Legal Evolution of Same-Sex Marriage in Scotland

In Scotland, civil partnerships and marriage was recognised in Scotland under the Marriage and Civil Partnership (Scotland) Act 2014. It may be noted at the outset that the approach taken by Scotland is an incremental approach towards same sex marriage; this means that the approach has been gradually involved in recognising rights of same sex couples. Therefore, civil partnership was a staging post, that led to the development of public opinion in favour of same sex marriage and ultimately, public consensus was built up and this led to the passage of the 2014 Act. The question that this essay probes is whether the law related to same sex marriage is similar to marriage between heterosexual couples.

The genesis of the reform of the Scottish marriage law can be found in the laws introduced to give certain rights to cohabitees in Scottish context; the case of Gow v Grant is particularly relevant in this context. The case related to an appeal related to the meaning and effect of Section 28 of the Family Law (Scotland) Act 2006, which enables cohabitants to apply for financial provision on ending of cohabitation for reason other than the death of one of the parties. The case reflected on the need to reform the law related to rights of cohabitees; the Family Law (Scotland) Act, Sections 25 to 30 were introduced to provide rights of cohabitees. Related to this issue is the rights of same sex partners. There was a significant support to same sex marriage and civil partnership in Scotland; this is reflected in the fact that the Marriage and Civil Partnerships Bill (Scotland) passed on 4 February 2014 with 105 votes to 18. The legislation has been considered to be a way of eliminating one of the existing discriminations in that same sex couples also not had the right to get married like heterosexual couples. The UK Supreme Court has already noted that the restriction on same sex marriage would be a discrimination incompatible with the Human Rights Act 1998.

The Marriage and Civil Partnership (Scotland) Act 2014 reformed the Scottish law so as to allow partners of same sex to enter into a civil partnership. The question is how far does the law related to same sex marriage or civil partnership mirrors the law related to marriage so as to understand how these laws affect individuals, couples and families based on the type of ceremony for solemnisation of marriage (religious or civil), or the type of relationship (marriage or civil partnership). Because there is now the application of Marriage and Civil Partnership (Scotland) Act 2014, there is registration of civil partnership as well as marriages in Scotland. In this matter, there is some similarity between same sex marriage and heterosexual marriage, because there religious ceremony is allowed for both. The difference is that there is no duty on religious bodies to solemnise same sex marriage in Scotland. It may also be noted that there is some modelling of the 2014 Act on the Marriage (Scotland) Act to accommodate same sex marriage as seen in the fact that Sections 1-8 and 10 simply amended existing legislation to accommodate civil partnerships between different sex couples. The Marriage and Civil Partnership (Scotland) Act 2014, Section 10 also empowers Scottish Ministers to make regulations to enable civil partners to convert a ‘qualifying civil partnership’ into a marriage.

1. Frances Hamilton, ‘Strategies to achieve same-sex marriage and the method of incrementalist change’ (2015) 25 J. Transnat'l L. & Pol'y 121.
2. Gow v Grant (Scotland) [2012] UKSC 29.
3. T Guthrie, and H Hiram, ‘Property and cohabitation: understanding the Family Law (Scotland) Act 2006’ (2007) 11(2) Edinburgh Law Review 208.
4. Jamie Y. Findlay, ‘Unnatural acts lead to unconsummated marriages: Discourses of homosexuality within the House of Lords debate on same-sex marriage’ (2017) 6(1) Journal of Language and Sexuality 30.
5. R (on the application of Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32.

Regarding the solemnisation of marriage and civil partnership, the law of the latter does not mirror the former because while marriages may be solemnised by religious ceremony, civil partnerships may not necessarily be solemnised by religious ceremony. The reason for this is that the Marriage and Civil Partnership (Scotland) Act 2014 does not impose a duty on celebrants of religious or belief bodies to conduct same sex marriages. The religious or belief freedom of the same sex couple, and of the religious or belief body and its celebrants, are therefore protected. In Europe, where religious context has played a role in the discourse on same sex marriage, Scotland is one of the countries that have accepted some form of recognition of same sex partnerships. Scotland had not accepted same sex marriage but had accepted some form of recognition of same sex partnership prior to the adoption of the 2014 Act. With the enactment of Marriage and Civil Partnership (Scotland) Act 2014, there is now a legal acceptance and recognition of same sex marriage. The important point is that the law allows both civil and religious ceremony for same sex marriage which means that the law has now taken an approach that allows religious recognition of same sex marriage. This has been possible in Scotland because marriage in Scotland has been considered to be a more secular contractual relationship (unlike in England) as reflected in the fact that marriage contracts were enforceable in Scotland.

There are two grounds of divorces under the Marriage and Civil Partnership (Scotland) Act 2014 in section 31. The 2014 Act has amended the Divorce (Scotland) Act 1976 (grounds of divorce) by including that the interim gender recognition certificate as ground on which decree of divorce may be granted does not does not apply where, under the Gender Recognition Act 2004, the Gender Recognition Panel issue a full gender recognition certificate to the person to whom the interim gender recognition certificate was issued, but continues to apply despite a full gender recognition certificate being issued. One of the differences between heterosexual marriage and same sex marriage is that law the latter allows interim gender recognition certificate and irretrievable break down of the marriage. Irretrievable breakdown of marriage can be established in four ways of evidence including adultery, which is defined as an act involving sexual relationship with someone else of the opposite sex who was not their spouse. This is one of the issues in same sex marriages that the same definition of adultery is applied to same sex couples so that a same sex spouse may only found on adultery if adultery occurred with a different sex person.

To conclude, there are some similarities between heterosexual and same sex marriage as the latter is modelled on the former. This can lead to the conclusion that the law now recognises the rights and duties of same sex married couples in the same way as heterosexual couples.

1. David B. Oppenheimer, Alvaro Oliveira, and Aaron Blumenthal, ‘Religiosity and same-sex marriage in the United States and Europe’ (2014) 32 Berkeley J. Int'l L. 195.
2. Nicola Barker and Daniel Monk, ‘From civil partnership to same-sex marriage: A decade in British legal history’ in From Civil Partnership to Same-Sex Marriage (Routledge 2015).
3. Kenneth McK. Norrie, ‘Civil partnership in Scotland 2004–14, and beyond’ in From Civil Partnership to Same-Sex Marriage (Routledge 2015).

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Bibliography

Barker N and Daniel Monk, ‘From civil partnership to same-sex marriage: A decade in British legal history’ in From Civil Partnership to Same-Sex Marriage (Routledge 2015).

Findlay T, ‘Unnatural acts lead to unconsummated marriages: Discourses of homosexuality within the House of Lords debate on same-sex marriage’ (2017) 6(1) Journal of Language and Sexuality 30.

Guthrie Tand H Hiram, ‘Property and cohabitation: understanding the Family Law (Scotland) Act 2006’ (2007) 11(2) Edinburgh Law Review 208.

Hamilton F, ‘Strategies to achieve same-sex marriage and the method of incrementalist change’ (2015) 25 J. Transnat'l L. & Pol'y 121.

McK. Norrie K, ‘Civil partnership in Scotland 2004–14, and beyond’ in From Civil Partnership to Same-Sex Marriage (Routledge 2015).

Oppenheimer DB, Alvaro Oliveira, and Aaron Blumenthal, ‘Religiosity and same-sex marriage in the United States and Europe’ (2014) 32 Berkeley J. Int'l L. 195.