by Eleanor Picken, Trainee Solicitor

Mixed-sex couples in Scotland may soon be able to enter into civil partnerships under the Scottish Government’s proposal to bring equality to legally recognised relationships.

The proposal follows the recent UK Supreme Court decision in R (on the application of Steinfeld) v Secretary of State for International Development [2018] UKSC 32 which found that the UK-wide Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights to the extent that it precludes opposite-sex couples from entering into civil partnerships. The ruling prompted a move to extend civil partnerships to said couples in England and Wales, and the Scottish government has unveiled similar plans.

Background

Civil partnerships were introduced across the UK in 2005 to enable same-sex couples to access similar rights, responsibilities and protections as those afforded by marriage. At that time, it was not possible for same-sex couples to marry. Since their introduction, there have been over 72,000 civil partnerships formed in the UK.

In 2014 same-sex marriage was legalised and statistics show that marriage is now more popular than civil partnerships, with many couples who were already in civil partnerships opting to convert.

The case for extension

Civil partnerships do however remain relevant for those who still view marriage as inherently religious, despite the rise in non-religious marriage ceremonies such as humanist services. In the case of Steinfeld, the opposite sex couple argued that they wanted to be ‘equal partners’ in the ‘modern, symmetrical institution’ of civil partnership which they felt was better suited to them. With no specific disadvantages to opening up civil partnerships to all, many view the proposed legislation as a step in the right direction.

Responding to the Scottish Government’s consultation on the subject, respondents cited equality of choice for all couples as a key reason to introduce civil partnerships for all. Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville went further: ‘Extending civil partnerships to mixed sex couples gives equality and choice to all. All couples will now have the option of a civil partnership or marriage which is a ground breaking change for Scotland. We will be providing people with the option to enter into a legally recognised relationship which reflects their personal views.’

Divorce and dissolution

The equivalent of divorce in a civil partnership is dissolution which is available where the civil partnership has broken down irretrievably. In Scotland, irretrievable breakdown can be established where one partner has behaved in such a way that the other partner cannot be ‘reasonably expected’ to live with them.

In contrast to England and Wales, Scotland has a no-fault based system and it is possible and indeed common to apply for a divorce on the grounds that you and your partner have not lived together for one year and your partner consents to the application for dissolution, or where you not lived together for two years. In England and Wales, these periods are two and five years respectively, although that is set to reduce with the proposed Divorce, Dissolution and Separation Bill. Adultery is a ground for divorce in any marriage, including a same-sex marriage, but not dissolution of a civil partnership.

Further help

With marriage and divorce law set to change across the UK, it is important to know your way around the new legislation so that you are best placed to make the most informed decision on your future. For expert advice in family law, please contact a member of our Divorce and Family Law team on 0131 228 8111.