Who can enter into a civil partnership?

In our final #12DaysOfChristmas #12DaysOfFamilyLaw blog series we consider issues around one type of binding commitment, civil partnership.

Christmas is often a time when two people decide to make a binding commitment to each other. In this blog, the final instalment of our 12 days series, we consider issues around one type of binding commitment, civil partnership.

Same sex

From December 2005 and throughout Great Britain, two eligible people of the same sex have been able to register as civil partners. Civil partners effectively have the same rights and responsibilities as if they were married. The option of marriage became available to same sex couples in England & Wales in March 2014 and in Scotland in December 2014.

Different sex

From December 2019, two eligible people of different sex have been able to register as civil partners in England & Wales. When s.6 of the Civil Partnership (Scotland) Act 2020, which received Royal Assent on 28 July 2020, is brought into force, two such people will be able register as civil partners in Scotland. A date for s.6 to be brought into force has not yet been set though a date in 2021 is considered likely. From 1 February 2021, different sex civil partnerships formed outside Scotland will be legally recognised in Scotland.

Why was the law changed to allow two eligible people of different sex to enter into a civil partnership when they could marry instead?

The parliaments, both north and south of the border allowed for this after a UK Supreme Court ruling in a 2018 case brought by a heterosexual couple living in England who had “deep-rooted and genuine objections to marriage” and who wanted to be “equal partners” in the “modern, symmetrical institution” of civil partnership. The couple argued that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights (ECHR) because it prevented different sex couples from becoming civil partners. The Supreme Court upheld their challenge by making a declaration of incompatibility of the relevant sections of the 2004 Act with ECHR.

Aside from the Supreme Court decision, there were, nonetheless, legitimate reasons of public policy for the law change. For example, as was observed by an MSP contributing to a debate in the Scottish Parliament during the passage of the 2020 Act, “Marriage is not everybody’s cup of tea. For some, it represents religious or patriarchal baggage that many rail against.

Eligibility

Subject to the position in Scotland on different sex civil partnerships as explained above, two people over the age of 16 may enter into a civil partnership throughout Great Britain though, in England & Wales, parental or guardian permission is needed for those under 18 to do so. Additional eligibility criteria across Great Britain are that:

  • the two people are not related in a forbidden degree,
  • neither of the two people is married or already in civil partnership, and
  • both of the two people are capable of understanding the nature of civil partnership and validly consent to its formation.

Ceremonies during COVID-19

2020 has been a difficult year for all though, to some extent, wedding and civil partnership ceremonies have still been possible across Great Britain. A link to the rules on this for England & Wales, which updates as new law and guidance is issued, is hereThe equivalent link for Scotland is here

Concluding message from all members of the UK-wide BLM family law team

We hope that you have found our 2020 12 days of Family Law blogs informative. All members of our family law team across the UK are more than happy to discuss any of the particular topics covered which may affect you so please do feel free to get in touch. We are also, of course, happy to discuss any matter which you are experiencing, or may experience, across the entire spectrum of family law.  

Meantime, we conclude this series of blogs by wishing all as merry a Christmas as is possible in these testing times and a happy, hopefully eventually covid-free, new year.

To read the previous blogs in our 12 Days of Christmas series, please click on the links below:

Day 1: Self-care tips during a divorce

Day 2: Why you need a Will

Day 3: Full financial disclosure: England & WalesScotland

Day 4:Are pre-nuptial agreements legally binding?

Day 5:Christmas bubbles and childcare arrangements during the COVID-19 crisis: Scotland

Day 6: How much does a divorce cost? England & Wales; Scotland

Day 7: What happens to my inheritance if I divorce?

Day 8: Top 10 divorce pitfalls

Day 9: Can I attend arbitration to deal with finances on divorce?

Day 10: Wills FAQs and answers

Day 11: How much does a Will cost? 

Disclaimer: This content does not present a complete or comprehensive statement of law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

Who to contact

Caroline
Gillespie

Partner and Head of Family Law, Scotland , Glasgow

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