Civil Partnership Registration

Proposals that would give legal status to committed same-sex couples – along with the rights and responsibilities this status would entail – are open for consultation until 5 December.  The Westminster Government has proposed a scheme under which same-sex couples in England and Wales would be able to register their partnership; if this is going to become law, the Scottish Executive argue, same-sex couples in Scotland should be able to register their partnership in Scotland "in order to avoid discrimination and cross border difficulties". This proposed status should trigger access to rights and responsibilities (in both devolved and reserved areas), and the Executive believe that this can most sensibly be achieved by including Scottish provisions in any Westminster Bill on civil partnership registration. Therefore, the Scottish Parliament will be invited to agree a Sewel motion (whereby the Scottish Parliament agrees that Westminster should legislate on a devolved issue, because of the mixture of reserved and devolved issues involved) to allow legislation to be achieved in this way.

The document stresses the serious nature of such partnerships, and insists that legal status is to be granted on the grounds that the partnership is to be exclusive and permanent. The scheme would be for adult (aged 16+) same-sex couples who are not in an existing registered partnership or marriage and are not closely related. There would be a requirement to give 15 days notice of intention to register, at a registry office, and there would be a statutory fee "based on existing fees for similar services".  The paper gives a step-by-step account of the registration process (s6.20), which sounds very like the procedure for marriage; and "the magnitude of the couple’s commitment requires that it be a matter of public record". 

Any dissolution of a registered partnership would be court-based, with one partner providing a formal application for a court hearing. The partner seeking dissolution would have to show that the relationship had broken down irretrievably, evidenced by unreasonable behaviour, two years' separation, etc. This closely parallels divorce law; indeed, the Executive had to reassure Parliament that it would reflect Scots law since the procedure in the consultation paper reflects English divorce law.

Couples who register would have a new legal status as "registered civil partners", and would acquire a "comprehensive package of rights and responsibilities … that would reflect the commitment they had made to each other and help them organise their lives together".

The consultation paper (s3.7) cites seven pieces of Scottish Parliament legislation which have already given recognition to same-sex partnerships, as well as court practices in housing and tenancy. What is now proposed is to extend the rights and responsibilities of such partners, in both devolved areas (eg family law issues such as parental responsibility, children's residence and contact, aliment, succession, damages, adoption, and registration of death, as well as joint liability for council tax, local government elections, hospital or prison visiting rights, etc) and matters reserved to Westminster (survivor pensions, immigration, tax credits, child support, and a range of benefits). Registration would clarify access to this package of rights, allowing a registered civil partner to be recognised as next of kin or a bereaved civil partner to be included in the definition of near relatives.

The case made by the Executive for these proposals is based heavily on human rights, on two levels. First, it is argued that justice requires these rights for the protection of vulnerable partners. For example, the current law of succession means that, following the death of one partner in a long-term relationship, the other may have no rights to succeed to tenancy of a shared house, nor to inherit an estate (even under a will, since this could be challenged by relatives). It is also claimed that EU Directives which outlaw discrimination in employment rights on grounds including sexual orientation might be a basis for legal challenge to survivor pensions which are only available to those who are married (although, it has been pointed out that this directive is explicitly "without prejudice to national laws on marital status and the benefits dependent thereon").

Secondly, the Executive argue for consistent UK policy; if legislation were passed recognising the rights of civil partners in England but not in Scotland, this would discriminate against couples in Scotland (some of whom could register in England, gaining rights under UK legislation, while others would be unable in practice to do so). This would also create anomalies as people move from one side of the border to the other.

Issues

At a recent consultation meeting among churches and other faith communities hosted by SCPO, many people found this argument persuasive, and evidence given by a Church of Scotland representative to Parliament's Equal Opportunities Committee reflected this: "we see the issues that are addressed in the consultation document as being justice and equal opportunities issues. The document is intended to fill a gap. A section of society - people in same-sex relationships - are, basically, disenfranchised at the moment and the legislative process that we are engaged in is an attempt to put that right. Perhaps the question is not about giving people in same-sex relationships the same rights as they would have in England - we should not simply mirror England and Wales - but about giving the same package of rights that are enjoyed by married people to people in same-sex relationships".

However, others have asked why there is seen to be a need to create a status in order to deliver a package of rights, especially since legislation already exists to provide some of these rights; other provisions could be made without creating a new status. Thus, evidence given by the Catholic Church said that "we are fully in favour of granting rights and making sure that people's legitimate needs are satisfied and protected, but we believe that the course of action proposed is unnecessary".

Initial evidence sessions held on the proposals by the Equal Opportunities Committee suggest that proper recognition of an equality of status, as much as particular rights, is seen by supporters of the proposals as a priority. For opponents too, this is central, as it is the basis of the belief that the proposals undermine marriage; since a status is being recognised which offers same-sex couples an option parallel to marriage, some feel that the special nature of marriage is being undermined.

Most of the provisions so closely mirror the law of marriage  - in provisions for giving notice, for prohibited degrees of relationship, and other requirements before a registrar can "perform the registration" - that several people at the SCPO meeting (supporters of the proposals, and opponents) felt it would be more honest if the Executive called it ‘gay marriage’: "a civil partnership looks like marriage and will be called marriage". Less ‘semantic gymnastics’ and more openness might actually create less division.

However, the Executive argue strongly that this is not so. The document repeatedly says that the purpose of this legislation is not to undermine marriage, but simply to grant same-sex couples the rights and responsibilities that are involved in a long-term committed relationship.  Marriage is still defined as the union between a man and a woman.  In outlining "the values that lie at the heart of our approach" (to family law in general), Justice Minister Cathy Jamieson said that "we want to provide children and young people with the best possible start in life ... Central to that is a belief in strong and stable families. And the pillar around which such families are built is marriage." This final phrase is something which the Executive had previously steered clear of saying, and which produced a strong reaction from several MSPs and others.

The Executive argue that extending the package of rights to cohabiting couples of opposite sex would indeed undermine marriage by providing an alternative to it, since marriage is an option for such couples, and "we have no intention of taking away the relevance and significance that marriage has for many people in our society". Therefore they are not proposing that, although they do indicate that future proposals for family law reform (to be announced "this winter") will seek to tackle the "myth of common law marriage" and will consider the "extent and nature of legal rights for cohabiting couples". However, the Deputy Justice Minister recently said that "we have never said that a family law bill will cover the extension of civil partnership registration to opposite-sex couples who choose not to get married" (although it has been argued that not extending civil partnership registration to them could be seen as discriminating against mixed-sex cohabiting couples).

One key difference suggested by the Executive between these proposals and marriage, is that no ceremony is required by the proposals. However, the description of a registration which "will be performed by the registrar in the presence of the couple and two witnesses" seems to suggest some formal proceedings as the norm. If that is to be so, questions will arise about whether clergy should have the same right to conduct these as they do with marriages (especially since blessings of such relationships are not unknown). The Executive position is that "religious organisations are entitled to give blessings to partnerships but it is not our intention to provide any legal framework for that"; if there were such provision, should there be a "conscience clause" for them, and indeed for registrars uncomfortable with the proposals?

The other key difference suggested by the Executive is that "non-consummation" would not be a ground for setting the registration aside (as it is for marriage). This would seem to imply that the relationship need not be sexual, but that is still assumed as the norm. Some have argued that it is discriminatory or unfair to offer these rights to one group but not to others (eg carers); such groups of people might be seen as "more deserving and more vulnerable, and it is important to deal first with the … most needy group".

For some, the debate is less about specific rights than about messages being given through a legislative lead. Supporters of the proposals have argued that registration will help people in same-sex relationships to sustain stable relationships, and that it is a positive message "that people can live in secure relationships, that children can live in secure relationships for a number of years and that such relationships are not necessarily the volatile or undesirable relationships of which you paint a picture". Others, however, claim that this would "unequivocally dilute the special status of marriage".

Procedure

The defensive, almost apologetic tone in which the Executive seem to justify their proposals by claiming that they have little choice but to follow action taken in London and throughout Europe, may be partly to avoid the acrimony of the polarised debate on "section 28". However, the intention to deal with this by a "Sewel motion" may be seen as a dangerous attempt to dodge a divisive issue, and one which might prevent proper Scottish scrutiny of Scottish family legislation; why have a Scottish Parliament if it sends controversial issues to Westminster? Further, if the Executive wish "to avoid a complex web of differing rights emerging between Scotland, England, and Wales, and (to gain) the advantages which parity offers in relation to cross border issues", what about rights to free personal care or to university education without tuition fees?

The Sewel motion will be put after a Bill is introduced at Westminster (probably in the 2003/04 session). The Executive have promised that there will be ample time for debate on this, that Scottish family law provisions will be drafted in Scotland, and that a further motion would be brought to the Scottish Parliament if the UK Parliament significantly amended the Bill.

Theological Context

However, for the churches the crucial issues are bound up with our vision (or visions) for the wellbeing of people, their relationships and their common good, as well as our view of how law and morality intermix. Yet issues involving sexuality have become increasingly polarised within many churches.

For some Christians, the context is set by a Biblically based conviction that homosexuality is wrong, and that marriage is the God-given cornerstone of society and basis for nurturing children. If the law presents marriage as simply one of a range of choices available, this is undermined: "Because marriage demands a degree of selflessness and commitment that human beings will not necessarily be inclined towards unless society endorses, supports and encourages them and unless society shows in law - because that is the way that we do it - that marriage is special, people will choose other options. That will harm society" (Fr Joseph Keenan). If this means "discrimination" against people in other kinds of relationship, that is ultimately "for the common good".

Other Christians, while still recognising the special nature of marriage, would see these proposals differently. So the Kirk's Moderator recently said: "The Church of Scotland affirms marriage as a covenanted relationship between a man and a woman and, therefore, has difficulty with the concept of same sex 'marriage'. The Church recognises the distress caused when next of kin rights are denied to a loved one at a time of crisis and I do not see why the granting of such rights should undermine marriage. Traditionally, Christianity strengthens human frailty by encouraging people to undertake vows as a demonstration of their commitment. In a pluralist society, we would expect other forms of covenanted relationships to arise. If these prove successful in providing stability and fostering faithfulness, it would be mean minded to deny their benefit".

And other Christians have argued that the Biblical basis for condemning homosexuality is doubtful, and would want to nurture the commitment of gay and lesbian Christians, and affirm their relationships (rooting their stance in Jesus' inclusive outreach to people in socially unacceptable relationships). Convictions about marriage should not be sustained by making life more difficult for those who choose other forms of relationship.

Clearly, committed Christians hold radically different views, Biblically grounded and reflecting pastoral experience. There are challenges for all in these proposals – to persuade people positively and credibly of what we believe in, and to share in a mature debate that expresses passionate commitment to the common good.

The full consultation paper (including a response form) can be found at www.scotland.gov.uk/library4/JD/JD-BSU/00018315.aspx, or by post from the Executive (phone 0131 244 3581); responses (individual or group) can be submitted (by 5 Dec) to SE Justice Dept, Civil Law Division, 2WR, St Andrew's House, Edinburgh, EH1 3DG or to civilpartnershipregistration@scotland.gsi.gov.uk.