Marriage Between Civil Partners (Procedure for Change and Fees) (Scotland) Regulations 2014 [Draft]
Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2014 [Draft]
Agenda item 3 is an evidence-taking session with the Cabinet Secretary for Health and Wellbeing on two Scottish statutory instruments.
As the instruments have been laid under the affirmative procedure, the Parliament must approve them before the provisions can come into force. Following the evidence session, the committee will be invited to consider motions to approve the instruments under agenda item 4.
I welcome to the meeting the cabinet secretary and his officials. I invite them to introduce themselves, and I invite the cabinet secretary to make some opening remarks.
Thank you, convener. I will let the team introduce themselves, after which I will make my opening remarks.
I am from the Scottish Government legal directorate.
I am head of the property law team in the Scottish Government.
I am from Scottish Government’s family and property law team.
The two instruments that we are discussing relate to the introduction of same-sex marriage in Scotland.
The first instrument is about changing civil partnerships into marriages. The Marriage and Civil Partnership (Scotland) Act 2014 contains two ways for persons in a civil partnership registered in Scotland to change their relationship into a marriage. Section 8 of the act allows couples to make the change through a marriage ceremony. The alternative is an administrative route laid down by regulations made under section 10—and those are the first regulations that we are discussing today.
The Marriage Between Civil Partners (Procedure for Change and Fees) (Scotland) Regulations 2014 provide that couples in a qualifying civil partnership will be able to apply to any district registrar in Scotland to make the change. Those couples are, first, those who have registered their civil partnership in Scotland and, secondly, those who have registered their civil partnership through United Kingdom consuls or UK armed forces overseas and who have elected Scotland as the relevant part of the UK.
Couples must present together in the registration district where they want their marriage to be registered and to provide an application form that has been completed but has not yet been signed; their civil partnership extract—in other words, their certificate; and any forms of identification requested by the district registrar. The registrar general will provide guidance to registrars on what type of identification will be acceptable.
The district registrar will change the civil partnership into a marriage if satisfied with the information provided. For couples who register their civil partnership before same-sex marriage is available in Scotland, the change into marriage through the administrative route will be free for the first year. Should the couple wish to receive a marriage certificate, there will be a £10 fee for each certificate in line with the usual charge in Scotland for such certificates.
The second SSI is on the jurisdiction of the courts. The Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2014 make provision on when Scottish courts have jurisdiction in relation to proceedings for divorce, separation and nullity of marriage; on when Scottish courts have jurisdiction in relation to proceedings on the recognition of decrees from outwith the European Union concerning such matters; and on Scottish courts recognising judgments from elsewhere in the EU on matters such as divorce, separation and nullity of marriage. They follow similar regulations made at the time that civil partnerships were introduced.
The regulations make provision similar to that contained in European regulation EC 2201/2003, commonly known as Brussels IIa, which deals with court jurisdiction and the mutual recognition of judgments in relation to matrimonial matters within most EU member states. It is generally accepted that Brussels IIa does not extend to cases involving same-sex couples, which is why we need to make the new regulations.
I am happy to take questions on both instruments.
I have just a small question about what may be a point of detail relating to the possibility of fraud. The Faculty of Advocates has expressed concern about the problem that application can be made with any form of identification. Would it be possible for the regulations to designate the form of identification that would be required?
You are asking about the possibility of fraud.
Yes.
We think that the possibility of fraud is absolutely minimal. Couples may apply to any district registrar; however, all registration offices in Scotland have access to the details of registrations made in other districts. Furthermore, National Records of Scotland will be producing guidance for registrars on accepted forms of identification.
After discussion with registrars, we thought it best to lay down in guidance rather than prescribe in the regulations the forms of ID that would be acceptable. We felt that being too prescriptive could negatively impact on an applicant who does not have exactly the correct, prescribed form of ID but who could present an equivalent document. We do not want people to be unable to make the change simply on the basis of not having exactly the right form of ID.
In addition, the chance of fraud is minimised because both applicants are required to attend together to sign the application form before the district registrar when making the change from civil partnership to marriage. Finally, the regulations contain provisions making it a criminal offence for any person to falsify or forge the application form.
I think that we have covered all the different ways in which someone might try to defraud the system. We think that the possibility of fraud is very minimal indeed.
My question is not specifically on the SSIs, but on an issue that I raised previously and that you addressed—the issue of same-sex couples with foreign partnerships seeking to marry in Scotland. It is accepted that further SSIs will be required to fully enact the Marriage and Civil Partnership (Scotland) Act 2014. Could you give us an update on that particular matter, given the previous undertaking to do everything possible to facilitate it?
Absolutely. That is something that I would have liked to have been able to do more quickly, but the law is very complicated to get right. We issued a draft discussion document to the committee just a couple of days ago—I do not know whether you have had a chance to look at it. We are interested in seeing the committee’s comments on the draft before we issue the formal documentation. As soon as we get your comments back, we intend very quickly to formally launch the consultation through that document. Clearly we need to legislate next year on the matter.
The issue is quite complicated mainly because of the different attitudes of other jurisdictions. I think that I am right in saying that Denmark, for instance, does not regard it as a major problem, but our friends in London think that it might be a problem in relation to English legislation.
I will ask Simon Stockwell to give you more detail, but that is the problem. We therefore need to end up with legislation and regulations that make sense while at the same time ensuring that people who have had a civil partnership overseas but who come to Scotland to get married can do so. That is obviously the objective.
We have asked some of our EU colleagues about their views. We have also asked our colleagues in England, Wales and Northern Ireland. The Dutch have said that if, for example, Scotland converted a Dutch civil partnership to a marriage, they would regard that as ending the civil partnership in the Netherlands and they would recognise the marriage.
The Germans and Austrians have said that they are not certain but that the chances are that they will continue to recognise the civil partnership as a civil union in Germany and Austria. The Poles have said that there is no such thing as civil union in Poland—we would not be converting any Polish civil unions, because there is no such status there.
The Northern Irish plainly have concerns, as they are just against same-sex marriage generally. They have concerns about the possibility of us changing Northern Irish civil partnerships to a marriage here. The expectation is that people will continue to be recognised as being in a civil partnership in Northern Ireland.
As the cabinet secretary has said, our English colleagues are raising a number of issues. I am hoping to go down and see them, possibly next week, to discuss some of those issues. So far, the most difficult response that we have received has come from our English opposite numbers, rather than from colleagues elsewhere in the EU.
New Zealand is unlikely to cause a problem, as New Zealand already converts overseas civil partnerships to marriage in certain circumstances.
Fundamentally, the problem is that we are dealing with so many jurisdictions with so many different approaches. We have to be able to write legislation in Scotland that can accommodate all of them.
I sense that there is a strong political will to deliver on this, notwithstanding those challenges.
Absolutely—totally. Had we been able to do it sooner, we would have done so. I recognise the importance of the legislation. I hope that everybody will agree, however, that it is far better to take our time and get it right than to rush into it only to find all sorts of complications. If we get it wrong, it is not us who will suffer; it is the couple who will suffer. We have a duty to get it right.
On a parallel point, we obviously recognise the divorce and dissolution of civil partnerships from all those countries. A similar process was gone through to set up the legislation on that—how long did that take? That is possibly going back into the dim and distant past of Scottish Governments, but are you able to shed any light on that question?
The Family Law Act 1986 contains provisions on the recognition of overseas divorces. To be honest, I do not know how long it took for us to reach that decision.
Sorry—I was referring to the dissolution of foreign civil partnerships. We added to the law in 2004, and so the law then contained provision for the dissolution of foreign civil partnerships. This issue on the exchange of foreign civil partnerships is similar, and I take it that previously there was a similar process of checking for consequences in other countries. Are you aware of how long that process took?
I do not know the answer to that question, to be honest. When civil partnerships were set up, quite a lot of the provisions in the 2004 act reflected similar provisions in respect of marriage. The same type of system was established: a parallel system was set up in respect of civil partnerships compared to marriage. Generally, the position is that we recognise overseas divorces of marriages. Similarly, we recognise overseas dissolutions of civil partnerships. The Civil Partnership Act 2004 generally mirrors the way in which marriage works.
The situation is slightly more complicated here. For instance, if someone from the United States is in a civil partnership and they change that to a marriage here, the existing civil partnership in the United States might continue, so the person might still have a civil partnership in the United States while being married in Scotland.
Yes—but I am specifically referring to what happens if a relationship that was registered abroad is dissolved here. In that American example, a civil partnership could be dissolved here under our current law but, if the person goes back to America, they might not have a guarantee that the dissolution of the civil partnership will be recognised there. That seems to throw up the same issues as the exchange of foreign civil partnerships here.
Yes. It is easier when there is just the one type of relationship: it is easier if it is either a divorce of a marriage or a dissolution of a civil partnership. It gets more complicated if the situation involves the divorce of a relationship that is recognised as something else in the other jurisdiction.
For example, there is specific provision in the section 104 order that has been laid at Westminster to enable a Scottish same-sex marriage to be recognised as a civil partnership in Northern Ireland. There is further provision to state that, if the Northern Irish courts then dissolved what is deemed to be a civil partnership in Northern Ireland, the dissolution of that civil partnership is recognised as ending the marriage in Scotland and in England. The difference is that the relationships might be treated differently in different jurisdictions.
09:45
I will move on to the civil partnership marriage fee. The regulations state that there will be a £30 fee payable to change a civil partnership to marriage and a £10 fee for each requested marriage certificate. However, for those in civil partnerships that were registered before 16 December, when same-sex marriage was not available, there will be only a £10 charge for each extract from the marriage register and certificate provided.
The Scottish Government says that there are around 5,500 civil partnerships registered in Scotland. If 5,000 of those were to be changed to a marriage in the first year, the cost would be approximately £150,000. What plans does the Scottish Government have to reimburse the local authorities for those costs?
We are doing it in a slightly different way. We have transferred resources of £100,000—because we think that the cost will be nearer that figure than £150,000—from the Scottish Government to the National Records of Scotland. The local authorities will bill the NRS and will receive money out of that £100,000. Administratively, that is the easiest way to do it so that local authorities will not lose a penny.
That is great. I see that members have no more questions.
Moving to item 4, the committee will formally consider and recommend approval of motions S4M-11569 and S4M-11570.
Motions moved,
That the Equal Opportunities Committee recommends that the Marriage Between Civil Partners (Procedure for Change and Fees) (Scotland) Regulations 2014 [draft] be approved.
That the Equal Opportunities Committee recommends that Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2014 [draft] be approved.—[Alex Neil.]
I invite members to ask any questions.
I have not a question but simply a statement. Members will be aware that I opposed the primary legislation that makes the instruments necessary, and I remain opposed in principle to what that legislation achieved. However, I am fully aware that the instruments are necessary to give effect to the will of Parliament and I will therefore not oppose them.
Thank you.
Motions agreed to.
That concludes our consideration of those affirmative instruments, and we will report the outcome to Parliament. I thank the cabinet secretary and others for their participation.
I suspend the meeting briefly.
09:50 Meeting suspended.Marriage and Civil Partnership (Scotland) Act 2014 (Commencement No 3, Saving, Transitional Provision and Revocation) Order 2014 (SSI 2014/287)
Agenda item 5 is consideration of a negative instrument.
This instrument brings into force the remaining provisions of the Marriage and Civil Partnership (Scotland) Act 2014, with the exception of provisions relating to religious and relief bodies, satisfying qualifying requirements that are set out in regulations and provisions that increase certain notice periods from 14 days to 28 days. The order also makes transitional and savings provisions and revokes some regulations that no longer have effect.
The Delegated Powers and Law Reform Committee determined that it did not need to draw the instrument to the attention of Parliament. This committee will now consider any issues that it wishes to raise in reporting to Parliament on the instrument. Members should note that no motions to annul have been received.
As no members wish to make any comments, is the committee agreed that it does not wish to make any recommendations in relation to the instrument?
Members indicated agreement.
I suspend the meeting to allow the next cabinet secretaries to take their seats.
09:52 Meeting suspended.