaps identified and action taken

Age

1. Age at marriage or entrance into civil partnership

NRS have published data on these ages.

In the event of civil partnership being extended to opposite sex couples, this same age criteria (that the parties must be at least 16) would apply as currently exists for marriage and civil partnership.

1. NRS data

None

2. Composition of households in Scotland

Census Scotland have published data on composition.

2. Census 2011 data

3. Impact on children

Research from 2012 showed that the most important factors in determining children's wellbeing and outcomes are family process (such as the quality of parenting and family relationships) rather than family structures (such as the nature of the parents' relationship).

3. The Good Childhood Report (summary) (2012); p18

Family structure has been found to be less important than stability for a child's wellbeing, regardless of the nature of the family structure: " Stability is more important than family structure for children's well-being."

Mountney, K. (2011) Together and apart: supporting families through change, p1 and p11

The 2014 Growing Up in Scotland report found that family structure " did not seem clearly associated with social and emotional well-being, after allowing for other influences".

Sweeting, H. and Wight, D. (2014) Growing Up in Scotland: Family and school influences on children's social and emotional well-being, para. 4.9

Disability

There is no obvious impact on the protected characteristic of disability.

However, as noted above guidance may be required that explains the change made to the law and its implications; this will include easy-to-read guidance.

The Framing Exercise for this EQIA noted the need for more guidance on the implications of the option followed.

None

Sex

In Scotland, more female same sex couples than male enter into marriages.

NRS data on marriages and civil partnerships

There is little data on demand for civil partnerships from opposite sex couples.

Pregnancy and Maternity

Neither options 1 nor 2 have an obvious impact on this protected characteristic. Services in relation to pregnancy are not linked to marital status.

NRS produce statistics on the marital status of the parents of children whose births have been registered in Scotland.

However, opposite sex civil partnership will have implications in respect of parentage and in respect of family law.

NRS data on births

None

Gender Reassignment

Option 1 will not impact on this characteristic for couples who are in existing civil partnerships before the cut-off date in the context of the continued requirement to dissolve the relationship or change to marriage if one party obtains an interim Gender Recognition Certificate ( GRC).

However, if civil partnerships from elsewhere in the UK and equivalent from other jurisdictions should be recognised as marriages in Scotland in the future, there could be an impact as such couples could remain in the marriage.

Option 2 would mean that people in a civil partnership who obtain an interim GRC will no longer have to end their relationship by dissolving it or changing to marriage.

Below are the available numbers of updated Scottish birth certificates issued following gender recognition.

Year Number
2005 47
2006 44
2007 30
2008 16
2009 18
2010 18
2011 24
2012 13
2013 16
2014 16
2015 25
2016 20

NRS

None

Sexual Orientation

Option 1 would means that same sex couples would no longer be able to choose between marriage and civil partnership: only the latter would be available. NRS data shows that more same sex couples in Scotland marry than enter into civil partnerships.

Option 1 would also mean that opposite sex couples would not have the option to enter into a civil partnership.

Option 1 scenario:

NRS data

There is little evidence on demand from opposite sex couples in Scotland for civil partnership.

Option 2 would permit opposite sex couples to enter into civil partnerships in Scotland if they wished.

Option 2 would also mean that opposite sex couples in civil partnerships or equivalents from other parts of the UK and overseas would be able to have their relationships recognised in Scotland.

As the consultation paper suggests, evidence from other countries indicates that there can be demand for legally recognised relationships other than marriage where both types of relationship are available.

However, that demand can be linked to the relationship not being directly equivalent to marriage in terms of rights and responsibilities. Demand is generally lower when the two types of relationship are on the same general footing.

Option 2 scenario: information from other countries

France

Netherlands

New Zealand

Race

Neither option is thought to have an impact on this protected characteristic.

-

None

Religion or Belief

Certain religious bodies have expressed concerns about option 2, based on a perception that this would undermine marriage.

In response to the EQIA produced for the 2015 consultation on the review of civil partnership, there were also concerns that Christian belief and practices would be discriminated against.

It is likely that views will vary from religious or belief body to body.

Humanist Society Scotland have expressed strong support for opposite sex civil partnership.

Consultation analysis

None

Marriage and Civil Partnership

(the Scottish Government does not require assessment against this protected characteristic unless the policy or practice relates to work, for example HR policies and practices - refer to Definitions of Protected Characteristics document for details)

Marriage will remain available to opposite and same sex couples.

In the case of option 1, no new civil partnerships would be created after the cut-off date, although existing civil partnerships would remain in place if the couple wished.

In the case of option 2, civil partnership would be made available to opposite sex couples. The rights and responsibilities of opposite sex civil partners would be the same as those of same sex civil partners, which are in turn generally aligned to those of married couples.

As linked above, NRS have published data on marriages and civil partnerships in Scotland.

There is no clear evidence of likely demand for opposite sex civil partnership in Scotland.

Stage 3: Assessing the impacts and identifying opportunities to promote equality

Having considered the data and evidence you have gathered, this section requires you to consider the potential impacts – negative and positive – that your policy might have on each of the protected characteristics. It is important to remember the duty is also a positive one – that we must explore whether the policy offers the opportunity to promote equality and/or foster good relations.

Do you think that the policy impacts on people because of their age?

Age

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination, harassment and victimisation

   

No real impact on this Protected Characteristic.

Advancing equality of opportunity

   

No real impact on this Protected Characteristic.

Promoting good relations among and between different age groups

   

No real impact on this Protected Characteristic.

Do you think that the policy impacts disabled people?

Disability

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination, harassment and victimisation

   

No real impact on this Protected Characteristic.

Advancing equality of opportunity

   

No real impact on this Protected Characteristic.

Promoting good relations among and between disabled and non-disabled people

   

No real impact on this Protected Characteristic.

Do you think that the policy impacts on men and women in different ways?

Sex

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

   

No evidence of unlawful discrimination.

Advancing equality of opportunity

   

More men than women enter into civil partnerships in Scotland. Therefore, a larger number of men than women might be affected if no new civil partnerships could be created.

However, the policy will impact on men and women in the same way in terms of the legally recognised relationships that they will be able to enter into.

The Scottish Government is aware, and has reflected in the consultation, of arguments that some people may wish to enter into an opposite sex civil partnership because of a perception that marriage is patriarchal, or a religious institution, or that marriage ceremonies (and the reception) give prominent roles to men rather than women. However, these arguments relate to perception rather than to the law in this area.

Promoting good relations between men and women

   

Neither option seems to impact on the promotion of good relations.

Do you think that the policy impacts on women because of pregnancy and maternity?

Pregnancy and

Maternity

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

   

No real impact on this Protected Characteristic.

Advancing equality of opportunity

   

No real impact on this Protected Characteristic.

Promoting good relations

   

No real impact on this Protected Characteristic.

Do you think your policy impacts on transsexual people?

Gender reassignment

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

   

No evidence of unlawful discrimination.

Advancing equality of opportunity

   

Option 2 would mean that a civil partnership could continue if one of the parties obtained a Gender Recognition Certificate.

Under Option 1, if same sex civil partnerships from outwith Scotland should be recognised as marriages in future, a person in such a relationship seeking gender recognition would be able to stay in it.

Promoting good relations

   

Neither option seems to impact on the promotion of good relations.

Do you think that the policy impacts on people because of their sexual orientation?

Sexual orientation

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

   

Either option will remove unlawful discrimination from the current law.

Advancing equality of opportunity

   

Either option will provide equality of opportunity in terms of legally recognised relationships regardless of sexual orientation.

Promoting good relations

   

Neither option seems to impact on the promotion of good relations.

Do you think the policy impacts on people on the grounds of their race?

Race

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

   

No real impact on this Protected Characteristic.

Advancing equality of opportunity

   

No real impact on this Protected Characteristic.

Promoting good race relations

   

No real impact on this Protected Characteristic.

Do you think the policy impacts on people because of their religion or belief?

Religion or belief

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

   

No evidence of unlawful discrimination.

Advancing equality of opportunity

   

Option 2 would make opposite sex civil partnership available to those who wish to have it registered by a religious or belief celebrant.

Promoting good relations

   

Some religious bodies may be strongly against opposite sex civil partnership, seeing it as undermining marriage. However, marriage would continue to be available and there would be no obligation on religious or belief bodies to take part in the registration of civil partnership.

Do you think the policy impacts on people because of their marriage or civil partnership?

Marriage and Civil Partnership [81]

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

   

No evidence of unlawful discrimination.


Contact

Sarah.Meanley@gov.scot