31 December 2014 – a day which is historically one of celebration took on a new significance in the wake of the Marriage and Civil Partnership (Scotland) Act 2014.
At the beginning of the year, Scotland became the 17th country in the world to legalise same-sex marriage after the Scottish Parliament passed the Marriage and Civil Partnership (Scotland) Act 2014. From 16 December 2014 same-sex couples were able to give notice of their intention to marry and, following the usual 15 day notice period for new marriages, the first same-sex marriage ceremonies took place on Hogmanay.
The result of the new legislation is that, for the first time, same-sex partners can be legally recognised as married and those currently in civil partnerships can choose, if they wish, to convert their civil partnership to marriage.
From a practical perspective, the process is very straightforward. For those wishing to have a full marriage ceremony, the couple simply give notice of their intention to marry to the district registrar in the area in which they intend to marry and go through the process in the usual way. Couples can opt for either a civil marriage ceremony or a "belief-based" ceremony provided that the religious or belief body has sought and obtained authorisation for its celebrants to solemnise same sex marriage.
For those wishing to convert existing civil partnerships into marriage, there are two ways in which to do this. Couples can either convert through a full marriage ceremony or alternatively, can choose to convert administratively by making an appointment with their local registry office. For the first year, there will be no charge for an administrative conversion. If however couples wish to convert through a full marriage ceremony they will need to pay the associated costs.
From a legal perspective, those couples intending to convert an existing civil partnership should be live to the fact that the legislation is retrospective and therefore the marriage will be treated as having started on the day the couple registered their civil partnership. This could have implications in the event of any future divorce in that matrimonial property will be taken to include any property accrued during the course of the original civil partnership.
It is important to remember that the new legislation does not affect existing civil partnerships and if couples are content to simply retain this legal status, then they are able to do so. This option will continue to be available to same-sex couples as an alternative to marriage. Civil partnerships are not currently an option open to mixed-sex couples, however the government have indicated that further consideration may be given to making it available to all couples in due course.
Another element of the new legislation, and one which sets it apart from analogous legislation in other countries, is the protection that it affords to transgender rights. In the past, the process of applying for a gender recognition certificate would effectively bring to an end any existing marriage or civil partnership. Now however married transgender people will be able to stay married and those in civil partnerships will be able to convert to marriage and then get gender recognition. In addition, there is no longer any requirement for spousal consent to get legal recognition of gender.
It remains to be seen to what extent the institution of marriage will be taken up by same-sex couples and whether, in light of the new legislation, civil partnerships will continue to present as an alternative or fall to the wayside. Whatever the outcome, the 2014 Act can certainly be celebrated as embracing the changing face of family law and recognising the diversity of family structures in Scotland today.
Elaine Sym is a Solicitor in Thorntons Family Law team. If you need advice on any family issues contact Elaine on 03330 430150 or email esym@thorntons-law.co.uk
