The consultation on Civil Partnership Registration: analysis of the responses
CHAPTER 4: MARRIAGE AND PARTNERSHIP
4.1 Discussion of the general principles continued in responses to propositions 8 and 9. There was considerable overlap between the responses to these questions and question 1, and the issues raised in response to all three questions have been collated thematically.
Question 8. We recognise the role that marriage has in Scottish society and do not seek to undermine marriage by extending civil partnership registration to cohabiting couples. (paragraph 5.7)
4.2 This is a double-barrelled question. The first part refers to the relationship that the proposals have to the protection of marriage; the second part, to the position of unmarried couples of different sex. These issues are separable, and they were addressed separately in the consultation responses .
4.3 This question was the most often rejected by respondents. Of 205 identifiable responses, 82 respondents agreed (40%), 81 disagreed, (40%), 32 agreed in part (16%), and 10 (4%) did not know. The extensive disapproval reflects the balance of support among respondents for LGBT rights.
The protection of marriage
4.4 A limited number of submissions supported the contention, notably including religious organisations of various denominations.
We believe that the proposal will undermine marriage and would constitute a basic redefinition of marriage, which is the basic cell of society. Legal recognition of same-sex partnership would effectively be a redefinition of marriage, making it an institution devoid of essential reference to factors linked to heterosexuality; for example procreation and raising children. Such recognition will also expose the young to erroneous ideas about sexuality and marriage, undermine public morality and contribute to the spread of the phenomenon. (Catholic Church submission to the Equal Opportunities Committee)
Marriage has a unique and special place in society. ... Whilst we agree that two adults should be free to live together in the manner they choose and be able on a case by case basis to qualify for some rights, we do not believe that they should receive the endorsement of their relationship by the state. We believe that the introduction of a system of civil partnership registration effectively entails endorsement of the relationship (and) implies a moral equivalence to marriage. (Religious organisation)
4.5 Many more respondents were dismissive of the premise. This reflects the strong representation of supporters in the consultation.
We do not see how allowing civil partnership to couples who would not otherwise marry undermines anyone else's marriage, or the institution of marriage in general. Civil partnership will encourage more stable relationships amongst those who would not otherwise be married. (LGBT organization)
Such a step would not, in our view, weaken marriage. If, as we believe, marriage is important and valuable, it will not depend on the exclusion of others from registered partnerships for its survival. (Religious organisation)
Religion and marriage
4.6 The understanding of marriage was seen by some in the main context of religion. Some respondents attributed the roots of opposition to religious organisations.
We live in a secular state. (Individual response)
This is pandering to religious inspired discrimination. (Individual response)
4.7 There were responses from religious organisations which sought to preserve the status of marriage, and some of these are reported above, but equally several religious organisations sought to establish support for the principle of single-sex marriage.
Relationships are sacred, and honouring them does not necessarily mean hastening the demise of the family or the dissolution of civilised society, or the abdication of all moral responsibility. It can mean living more justly, more humanely, affirming what we know to be good. It is possible for Roman Catholics to support civil registration partnership legislation remaining in the Church and true to Christ. (Religious organisation)
Some Churches already refuse to recognise marriages that are perfectly legal under existing law (for example, the refusal of the Roman Catholic Church to allow divorced people to remarry in Church). Other faith communities (for example Islam, in certain circumstances) allow polygamous marriages which are, in general, not recognised in Scots law. ... Faith can be just as important in the lives of many LGBT people as it is for many heterosexual people. As a Church we seek to encourage all people to integrate their spirituality and their sexuality and/or gender identity. The proposal would be yet another step towards dividing these issues, to the serious detriment of many people of faith within the LGBT communities. (Religious organisation)
THE POSITION OF COHABITING HETEROSEXUAL COUPLES
4.8 The second part of proposition 8 refers to the position of "cohabiting couples". The proposition raises two issues. The first is whether the measure should be extended to heterosexual couples; the second, what the effect would be on marriage. There were contrasting views. A minority were opposed in principle to the whole idea of civil partnerships; some people argued that this was not a priority, because marriage was otherwise available to such couples; but many others felt that there was no realistic possibility of equality unless couples of opposite sex were included.
Extension to heterosexual couples
4.9 Some respondents felt that extension was unnecessary, because couples of different sexes have the option of marriage.
Unfortunate though it may be for those persons within different sex relationships who cannot "face" the thought or act of marriage as it now stands I see that they do now have a choice of civil marriage or church weddings - and that is denied us and I don't want to subvert it. We wish our relationship to be recognised and for us to take mutual responsibilties in return for rights and prequisites of a registered civil relationship. (Individual response)
4.10 Rather more respondents felt that mixed sex couples should be able to enter civil partnerships.
We support the provision of civil registered partnerships to cohabiting couples so that they may, if they chose benefit from the rights and responsibilities that this legislation will bring to same-sex couples (Unison)
4.11 Extension to heterosexual couples was seen as a simple means of making the legislation apply consistently across different groups.
If the aim is equality (and if it isn't, it should be) then civil registration should be available to opposite sex partners too. (Individual response)
4.12 The primary argument for extension was equality. Some respondents were concerned that the proposed arrangements put heterosexual couples at a disadvantage:
The proposals would appear to be discriminatory in that they exclude heterosexual couples, many of whom are in stable family relationships and do not wish to go through a formal marriage, they will be denied the opportunity to register their partnerships. There is surely a case to afford heterosexual couples the same rights and privileges as any other section of society, in fact this would consolidate the position of their relationships, their rights and the rights of their children. (Registrar)
More rights than cohabiting couples? Ludicrous! (Local authority councillor)
4.13 Others felt that excluding heterosexual couples would imply inequality for same-sex couples. Such an arrangement would necessarily be different, and of lower status, than one which was available to others by choice.
What current proposals will do is retain the two-tiers of society, with heterosexuals on one side and homosexuals on the other! These proposals are socially divisive. The only way around this is to give everyone the same rights. (Individual response)
Everyone who responded wanted to see equality in the law - one set of rights and responsibilities given to both same-sex and opposite-sex couples. Respondents felt that creating two different forms of union between couples avoided the central issue of equality. We felt that the general public will perceive this as a second-rate form of marriage, exacerbating existing prejudices. Everyone agreed that there should be one set of rights for opposite-sex and same-sex couples and most respondents felt that the creation of a new distinct legal status creates new and unnecessary inequalities. (LGBT organization)
4.14 The Equal Opportunities Committee recommended that these issues should be included in consultation on the Executive's forthcoming Family Law Bill. A religious organisation commented:
If the answer is that this will be dealt with under future family law legislation we would argue that for reasons of equity as well as logic the "access" for same sex couples should also be dealt with under family law legislation. (Religious organisation)
THE IMPACT OF THE EXTENSION ON MARRIAGE
4.15 There was some scepticism as to whether extension to heterosexual couples would undermine marriage, on the basis that those couples who preferred civil partnership would be unlikely to marry otherwise.
Extension of Civil Partnership to cohabiting heterosexual couples will not undermine marriage, it will simply give them more options. (Individual response)
The evidence from the Netherlands, where civil partnership has been open to mixed-sex as well as same-sex couples since 1998, is that the number of marriages does not fall, and the number of mixed-sex civil partnerships is relatively small. (LGBT organization)
OTHER ISSUES
4.16 Two other particular issues were raised. The first was the case of gender reassignment, which if civil partnerships were not available to mixed-sex couples would lead to civil partnerships being annulled.
This brings particular difficulty when considering transgendered (trans) people. If proposed gender recognition laws pass, this will put some people in the position of having to legally dissolve their relationship before being able to be issued with a new gender recognition certificate, only to then have to go about getting the relationship legally recognised once more. ... Trans people in transition ... need all the stability available to them during this often unstable time. (Individual response)
4.17 The second issue concerns what will happen to same sex cohabitees. The issue is double-edged. On one hand, there were potential problems arising from the rights of same-sex couples who have joint interests but have not entered a civil partnership. Two lawyers suggested that as the purpose of registration was to clarify the nature of such relationships, the complexities of such unregistered rights were to be avoided; others suggested that the rights should flow from the relationship.
Every legal system abroad which has introduced civil partnerships for same-sex couples has at the same time also extended the rules of cohabitation to same-sex couples and we must not forget to do so in Scotland and in the UK also. (Legal sector)
4.18 On the other hand, there are also liabilities which arise from cohabitation. The Scottish Low Pay Unit pointed out that rules which apply to married and cohabiting couples of different sexes in relation to benefits and means-tests might also be expected to apply to cohabiting couples of the same sex.
Question 9. We do not seek to open up marriage to same-sex couples. Instead we are creating a new legal status of civil registered partner for same-sex couples. (paragraph 5.8)
4.19 This was another double barrelled question. The first part raises the question of the difference between civil partnership and marriage; the second part refers to a new legal status for same-sex couples. Of 201 responses, 91 respondents (45%) approved, 72 (36%) disapproved, 35 (17%) agreed in part, and 3 (1%) did not know.
CIVIL PARTNERSHIP AND MARRIAGE
4.20 Opinions about the relationship of civil partnership to marriage were divided. Some respondents, from both sides of the debate, did not accept that civil partnership was materially different to marriage.
"We do not seek to open up marriage to same sex partners." Bunkum! The only reason that the E&W legislation makes the distinction is because, as already practised in London and Manchester, it is just like a marriage ceremony - confetti for fertility and all! (Individual response)
The executive should have more guts to stand up to the bigots and call it what it is, marriage. (Individual response)
4.21 Others did see a difference: civil partnership was a second-class option.
There is a significant body of opinion in the LGBT communities in Scotland (approximately one third of our survey respondents) who feel that civil partnership, even if it carries very similar legal effects to marriage, is not a satisfactory solution. They see civil partnership as fundamentally unequal, because it is not marriage. It is, at best, a segregated 'separate but equal' status. (LGBT organization)
4.22 Many respondents thought that marriage should be available to same-sex couples.
The simplest approach from a technical point of view would be to amend the Marriage (Scotland) Act 1977 s 5 to extend marriage to same-sex couples. This latter approach could also deal with the arguably harder case of "married" transsexuals (cf., Bellinger v Bellinger [2003] AC 467); and it would offer a cogent solution to issues of jurisdictional comity worldwide, since marriage is a universal modality whereas "registered partnership" is not. (Faculty of Advocates)
I don't see why we should not be able to marry. Imagine: "Would you make me the happiest woman on Earth by becoming my civilly registered partner?" "She's having an affair with a registered woman. <shock>" It doesn't seem quite so serious somehow. (Individual response)
4.23 Some gay people were not interested in "marriage",
There is also a significant proportion of LGBT people who do not want to enter a same-sex marriage. They are uncomfortable with marriage because they see it as potentially patriarchal, or based too much on religion. They seek civil partnership, as a gender-neutral and secular form of status providing the necessary legal framework of protection for their partnership and family (LGBT organization)
and others did not think it mattered what the status was called:
As long as the legal rights of same-sex civil registered partners are equivalent to those of married couples, it remains simply a question of semantics with marriage being what heterosexual couples do and civil registration is what same sex couples do. (Individual response)
4.24 Several respondents considered that both marriage and civil partnership registration should be open to all parties, as they are in the Netherlands.
We question why it would not be reasonable to offer either marriage by way of a civil ceremony to both same-sex and heterosexual couples or to offer only civil partnership agreements to all couples. (LGBT organization)
Let us stop the verbal semantics and create marriage for all and civil partnerships for all. (Individual response)
4.25 Others suggested that the institution of marriage should be replaced in law by civil partnership, with marriage ceremonies reserved to religious organisations.
Civil partnership registration should be very widely available to people setting up a household together. In part this would have the form of a legally enforceable pre-nuptial agreement (and very like the old marriage contract in Scotland before the mid 1700s). Those entering such an agreement, provided that it met several criteria to be specified (particularly regarding the acceptance of mutual responsibilities etc.) should enjoy the privileges currently accorded to "marriages". Thus Civil Partnership Agreements would become an integral part of all marriages and would, in effect, replace civil marriage (Individual response)
NON-SEXUAL RELATIONSHIPS
4.26 The presentation of civil partnership registration in the consultation leaves implicit the assumption that same-sex relationships are sexual in nature. Several respondents referred to information, not included in the consultation document, which suggested that neither consummation of the relationship nor sexual infidelity would be considered relevant to civil partnerships. The main exception is the inclusion of prohibited degrees, reflecting the status of sexual partners in marriage. Apart from the specific issues relating to prohibited degrees, which are considered in a later section, several respondents made the case that civil partnerships should be available to others sharing households, who may also wish, like same-sex partners, to establish rights relating to property, succession and the rights of survivors.
Justice will only be done if the legislation is sufficiently inclusive and specific: namely that there are no reasons to withhold these rights form persons in non-sexual partnerships. Without such exclusivity the present proposals are not sufficient. (Religious organisation)
If any other partnership, except marriage, is recognised then so should other partnerships. It is discriminating against e.g. carers if they are not included in this Bill. (Local authority councillor)
4.27 Recent legislation elsewhere allows for other types of "significant and caring" unions to be registered, for example between people and their carers. 5 Several religious organisations intimated that analogous arrangements would be a more acceptable approach than civil partnership to dealing with inequalities between different types of couple.
The consultation paper says homosexual couples "can face significant difficulties in their lives" and cites examples such as "following the death of one partner, the surviving member of a same-sex couple might not have any rights to the property they may have shared with their partner for a significant length of time." But the fact is there are very many other people who face equally distressing situations who also deserve help. (An) other option which does not destroy the status of marriage is to create a broad legal status of "co-dependency" which carries with it certain rights addressing the economic and social dependency where it exists. (Religious organization)
Restricting (civil partnerships) only to those in same sex relationships does not appear to be just and inclusive. What of relationships where members of the same or opposite sex enter into a close long term relationship purely for platonic reasons or where a friend or relation takes on the role of carer? Surely these are equally deserving of the protection and security a Civil Partnership Registration could provide. Opening up Civil Partnership Registration ... would make it quite clear that this broader interpretation was not simply the legalisation of "Gay Marriages". (Religious organisation)