The difference between marriage and civil partnership

Marriage as an institution pre-dates recorded history. Couples started to elope to Scotland in 1754 after legislation in England and Wales changed so that it was illegal to marry under 21 without parental consent. However, marriage was until recently only available in Scotland to mixed sex couples. The Civil Partnership Act 2004 came into force in December 2005. This legislation allowed same sex couples to form a civil partnership through registration and in turn to have similar rights and responsibilities to those already available to a mixed sex married couple.

Then, the Marriage and Civil Partnership (Scotland) Act 2014 introduced same sex marriage for same sex couples. This did, however, mean that whilst civil partnership and marriage were available to same sex couples, only marriage was available to opposite sex partners. This was challenged in England and Wales. The court in the English case decided that this was not compatible with the European Convention on Human Rights.

In light of this, here in Scotland, the Civil Partnership (Scotland) Act 2020 came into being. So, from 1 June 2021 it has been possible for opposite sex couples to submit a notice of intention to enter into a civil partnership.

Starting a Civil Partnership –v- a Marriage

Civil Partnership:

You can enter into a civil partnership if you and your partner are both age 16 or over, neither of you is already a civil partner or married, you are not relatives who are legally forbidden from registering a civil partnership and you both understand the nature of a civil partnership and can consent to its formation.

To register a civil partnership you first need to give notice of your intention to register and then you need to register the civil partnership. You and your partner give notice of your intention to register a civil partnership to the District Registrar for the area where you wish to register your civil partnership. You need to give the Register Office some personal details and also give details of the date and place where the civil partnership is to be registered. You need to provide your birth certificates and there is a fee to pay.

Then, details from the notice will be published in the Register Office for the area where you intend to register. These have to be available for people to see for 28 days before you can register your civil partnership, just in case any objections are made.

Assuming the 28 day period expires without issue, the Register Office will produce a legal document called a Civil Partnership Schedule. Then you can register your partnership within the next 3 months. If you don’t do it within this period you will need to start the process again.

The civil partnership can be registered by a District or Assistant Registrar or a religious or belief celebrant who has been authorised by the Registrar General.

Your civil partnership will be legally registered once you and your partner have signed the Civil Partnership Schedule in front of the person registering the civil partnership and two witnesses.

Marriage:

You can get married in Scotland if you are aged 16 or over (same sex couples and opposite sex couples), not married or in a civil partnership with someone else, not closely related and capable of understanding what marriage means and of consenting to marriage.

You can have a civil ceremony which can take place in a registration office or anywhere agreed with the registrar, except religious premises. Alternatively, you can have a religious or belief ceremony which can take place anywhere by someone approved to conduct a ceremony.

You and your partner both need to complete and send a Marriage Notice form to the registrar in the area you will be married in, in good time before your planned wedding. If your form is not with the registrar at least 29 days before your wedding date, you may need to postpone. There are documents you need to send with the Marriage Notice Form and a fee to be paid.

If you are having a religious or belief ceremony you will also need to collect the marriage certificate prior to your wedding. If you are having a civil ceremony then the registrar will do that for you.

Converting a civil partnership into a marriage

How you change your civil partnership to marriage depends on where you had your ceremony.

If you had your civil partnership in Scotland, you can either change it by an administrative process or have a marriage ceremony. If it was outwith Scotland, then you need to have a marriage ceremony.

Administrative process:

You do not need to have a wedding ceremony (though you can if you want to) if your civil partnership took place in Scotland.

Instead, you can arrange an appointment with your local registrar to change your civil partnership to marriage. There is an application form you need to fill out first, which you download from the National Records of Scotland website or get a hard copy from a registry office. When you go the registration office, take your form, the entry in the civil partnership register about your civil partnership and photo ID for both you and your partner. There is a fee to be paid. Once you have seen the local registrar you will then be married and will be able to order a marriage certificate.

Changing a civil partnership registered outside of Scotland:

For civil partnerships registered outside of Scotland, the process is a bit more detailed. You need to be able to show that your civil partnership was registered with a ‘responsible authority’, you and your partner are not married to or in a civil partnership with someone else and that your civil partnership was legal in the country where it happened. Assuming you can do this, you can arrange a marriage ceremony.

You can get more information about relationship legal recognition and the process of getting married or entering into a civil partnership or converting the latter into a marriage at https://www.mygov.scot/ and searching under marriage and civil partnership.

Marriage –v- Civil Partnership?

Since the legal consequences of marriage or civil partnership are pretty much the same, it really comes down to personal choice. Perhaps if you have been married before and it has ended badly, a civil partnership might offer a fresh start. There is a perception that marriage is old fashioned and still only available to opposite sex couples. There can be lots of reasons why a couple might opt to enter into a civil partnership as opposed to marrying.

Cohabitation –v- Marriage and Civil Partnerships

It is important to remember that whilst there is now some limited protection for cohabitants whose relationships end by separation or death, cohabitants do not have the same legal rights as married couples or civil partners. The legislation in relation to cohabitants was clear that the legislative aim was not to place cohabitants on the same legal footing. Putting in place a cohabitation contract is, however, a good way of ensuring the appropriate protection is in place, as is ensuring both cohabitants have made Wills in favour of the other, to protect against difficulties which can arise where a cohabitant dies without a Will.

It is also important to bear in mind that for opposite or same sex couples intending to marry or enter into a Civil Partnership Agreement, entering into a Pre-Nuptial or Pre-Civil Partnership Agreement could be a good idea. These Agreements can ring-fence assets which are being brought into the marriage or civil partnership and in so doing protect parties in the event of breakdown of the relationship.

Rights and Responsibilities in Civil Partnerships –v- Marriages

There are no significant differences between legal rights in marriage and civil partnerships in Scotland. In terms of legal responsibility for married couples and civil partners living together, financial responsibilities and parental responsibility will stay identical unless specified otherwise in a prenuptial agreement.

Ending a Marriage –v- Ending a Civil Partnership

A marriage ends by divorce.

A civil partnership is brought to an end by a dissolution.

In both cases, ending requires the involvement of the court.

In relation to both dissolution or divorce there is either the DIY or simplified dissolution or divorce if financial provision has been agreed and there are no children of the relationship under the age of 16 or, where that is not possible, using the more detailed court procedure called the “ordinary” procedure.

The grounds for dissolution and divorce are the same. Firstly, that either party has obtained an interim gender recognition certificate during the civil partnership or marriage or secondly irretrievable breakdown of the partnership or marriage has been established.

Irretrievable breakdown is, however, established in different ways depending on whether you married or entered into a civil partnership:

For married couples:-

1. Unreasonable behaviour (this could include for example domestic violence and abuse);
2. Adultery;
3. Two years’ separation; or
4. One year separation with the other spouse’s consent

For civil partners:-

1. Unreasonable behaviour;
2. Two years’ separation; or
3. One year separation with consent

The ground of divorce based on adultery is not available in civil partnership as this is exclusive to marriage. Nor is incurable impotence meaning a marriage can be voidable available in a civil partnership situation.

Other than this there are few legal differences and the legal rights of both are almost identical, during the relationship, on dissolution or divorce and on death.

Claims on Separation

Both spouses and civil partners can make claims for ongoing financial support (known as aliment before divorce/dissolution and periodical allowance after) and for a fair sharing of a couple’s wealth on separation.

Claims on Death

Both can make a claim on the death of the other for a share of the deceased’s estate, whether or not there was a Will in place.

Tax

Broadly speaking for general tax and inheritance tax purposes civil partnerships and marriage are treated the same although it is always important to consider obtaining specialist tax advice, for example, in the event of separation.

In summary, marriage and civil partnership are treated in very similar ways here in Scotland.

Harper Macleod expertise in civil partnerships

At Harper Macleod, our family law team is well equipped to address issues pertaining to civil partnerships, cohabitation, divorce and other family law matters. Recognizing the unique and often sensitive nature of these subjects, we prioritize understanding our clients’ individual needs, providing pragmatic advice tailored to each specific situation.

With our extensive expertise in family law, we can serve as a one-stop-shop for all your legal relationship needs, ensuring a constructive and cost-effective use of your time. Our team’s proficiency is not only reflected in our skilled approach but also acknowledged through relevant awards and accreditations, as well as numerous client reviews, affirming our commitment to quality and transparency in all aspects of our service.

If you have any questions related to civil partnership, marriage or cohabitation, please contact our team who will be happy to assist.