Following the decision of the Supreme Court case of R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and Education Secretary) (Respondent) in which the court made a declaration that the Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights insofar as it does not permit different sex couples to enter into a civil partnership, the Scottish Government consulted on whether to repeal civil partnerships or to extend civil partnerships to include different sex couples.

Having received and considered the responses to the consultation, the Scottish Government announced that it would seek to extend civil partnerships to include different sex couples. A Civil Partnership (Scotland) Bill) was introduced to the Scottish Parliament on 30th September 2019.

The Scottish Parliament's Equalities and Human Rights Committee are scrutinising the Bill and have issued a call for views. The Committee wishes to establish whether the Bill offers the correct approach to ensure equality for all those wishing to formalise their relationship. They wish to hear from individuals and organisations with their views on the Bill and, in particular, whether they support the extension of civil partnerships to different sex couples and whether the legislation will have an impact on human rights or equalities issues for any particular groups of people.

What difference could the extension of civil partnerships to different sex couples have?

On a basic level, it could benefit those couples wishing to formalise their relationship and have the financial and legal protection a civil partnership brings without having to enter into a marriage to reap such benefits. There are many reasons why some may not view marriage as being the most suitable formal recognition of their relationship.

Further, opening up civil partnerships to opposite sex couples could benefit transgendered persons in a civil partnership as they would be permitted to obtain an interim gender recognition certificate and remain in their civil partnership if they wished.

An extension could, however, have important legal implications that individuals should be aware of. Survivor benefits in relation to pension funds can be lower for a surviving same sex spouse or civil partner. In addition, there are no proposals to reform the legislation to extend the circumstances for demonstrating irretrievable breakdown of a civil partnership to include adultery. Further, the Scottish government would be unable to guarantee whether different sex civil partnerships would be recognised outside the jurisdiction.

I would encourage anyone with an interest in the extension of civil partnerships to different sex couples to share their views with the Committee. We will watch with interest whether this Bill is enacted.


Garry Sturrock

Senior Associate