Radical change or a lie in law?

On 26 November 2003 the UK Government indicated its intention as part of its legislative programme to introduce a Civil Partnership Bill, the purpose of which is to give same-sex couples throughout the United Kingdom legal recognition and rights, provided they enter into a civil partnership. The Bill follows on from consultation papers which were issued by both the United Kingdom Government and the Scottish Executive last year. To avoid cross-border difficulties the Scottish Executive has accepted that the Westminster Parliament will introduce the Bill but that it will include Scottish provisions. This will ensure that Carlisle does not become for same-sex couples what Gretna became for married couples.

Whilst Michael Cashmen, Labour MEP, on the one hand, described the Bill as “groundbreaking and radical” and Colin Hart, Director of the Christian Institute, on the other, described the same Bill as “enshrining a lie in law” that “holy matrimony would be equated with a homosexual liaison”, it is in fact a Bill which arises from the Government’s requirement to comply with an EU Employment Directive (2000/78/EC) which bans discrimination in employment and training on the grounds of sexual orientation. The introduction of civil partnership registration should prevent such discrimination.

Civil partnership registration is not a new idea. A number of EU member states as well as areas in the USA and Canada have civil partnership registration schemes. Whilst many of these apply only to same-sex couples, some also apply to opposite-sex couples. The UK Bill will only apply to same-sex relationships. Cohabiting different-sex couples will be afforded no rights and responsibilities by this legislation. The Government has also stated that there are no plans to introduce same-sex marriages.

The Scottish Executive however indicated that it is committed to reforming family law and the extent and the nature of legal rights for cohabiting couples will be considered in that context. A consultation paper is to be issued which will set out the Executive’s plan for reform.

Let us now look at the proposed detail.

The civil registration process

To enter into a civil partnership the following conditions apply:

(a) both parties have to be 16 years of age or over;

(b) only one registered civil partnership arrangement can be entered into at any time;

(c) a person who is presently married could not enter into a civil partnership until the marriage has been dissolved;

(d) The forbidden degrees which apply to marriage as set out in the Marriage (Scotland) Act 1977 will apply to a civil partnership.

Prior to entering into a civil partnership there will be a registration process which would involve registrars attending to the formalities. There will be a 15 day waiting period between giving notice and the registration taking place.

A civil partnership schedule will be issued seven days prior to the intended civil partnership registration. On the day of registration the couple, the registrar and two witnesses sign the civil partnership schedule. A certificate of evidence of the registration of the partnership is then issued to the couple.

Whilst it is accepted and recognised that some same-sex couples may want the registration to remain private, the Government has stated that the registration process will be a matter of public record.

Rights of registered partners

Having entered into a civil partnership, here are a few of the rights which civil registered partners will acquire which will not apply to same-sex couples who do not enter into a civil partnership:

In the area of immigration if the same-sex partner of someone present and settled in the UK, wishes to enter the UK, one of the conditions is that he or she has to have been living together in a relationship similar to marriage for two years or more. This two year prior cohabitation requirement will be removed for registered partners.

For procedures for voting in elections, such as voting by proxy when there is reference to spouses, this would now include registered civil partners.

In relation to prison visits, civil registered partners will be treated as the same as married partners in terms of any information required as proof of relationship. In particular a registered partner will be treated as a close relative for inter-prison visits irrespective of whether their relationship existed prior to imprisonment.

In the area of income-related state benefits, registered partners will be treated as a single family unit. At present, same-sex partners are currently treated as individuals. It could be argued that same-sex couples should be treated in the same way as unmarried opposite-sex couples for income-related purposes, otherwise they would benefit financially from choosing not to enter into a civil partnership. The consultation papers do not propose a solution but instead invite comments.

As one of the main purposes of the Bill is to comply with the EU Directive which relates to discrimination, it is proposed that registered partners will be given the same state pension rights as married couples and will be eligible for dependency increases when entitlement for both husbands and wives, in relation to state pensions, is equalised in 2010.

All change for family lawyers

For family law practitioners the key elements of proposed change are in the following areas.

Protection from domestic violence. It is proposed that civil registered partners will have the same protection as spouses from domestic violence. Same-sex couples who have entered into a civil partnership will presumably be provided with occupancy rights as presently apply to married couples in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 as amended. There is no reason why this will not include the right of a civil registered partner to apply for an exclusion order against the other partner and to have a power of arrest attached to what is at present a matrimonial interdict.

Adoption. Although in England same-sex couples can foster children and can apply to adopt jointly, this will not be the case in Scotland. The Scottish Executive has launched the second phase of the Adoption Policy Review and the law will not be changed for new civil registered partners until after the review’s findings.

Succession and inheritance. As entering into a civil partnership will create a new legal status, on the death of a registered partner the surviving partner’s interest will be recognised. It is proposed that a registered partner will be given the rights of inheritance which currently apply to a surviving spouse, whether or not the deceased partner had made a will.

Parental rights and responsibilities. Whilst at present any individual who plays a significant role in a child’s upbringing can apply to a court to gain parental rights and responsibilities in terms of the Children (Scotland) Act 1995, it is anticipated that the court will, in deciding whether to make such an award, take account of the commitment between registered partners.

Children – residence and contact. If the partnership breaks down the Government reiterates that the interest of the child is paramount. There should however be prospect for the child to have continued contact with the other registered partner following the breakdown of the partnership provided it is in the best interests of the child.

Though the areas of parental responsibility, residence and contact would not appear to involve specific changes to the law, these are areas in which the Government hopes that its statement will assist in a change of attitude towards same-sex couples who make the commitment of entering into a civil partnership.

Property division on dissolution of the partnership. It is proposed that rights will be provided to civil registered partners on dissolution of the partnership and the courts will be provided with authority to make orders for financial provision based on the equal sharing principle. It seems that the law on division of the matrimonial property, including payment of a capital sum and all of the principles set out in sections 8, 9 and 10 of the Family Law (Scotland) Act 1985 which at present only apply to married couples, will be extended to civil registered partners. There is therefore no reason why civil registered partners will not be able to enter into the equivalent of pre-nuptial agreements prior to entering into civil partnerships and separation agreements following the breakdown of their relationships.

Child support and maintenance. When calculating child support liability an allowance may be made for any children living in the non-resident parent’s new household. This would apply whether the non-resident parent is part of a registered same-sex couple, or of an opposite-sex couple, married or not. The government proposes that a registered partner will be assessed in the same way as a spouse for child support.

In the event of the breakdown of a partnership it is intended that there will be a duty on one partner to provide reasonable maintenance for the other, presumably in the form of periodical allowance and aliment.

Breakdown of the relationship

The arrangements for dissolution of a civil partnership will be broadly similar to those required to end a marriage by decree of divorce. The procedure for dissolution of the civil partnership will be court-based and partners will be required to make a formal application to the court to commence proceedings. The partner applying for dissolution of the partnership will be required to show that it has broken down irretrievably before the court can make an order for dissolution.

To prove that the partnership has broken down irretrievably it will be necessary to produce evidence of unreasonable behaviour. The behaviour will require to be such that the applicant could not be expected to continue living with the partner, on a fault basis, or alternatively, on a no-fault basis, that there has been a separation with consent for two years or five years without consent.

Whilst the Scottish Executive states that the arrangement for dissolution of a partnership should be in accordance with Scots law, it appears to import from England the concept of decree nisi and the one year waiting period between registration and starting dissolution proceedings. It is anticipated that these proposals will not become law in Scotland.

Like married couples, same-sex couples who have entered into a partnership can apply for an order of separation. Such an order would recognise the separation of the couple but would not allow them to register a new civil partnership or to marry. It is difficult to envisage a same-sex couple wishing on religious grounds to obtain an order for separation as opposed to dissolution.

It is unclear how many same-sex couples will enter into a civil partnership. This is based on the Government’s own statistics which estimate that in the year 2030 there will either be as few as 826 or as many as 7,500 civil partnership dissolutions taken through the courts. However what is clear is that civil partnership registration and the creation of a new legal status of civil registered partner are radical and groundbreaking in Scots law. As a result the advice of family law practitioners will be sought by same-sex couples on the breakdown of civil partnerships in the same way as such advice is presently sought by married couples.

To date we have only had consultation papers. The detail and the devil will be in the Bill!

Tom Quail is a Partner with Ketchen & Stevens, Glasgow and is an Accredited Specialist in Family Law