Wait before changing civil partnership law, advocates urge

Scots law on civil partnerships should not be changed for at least five years, so that the impact of same sex marriages can be assessed, the Faculty of Advocates said today.

In its response to the Scottish Government's consultation on the future of civil partnerships now that same sex marriage is possible, Faculty suggests that the “pace of change may be too fast” and a moratorium would be reasonable.

The options put forward by ministers are no change to the present law; providing that no new civil partnerships may be entered into from a date in the future; and introducing opposite sex civil partnerships (which ministers do not favour).

At present only same sex couples can enter a civil partnership. Very few have been contracted since the introduction of same sex marriage at the end of 2014.

In a Response, the Faculty said: “We are concerned that there may not be enough information available to make decisions on proposals of the nature proposed by the review. We consider that the pace of change may be too fast and that now is not the most appropriate point in time to be seeking to make the changes considered by the review.

“The provisions of the Marriage and Civil Partnership (Scotland) Act 2014 have very recently come into force. It is not known yet what, if any, demand there will continue to be for civil partnership in the months and years to come. It would be helpful if there was an opportunity for the practical effect and impact of the introduction of the 2014 Act to be assessed before any further legislative change is introduced in the area.”

It points out that the third option may affect issues such as succession and "would require to be looked at in a much broader context than simply considering the impact it would have on couples themselves".

There are also relevant European measures – on succession, matrimonial property and jurisdiction in divorce – that have been passed recently or are about to be passed. Although the UK has chosen not to opt in to the first two of these, Faculty states that their full effect and consequences are as yet unknown, and argues against creating a status that might be recognised in Scotland but not in other jurisdictions.

“We are of the view that more and better evidence is required in relation to the current lay of the land…before a fully informed and considered view can fairly be taken on the important changes proposed by the review, which have such wide-ranging implications”, it adds.

And it concludes: "We note that all the assessments seem somewhat limited. None of the assessments appear to contain the sort of detailed consideration that we would expect when dealing with a review that proposes to make changes that affect status with such wide-ranging implications."

Click here to view the full response.