Amendment 10 responds to the committee’s statement of support, in its stage 1 report, for the principle of married couples being able to change their relationship to a civil partnership if they wish. The amendment would provide the Scottish ministers with the power to make regulations on changing marriages to civil partnerships. That reflects what has been done in England and Wales, and in Northern Ireland, where similar powers are in place for the secretary of state, albeit that they are yet to be used. We will introduce regulations in Scotland to allow couples to change their marriages to civil partnerships as part of the suite of secondary legislation that will be needed to implement the bill, if it is enacted.
Our thinking is very much based on the existing arrangements that allow civil partners to change their relationship to marriage if they wish. In those cases, civil partners can choose whether to change their relationship by having a marriage ceremony—in much the same way as any other couple having a marriage ceremony—or by using an administrative route that is run by local authority registrars. We intend the same options to be available for couples who want to change their marriage to a civil partnership, so couples would be able to register their civil partnership through the usual registration process or could use an administrative route.
There are a number of reasons why a regulation-making power is appropriate in that regard. First, the regulations will lay down the details of how the administrative route will work. Secondly, the regulations will make provision on the effect of changing a marriage to a civil partnership. As the committee knows, some complex issues arise in changing marriages to civil partnerships.
Our general intention is that, when a marriage changes to a civil partnership, the civil partnership will be treated as having been entered into when the marriage was entered into. However, marriage pre-dates civil partnership in law, so we will need to be careful. Detailed provisions will be made on the treatment of marriages that are to change to civil partnerships for any period prior to the existence in law of civil partnership. That could be relevant if, for example, the couple should dissolve their relationship in identifying the property that is to be shared in the financial settlement. The use of regulations is appropriate when making highly technical provisions of that nature.
Thirdly, the use of a regulation-making power will provide an opportunity to consult, as appropriate, on provisions in this area. The powers require ministers to consult the registrar general, which reflects that the registrar general has operational functions in relation to the registration of civil partnerships and marriages. That will also allow us to take the views of local registrars about practical matters.
Our intention is that the administrative route will be open to couples whose marriages were solemnised and registered in Scotland, in line with the existing arrangements for changing civil partnerships to marriages through the administrative route. That reflects the fact that, when details of the marriage are held on the registration system in Scotland, it is straightforward for those details to be used when the relationship is changed. When the marriage was solemnised elsewhere, it will not have been recorded in Scotland. As a result, our intention is that couples in a non-Scottish marriage who wish to change their relationship in Scotland will be able to use the registration route. Again, that is in line with the existing approach to changing civil partnerships to marriages.
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The regulations also allow provision to be made on fees for changing marriages to civil partnerships. Our current thinking—again, it is in line with changing civil partnerships to marriages—is that the fees for the registration route will be the same as the fees that are normally payable on registering a civil partnership and that the fee for the administrative route will be the same as the fee for submitting one notice of intention to enter a civil partnership. In both cases, there will also be charges for what are known as extracts—civil partnership certificates. In short, we intend that the scheme for changing marriages to civil partnerships will be clear, fully considered and effective and will not have unintended adverse consequences for a couple.
Amendment 11 is about recognising as civil partnerships in Scotland marriages that convert to civil partnerships in England and Wales and in Northern Ireland. The Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 and the Northern Ireland (Executive Formation etc) Act 2019 provide the secretary of state with the power to make regulations on converting marriages to civil partnerships for England and Wales and for Northern Ireland. Neither set of regulations has been taken forward, which means that we do not yet know how conversions in those two jurisdictions will work.
However, we know that we want the conversions to be recognised in Scotland. For the purposes of recognition in Scots law, two key aspects have to be taken into account: recognition of the relationships generally and backdating. Amendment 11 reflects that by specifying two particular areas in relation to which the regulations can make provisions.
The first area relates to registration. The Civil Partnership Act 2004 makes provision on what a civil partnership is. The effect of section 1(1) is that a relationship that is formed in England and Wales or Northern Ireland is recognised as a civil partnership in Scotland when the couple register as civil partners of each other under part 2 or part 4 of the 2004 act. However, we do not know whether the conversion schemes for the other parts of the UK will actually involve the couples registering as civil partners in line with section 1. Amendment 11 specifically allows the Scottish ministers to make regulations that will ensure that converted relationships from other parts of the UK can be treated as registered under the 2004 act. That means that they will be treated as civil partnerships in Scotland.
The second area is backdating. By backdating, I am referring to the date that we treat the relationship, in its converted form, as having been created on. Again, it is not clear what conversion schemes for other parts of the UK may do in this area, but we need to be able to make provision on backdating these relationships for the purposes of Scots law. Amendment 11 will achieve that.
More generally, it is important that we have flexibility around provisions on recognising converted relationships. Being prescriptive in the bill could prevent such relationships from being recognised in Scotland in their converted form. Taking a power to make regulations will provide the tools that we need to legislate effectively in Scots law in response to the final forms of conversion schemes for other parts of the UK.
I move amendment 10.