Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Marriage and Civil Partnership (Scotland) Act 2014

Type Act of the Scottish Parliament

Publication 2014-03-12

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — MARRIAGE

CHAPTER 1 — SAME SEX MARRIAGE

Power to modify meaning of “qualifying civil partnership”

1

(1) The Marriage (Scotland) Act 1977 (“the 1977 Act”) is amended as follows.

(2) In section 2 (marriage of related persons)—

(a) for subsection (1) substitute—

(1) Subject to subsection (1A), a marriage between persons who are related to each other in a forbidden degree is void if solemnised— (a) in Scotland; or (b) at a time when either party is domiciled in Scotland. (1ZA) For the purposes of subsection (1), a person is related to another person in a forbidden degree if related to that person in a degree specified in Schedule 1.

(b) in subsection (1A), for the words from the beginning to “paragraph,” substitute “ A person who is related to another person in a degree specified in paragraph 2 of Schedule 1 (relationships by affinity) is not related to that person in a forbidden degree ”,

(1C) For the purposes of paragraph 2 of Schedule 1, “spouse” means— (a) in the case of a marriage between persons of different sexes, a wife in relation to her husband or a husband in relation to his wife; and (b) in the case of a marriage between persons of the same sex, one of the parties to the marriage in relation to the other.

(d) in subsection (7)—

(i) for “those provisions” substitute “ subsection (1C)(a) as it applies to paragraph 2 of Schedule 1 ”, and

(ii) the word “former” in each place where it appears is repealed, and

(e) in subsection (7A)—

(i) for “mother” substitute “ parent ”, and

(ii) the words “in either column” are repealed.

(3) For schedule 1 substitute—

SCHEDULE 1 (1) Relationships by consanguinity - Parent - Child - Grandparent - Grandchild - Sibling - Aunt or uncle - Niece or nephew - Great-grandparent - Great-grandchild (2) Relationships by affinity referred to in section 2(1A) - Child of former spouse - Child of former civil partner - Former spouse of parent - Former civil partner of parent - Former spouse of grandparent - Former civil partner of grandparent - Grandchild of former spouse - Grandchild of former civil partner (3) Relationships by adoption - Adoptive parent or former adoptive parent - Adopted child or former adopted child.

Objections to marriage

2

In section 5(4) of the 1977 Act (objections to marriage)—

(a) paragraph (e) is repealed, and

(b) in paragraph (f), for “than one mentioned in paragraphs (a) to (e) above,” substitute

than— (i) one mentioned in paragraphs (a) to (d) above; or (ii) the ground that the parties are of the same sex,

Preliminaries to marriage

3

(1) The 1977 Act is amended as follows.

(2) In section 3 (notice of intention to marry)—

(a) in subsection (1)—

(i) for paragraph (b) substitute—

(b) if the person has previously been married and the marriage ended on the death of the other party to that marriage, the death certificate of that other party;

, and

(ii) after that paragraph insert—

(ba) if the person has previously been in a civil partnership which ended on the death of the other party to the civil partnership, the death certificate of that other party;

(b) in subsection (2), for “or (b)” substitute “ , (b), (ba) or (bb) ”, and

; or (c) if no such certificate has been issued only by reason of the fact that the parties to the intended marriage are of the same sex.

(3) In section 7(1) (marriage outside Scotland where a party resides in Scotland), after “(b)” insert “ , (ba), (bb) ”.

Meaning of marriage and related expressions in enactments and documents

4

(1) References (however expressed) in any enactment to—

(a) marriage (including a marriage that has ended),

(b) a person who is (or was) married to another person, and

are references to marriage whether between persons of different sexes or persons of the same sex and to a party (or former party), or as the case may be the parties (or former parties), to such a marriage.

(2) Subsection (3) applies to references (however expressed) in any enactment to two people who—

(a) are (or were) not married to each other, but

(b) are (or were) living together as if they were husband and wife.

(3) The references include two people of the same sex who are (or were) not married to, nor in civil partnership with, each other but who are (or were) living together as if they were married to each other.

(4) References (however expressed) in any enactment to two people of the same sex who are (or were) living together as if they were in a civil partnership cease to have effect.

(5) Subsections (1) to (4)—

(a) apply to enactments (other than private Acts) passed or made before the commencement of this section, and

(b) do not apply in so far as the enactment, or any other enactment, provides otherwise.

(6) In so far as being (or having been) married or in a purported marriage is relevant for the operation of any rule of law, the rule of law applies equally in relation to marriage or purported marriage to a person of a different sex and marriage or purported marriage to a person of the same sex.

(7) Subsections (1) to (6) are subject to an order under subsection (8).

(8) The Scottish Ministers may by order provide for any of subsections (1) to (6)—

(a) to have effect subject to provision made by the order, or

(b) not to apply in cases specified in the order.

(9) An order under subsection (8)—

(a) may make different provision for different purposes,

(b) may include consequential, supplementary, incidental, transitional, transitory or saving provision,

(d) is (except where subsection (10) applies) subject to the negative procedure.

(10) An order under subsection (8) which adds to, replaces or omits any part of the text of an Act is subject to the affirmative procedure.

(11) References (however expressed) in any document to—

(a) marriage (including a marriage that has ended),

(b) a person who is (or was) married to another person, and

(12) The following expressions in any document have the meanings given—

(a) “widow” includes a woman whose marriage to another woman ended with the other woman's death,

(b) “widower” includes a man whose marriage to another man ended with the other man's death.

(13) Subsections (11) and (12)—

(a) apply to documents executed on or after the commencement of this section, and

(b) do not apply in so far as the document provides otherwise.

(14) In section 26(2) of the 1977 Act (interpretation), after the definition of “authorised registrar” insert—

“marriage” means marriage between persons of different sexes and marriage between persons of the same sex;

(15) In schedule 1 to the Interpretation and Legislative Reform (Scotland) Act 2010 (definitions of words and expressions), insert at the appropriate place in alphabetical order—

“marriage” means marriage between persons of different sexes and marriage between persons of the same sex (and any reference to a person being (or having been) married to another person, or to two people being (or having been) married to each other, is to be read accordingly),

“widow” includes a woman whose marriage to another woman ended with the other woman's death,

“widower” includes a man whose marriage to another man ended with the other man's death,

Same sex marriage: further provision

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(1) For the avoidance of doubt, the rule of law which provides for a marriage to be voidable by reason of impotence has effect only in relation to a marriage between persons of different sexes.

(2) In section 1 of the Divorce (Scotland) Act 1976 (grounds of divorce), after subsection (3) insert—

(3A) For the avoidance of doubt, in relation to marriage between persons of the same sex, adultery has the same meaning as it has in relation to marriage between persons of different sexes.

Jurisdiction in proceedings relating to same sex marriages

6

Schedule 1, which makes provision about jurisdiction in proceedings relating to same sex marriages, has effect.

Reset: abolition of defence

7

(1) Any rule of law under which a wife who receives or conceals goods stolen by her husband does not commit the offence of reset ceases to apply.

(2) Subsection (1) applies only in relation to things done after the day on which this section comes into force.

CHAPTER 2 — MARRIAGE BETWEEN CIVIL PARTNERS IN QUALIFYING CIVIL PARTNERSHIPS

Marriage between civil partners in qualifying civil partnerships

8

(1) The 1977 Act is amended as follows.

(2) In section 3 (notice of intention to marry), in subsection (1), after paragraph (ba) (inserted by section 3(2)(a)(ii) of this Act), insert—

(bb) if the person is in a qualifying civil partnership within the meaning of section 5(6) with the other party to the intended marriage, an extract from the entry in the civil partnership register relating to the civil partnership;

(3) In section 5 (objections to marriage)—

(a) in subsection (4)(b), after “partnership” insert “ other than a qualifying civil partnership with each other ”, and

(b) after subsection (5) insert—

(6) For the purposes of subsection (4)(b) a “qualifying civil partnership” is a civil partnership which— (a) was registered in Scotland; and (b) has not been dissolved, annulled or ended by death. (7) A civil partnership which was registered outside the United Kingdom under an Order in Council made under Chapter 1 of Part 5 of the Civil Partnership Act 2004 is to be treated for the purposes of subsection (6)(a) as having been registered in Scotland if— (a) the parties to the civil partnership elected Scotland as the relevant part of the United Kingdom under the Order; and (b) details of the civil partnership have been sent to the Registrar General of Births, Deaths and Marriages for Scotland.

Power to modify meaning of “qualifying civil partnership”

9

(1) The Scottish Ministers may by order modify the meaning of “qualifying civil partnership” given by section 5(6) of the 1977 Act (inserted by section 8(3)(b) of this Act) so as to include civil partnerships registered outside Scotland.

(2) An order under subsection (1)—

(a) may make different provision for different purposes,

(b) may include consequential, supplementary, incidental, transitional, transitory or saving provision,

(d) is subject to the affirmative procedure.

(3) Before laying a draft of an order under subsection (1) before the Scottish Parliament, the Scottish Ministers must consult the following persons on a copy of the proposed draft order—

(a) the Registrar General of Births, Deaths and Marriages for Scotland, and

(b) such other persons as the Scottish Ministers consider appropriate.

Change of qualifying civil partnership into marriage

10

(1) The Scottish Ministers may by regulations make provision to establish a procedure for the parties to a qualifying civil partnership to change their civil partnership into a marriage.

(2) Regulations under subsection (1) may in particular make provision—

(a) about the making by the parties to a qualifying civil partnership of an application to change their civil partnership into a marriage,

(b) about the information to be provided in support of an application,

(d) for persons who have made an application to appear before any person or appear at any place,

(e) conferring functions on persons in relation to applications,

(f) for fees, of such amounts as are specified in or determined in accordance with the regulations, to be payable in respect of—

(i) the making of an application,

(ii) the exercise of any function conferred by virtue of paragraph (e).

(3) Functions conferred by virtue of subsection (2)(e) may include functions relating to—

(a) the recording of information relating to qualifying civil partnerships changing into marriages,

(b) the issuing of certified copies of any information recorded.

(4) Before making regulations under subsection (1), the Scottish Ministers must consult the Registrar General of Births, Deaths and Marriages for Scotland.

(5) Regulations under subsection (1)—

(a) may make different provision for different purposes,

(b) may include consequential, supplementary, incidental, transitional, transitory or saving provision,

(d) are (except where subsection (6) applies) subject to the negative procedure.

(6) Regulations under subsection (1) which add to, replace or omit any part of the text of an Act are subject to the affirmative procedure.

(7) In this section “qualifying civil partnership” has the meaning given by section 5(6)(a)(i)(A) of the 1977 Act.

Effect of marriage between civil partners in a qualifying civil partnership

11

(1) This section applies where civil partners in a qualifying civil partnership (within the meaning of section 5(6) of the 1977 Act)—

(a) marry in accordance with that Act, or

(b) change their civil partnership into a marriage in accordance with provision made under section 10(1).

(2) Where this section applies—

(a) the qualifying civil partnership ends on the date on which—

(i) the marriage was solemnised, or

(ii) the change took effect, and

(b) the civil partners are to be treated as having been married to each other since the date on which the qualifying civil partnership was registered.

(3) For the purposes of subsection (2)(b)—

(a) a civil partnership registered under an Order in Council made under section 210 of the 2004 Act is to be treated as having been registered when it is entered in the Register Book maintained under the Order,

(b) a civil partnership registered under an Order in Council made under section 211 of the 2004 Act is to be treated as having been registered when the civil partnership register is signed in accordance with the Order.

(4) Subsection (2)(b) is subject to—

(a) any provision to the contrary made by or under any enactment,

(b) an order under subsection (5).

(5) The Scottish Ministers may by order provide for subsection (2)(b)—

(a) to have effect subject to provision made by the order, or

(b) not to apply in cases specified in the order.

(6) An order under subsection (5)—

(a) may include consequential, supplementary, incidental, transitional, transitory or saving provision,

(b) is subject to the negative procedure.

(7) If a decree of aliment under section 3 of the Family Law (Scotland) Act 1985 (powers of court in action for aliment) requiring one of the civil partners to make payments to the other is in force at the time the qualifying civil partnership ends by virtue of subsection (2)(a) of this section, the decree continues to have effect despite the ending of the civil partnership.

(8) If an order under section 103(3) or (4) of the 2004 Act (regulation by court of rights of occupancy of family home) is in force at the time the qualifying civil partnership ends by virtue of subsection (2)(a) of this section the order has effect from that time as if made under section 3(3) or, as the case may be, 3(4) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (regulation by court of rights of occupancy of matrimonial home).

(9) In section 1 of the 2004 Act (provision for civil partnership), after subsection (3) insert—

(3A) Subsection (3) is subject to section 11(2)(a) of the Marriage and Civil Partnership (Scotland) Act 2014 (ending of certain civil partnerships on marriage under Scots law).

CHAPTER 3 — SOLEMNISATION OF MARRIAGE

Persons who may solemnise marriage

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(1) The 1977 Act is amended as follows.

(2) In section 8 (persons who may solemnise marriage)—

(a) in subsection (1)—

(i) after “marriage” in the first place where it appears insert “ between persons of different sexes ”,

(ii) in paragraph (a)(ii)—

(A) for “or priest of a religious body” substitute “ priest or other celebrant of a religious or belief body ”,

(B) for “religious body” in the second place it appears substitute “ religious or belief body ”, and

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