Social revolution

While the media were busy with the Hunting Act last year there was a little publicised, but nonetheless hugely significant, development in family law extending across the UK. The Civil Partnership Act 2004 (hereafter “the Act”; statutory references are to the Act unless otherwise stated) received Royal Assent on 18 November 2004 and has been described by Jacqui Smith, the Minister for Equality, as “one of the most significant pieces of social legislation the government has introduced”.

When the Act comes into force (now announced as 5 December 2005) same-sex couples who register their partnership will have, in the Minister’s words, “parity of treatment in a wide range of legal matters with those opposite-sex couples who enter into a civil marriage”. This has been done not by extending marriage to same-sex couples, but by the creation of “a new legal relationship of civil partnership”.

Who can be civil partners?

The Act only applies to same-sex couples. Civil partnership will not be available to heterosexual couples.

Same-sex couples where both parties are over 16, are not married or already in civil partnership, and are not within certain forbidden degrees of relationship, can register as civil partners. The forbidden degrees are broadly the same as those for marriage, but extended to take account of the relationships that could ensue when individuals are free to enter into civil partnerships as well as marriage (schedule 10). Changes to the forbidden degrees in relation to both marriage and civil partnership are proposed by the new Family Law (Scotland) Bill introduced on 7 February 2005 (SP Bill 31, clauses 1 and 33 and schedule 3). The procedures for notice and registration are broadly the same as for marriage, except that there is no equivalent to the religious marriage ceremony. Once the couple have registered their partnership they will be known as “civil partners”.

What are the effects?

In order to provide “parity of treatment”, a complicated mixture of new provision and amendment/repeal of existing legislation has been enacted. The Act is not straightforward to follow. The provisions that extend to Scotland are sections 1, 85-136, 210-219, 225-227, 233-247, 249-251 and 253-264; and schedules 10, 11, 20, 21, 23 (in part), 24 (in part), 25-28 and 30. Some of the more significant developments are:

Aliment. The Family Law (Scotland) Act is extended, giving civil partners an obligation to aliment each other (schedule 28, paragraphs 11-13).

Occupancy rights and interdicts. By sections 101-116, all the protections enjoyed by spouses under the Matrimonial Homes (Family Protection) Scotland Act 1981 are given to civil partners. Exclusion orders are available to a civil partner (on the same basis as they are to married individuals) and will continue to be known as such. Matrimonial interdicts are also available but will be known as “relevant interdicts”. The court must attach a power of arrest to a relevant interdict just as it would to a matrimonial interdict. The protection of rights of occupancy in relation to division and sale (the 1981 Act “section 19 defence”) is extended to civil partners. It should be borne in mind that the Family Law Bill proposes further changes to both Acts in relation to occupancy rights and the related interdicts: see clauses 4-9 and 25, and schedule 1.

Dissolution. By section 117 divorce becomes “dissolution” (the writer awaits with pleasure the first time that she can dissolve a client). Unlike divorce there is more than one ground for dissolution: irretrievable breakdown, or that an interim gender recognition certificate has been issued to either of the partners under the Gender Recognition Act 2004. A further difference is that there are only four ways to establish irretrievable breakdown for dissolution, unlike the five that currently exist for divorce – there is no adultery provision in the Act. Again it should be borne in mind that the Family Law Bill (clauses 10 and 11) proposes changes to both the Divorce (Scotland) Act 1976 and the Act to reduce the non-cohabitation periods from (i) two years to one (with consent), and (ii) five years to two (without consent) and, in addition, to remove the existing desertion provision.

Financial provision. Financial provision on dissolution mirrors financial provision on divorce and, uses the familiar Family Law (Scotland) Act 1985 formulae. This is achieved by schedule 28 part 2, which amends the 1985 Act to insert appropriate references to civil partners.

Succession. The Succession (Scotland) Act 1964 is amended to insert the appropriate references to civil partners: section 131 and schedule 28 part 1. Surviving civil partners will be entitled to prior and legal rights, as are surviving spouses currently.

Evidence. Section 130 makes provision in relation to the competence and compellability of the civil partner in criminal proceedings. Corroboration will be required for dissolution, as is the case in divorce proceedings currently (schedule 28, paragraph 55, amending the Civil Evidence (Scotland) Act 1988). By paragraph 59 the existing provisions which render inadmissible (in civil proceedings) any information as to what occurred in family mediation, are amended to extend to actions of dissolution, separation or nullity of civil partnership.

Damages/services claims. The definition of “relative” in both the Damages (Scotland) Act 1976 and the Administration of Justice Act 1982 is amended to include civil partners or former civil partners (schedule 28, paragraphs 42 and 47 respectively). Until the Act comes into force the treatment of the surviving same-sex cohabitant in fatal claims for the purposes of the 1976 Act will depend on when the predeceasing cohabitant died. If this occurred before the Human Rights Act 1998 came into force (2 October 2000), the 1976 Act will not provide any relief: Telfer v Kellock, Lady Smith, 10 November 2004.  If the predeceasing cohabitant died after 2 October 2000, however, it is submitted that the surviving cohabitant would be recognised for the purposes of the 1976 Act, following the broad ratio of the House of Lords decision in Ghaidan v Godin-Mendoza [2004] UKHL 30.

Immigration and private international law. Civil partners and married individuals will be treated alike in relation to immigration issues. Provision is made to deal with immigration issues that arise where one partner (or potential partner) is “subject to immigration control” (schedule 23, parts 1, 3 and 5). There is provision for recognition of “overseas relationships” – civil partnerships constituted abroad, where they meet certain criteria in relation to their formation (sections 123, 124, 210-218 and schedule 20). The private and public law issues arising from the recognition of civil partnerships/“overseas relationships” and their dissolution, annulment or separation are complex, and it is not intended to explore them furher in this article.

What’s not in the Act?

Two significant issues that are not dealt with in the Act are taxation and adoption/fostering. The taxation consequences of civil partnership are to be dealt with in separate legislation which will be tabled before the Act comes into force. The Revenue has confirmed that “The tax consequences of the Civil Partnership Act will be dealt with in the first available Finance Bill. For tax purposes, registered same-sex couples will be treated the same as married couples” (www.inlandrevenue.gov.uk/pbr2004/pn02). This will extend the beneficial tax regimes that currently exist for inter-spouse transfers under IHT and CGT to civil partners.

In relation to adoption and fostering there will remain inequality of treatment as between married couples and civil partners in Scotland in terms of the Act. There is also inconsistent treatment of prospective adopters as between Scotland and England and Wales. Adoption law in Scotland is currently being considered by the Adoption Policy Review Group chaired by Sheriff Principal Cox. Accordingly, the issue of adoption and fostering was left to the Review Group, which is due to report on phase II in March 2005. At present in Scotland only married couples can jointly adopt. A step-parent can adopt a child if he or she is married to the birth parent. It is not clear whether the same provisions will be extended to civil partners. It may be that any recommendations made will follow the position in England and Wales, where the focus has moved away from the marital status of the prospective adopter. Couples can/will be able to adopt jointly if they are married, civil partners or “two people (whether of different sexes or the same sex) living as partners in an enduring family relationship”, or make “step-parent” adoptions in favour of an individual when that individual is part of a same-sex couple (Adoption and Children Act 2002, sections 50 and 144(4); Civil Partnership Act 2004, section 79).

Final thoughts

To end where we began: the Act arose out of the perceived need to ensure “parity of treatment” for same-sex couples with married couples. Whilst the Act is undoubtedly to be welcomed and goes a considerable way to correcting existing inequality, it avoided doing the obvious (and simple) thing – open marriage to same-sex couples. If heterosexual individuals can marry, why should homosexual individuals not have the same, and not just an equivalent choice? In side-stepping the politically controversial issue of “gay marriage”, by the creation of the new legal relationship of civil partnership, the Act may itself create a new inequality – what of heterosexual couples who would rather become civil partners than spouses?

Rachael Kelsey is a partner in the Family Team at MHD, Edinburgh and an accredited specialist in family law.