Extension of civil partnership to different sex couples
Section 2: Recognition of overseas different sex relationships
9.Part 5 of the 2004 Act makes provision for civil partnerships (however described) formed outwith the United Kingdom. Chapter 1 of that Part provides for the registration of civil partnerships at British consulates and by members of UK armed forces outwith the United Kingdom. Chapter 2 of that Part makes provision for certain overseas relationships to be recognised as civil partnerships in Scots law (as well as in the legal systems of the other UK jurisdictions). Couples are treated as having formed a civil partnership if they have registered an “overseas relationship”, which is defined in section 212 of the 2004 Act. Amongst other things, the definition (as enacted) requires that both people in the relationship are of the same sex. Section 2(2) of the Act removes that requirement from the definition of “overseas relationship”.
10.The definition of “overseas relationship” in section 212 of the 2004 Act also requires that a relationship be either:
“a specified relationship”, which is defined in section 213 as a relationship of a kind that is specified for the purposes of section 212 in schedule 20, or
one that complies with the general conditions set out in section 214.
11.Section 2(3) of the Act amends section 213 of the 2004 Act so that overseas relationships between different sex couples can be specified in Part 2 of schedule 20. Section 2(6) of the Act inserts Part 2 into schedule 20, which contains those overseas relationships that are to be treated as civil partnerships in Scotland. Section 2(3) of the Act allows the Scottish Ministers to amend Part 2 of schedule 20 by regulations. The regulations will be subject to the affirmative procedure if they amend or omit a relationship, and the negative procedure if they add a relationship. The negative procedure is defined by section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010, and the affirmative procedure is defined by section 29 of that Act.
12.Section 215 of the 2004 Act provides that an overseas relationship is to be treated as having been entered into at the time it is registered in the overseas jurisdiction or at the time that section came into force, whichever is later. Section 2(4) of the Act amends section 215 to allow the Scottish Ministers to make contrary provision as to when overseas relationships between persons of different sexes are to be treated as having been entered into.
13.Section 216 of the 2004 Act prevents an overseas relationship from being recognised as a civil partnership in accordance with Part 5 of the 2004 Act if the parties to it were not of the same sex under UK law at “the critical time” (which is defined in subsection (5)). Section 2(5) of the Act repeals section 216 so that whether the parties were of the same sex at any time is irrelevant to the question of whether their overseas relationship can be recognised as a civil partnership in Scots law.
