What is a civil partnership?

A civil partnership is a mechanism by which a couple can make a formal and legal commitment to each other.

Background to civil partnership and marriage for same sex and mixed sex couples

Marriage is an historic institution which was traditionally available in Scotland to mixed sex couples. The Civil Partnership Act 2004 came into force in December 2005. The enactment of this legislation enabled same sex couples to form a civil partnership through registration and to enjoy similar rights and responsibilities to those of a married (mixed sex) couple. The Marriage and Civil Partnership (Scotland) Act 2014 introduced same sex marriage for same sex couples. This created an anomaly in the law whereby civil partnership and marriage were available to same sex couples but only marriage was available to mixed sex couples. A parallel situation arose in England and Wales, which was challenged in the Supreme Court in the case of R (on the application of Steinfield and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32. The court declared that this was not compatible with the European Convention on Human Rights. The Scottish Government consulted widely on the issue and the Civil Partnership (Scotland) Act 2020 was enacted into law. From 1st June 2021, it will be possible for mixed sex couples to submit a notice of intention to enter into a civil partnership. This means, taking into account the 29-day notice period, that the first mixed sex civil partnerships could take place from 30th June 2021

What is the difference between a civil partnership and a marriage?

There is no significant difference between the status of marriage and civil partnership. Both afford couples significant rights and responsibilities, including succession rights and the obligation of aliment (i.e. financial support) between the couple. The only differences relate to pension rights on death, peerage, the ground of divorce of adultery (which is exclusive to marriage) and the ground of incurable impotence upon which a marriage can be voidable (exclusive only to marriage). In terms of the formation of each, a marriage is formed upon the exchange of verbal vows and a civil partnership is formed upon the signing of a legal document.

Why choose marriage or civil partnership?

Given that the legal consequences of marriage and civil partnership are virtually identical, save for the above exceptions, the decision for a couple on whether to enter into a civil partnership or marriage will arguably be down to personal choice. Some may perceive marriage as being the most common way of recognising a relationship formally and will opt for the "default" route to a more formal union. Some people of faith, in both same sex and mixed sex couples, may perceive marriage to be a union for mixed sex couples, which will sway their decision. Some may view marriage as being old fashioned or patriarchal and will opt to enter into a civil partnership. For those unhappily married in the past, a civil partnership may offer an opportunity for a fresh start unencumbered by previous memories. A civil partnership could also offer an opportunity for those who have been married in the past and are not able to remarry on religious or ethical grounds to enter into a formal union.

What should I do before entering into a marriage or civil partnership?

Any couple contemplating marriage or civil partnership ought to consider entering into a pre-nuptial or pre–civil partnership agreement. Such agreements can "ringfence" assets that are to be brought into the marriage or civil partnership by the couple. More information on the benefits of this type of document (more commonly referred to as a pre-nuptial agreement but the advice applies equally to pre–civil partnership agreements) is available here.


Garry Sturrock

Senior Associate