… of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019
The Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, (“the Act”) was granted Royal Assent on 26th March 2019; however, since this is comprised of enabling provisions, additional secondary legislation is necessary before these provisions pass into law. The first – The Draft Civil Partnership (Opposite-sex Couples) Regulations 2019 – has now been laid before Parliament, but as with the other provisions, it is subject to the affirmative resolution procedure, which is problematic in view of the associated time constraints (see 3.1 below). An earlier post summarized the Act and the provisions which require secondary legislation: registration of marriages and civil partnerships; civil partnerships for opposite sex couples; registration of pregnancy loss; and coroners’ investigations into stillbirths.
This post considers Opposite sex civil partnerships and includes verbatim extracts (plus added links and comments) from the Draft Explanatory Memorandum to these draft regulations, for which a Draft Final Impact Assessment has also been prepared.
[Update: On the afternoon of 31 October, MPs approved the draft Civil Partnership (Opposite-sex Couples) Regulations 2019, without a division. It will now be considered by the House of Lords on Tuesday 5 November.]
2. Purpose of the instrument
2.1 The purpose of this instrument is to allow two people who are not of the same sex to form a civil partnership in England and Wales. This instrument provides in the main for an opposite-sex couple who form a civil partnership to be treated in law in the same way as a same-sex couple who are in a civil partnership, but there are some exceptions (most notably in the law relating to parenthood and parental responsibility) where the instrument provides for them to be treated instead in the same way as an opposite-sex married couple.
3. Matters of special interest to Parliament
Matters of special interest to the Joint Committee on Statutory Instruments
3.1. This instrument is likely to come into force less than 21 days before the date on which it is made …
3.2 … The instrument is to come into force on 2 December, subject to Parliamentary time and approval, to enable opposite sex couples who wish to form a civil partnership time to give the requisite 28 days’ notice and hold the ceremony by the end of the year. This is in response to considerable pressure in Parliament for the first opposite-sex civil partnerships to be registered before the end of 2019.
[In fact, section 2.(2) of the Act requires the Secretary of State to exercise the power in section 2.(1) so that such regulations are in force no later than 31 December 2019].
3.3 The territorial application of this instrument varies between provisions, and includes Scotland and Northern Ireland.
[This is detailed in Section 4 of the Explanatory Memorandum]
6.2 This instrument gives effect to government commitments made during the passage of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 (“the 2019 Act”) to extend civil partnerships to opposite-sex couples in England and Wales and discharges the duty to do so under that Act …
6.4 This instrument:
- Amends the eligibility criteria in the 2004 Act to allow opposite-sex couples to register civil partnerships under the law of England and Wales.
- Amends the 2013 Act to maintain the current position on conversion rights, so that only same-sex couples will be able to convert their civil partnerships to marriage for now. This approach avoids making short-term changes ahead of the outcome of the public consultation on the future of conversion rights conducted earlier this year (see below). Further regulations on conversion rights may follow next year, depending on the outcome of the consultation.
- Makes consequential and related changes to primary and secondary legislation.
6.5 On 1 October the Scottish Government introduced the Civil Partnership (Scotland) Bill in the Scottish Parliament, which will allow opposite-sex couples in Scotland to form a civil partnership.
6.6 The Northern Ireland (Executive Formation etc.) Act 2019 places a duty on the Secretary of State to make regulations amending the eligibility criteria in the 2004 Act to allow opposite-sex couples to form civil partnerships in Northern Ireland. The regulations must be in force no later than 13 January 2020 …
7.5 In the “Implementing Opposite-Sex Civil Partnerships: Next Steps” document, published in July 2019 (the ‘Next Steps paper’), the government explained its intention to maintain the existing right for same-sex civil partners to convert their relationship into a marriage, pending decisions about the future of conversion. These decisions will be made in light of the responses to the consultation on future conversion rights, which was published at the same time.
[That consultation sought views on a number of issues, including whether opposite-sex married couples should be able to convert their relationships to civil partnerships and whether, after a fixed period of time, all conversion rights should then be brought to an end.]
7.6 Maintaining the existing conversion right [ffor same-sex civil partners to convert their relationship into a marriage] for an interim period … does produce a difference in treatment between opposite and same-sex couples. It is considered to be compatible with the judgment in R (Steinfeld and Keidan) v Secretary of State for International Development  UKSC 32 for a number of reasons.
7.7 First, opposite-sex couples wishing to convert civil partnerships to marriage are not in a relevantly similar position to same-sex couples in relation to such conversion. The right to convert a civil partnership to marriage was introduced to enable same-sex couples to marry without having to dissolve their civil partnership, as marriage had historically been denied to them. That same consideration does not apply to opposite sex couples, who have always been able to marry. The right to convert from civil partnership to marriage continued to be available after same-sex marriage was introduced so that couples could remain in a formalised relationship if one party changed gender. Again, that consideration now falls away because couples in a civil partnership, whether same-sex or opposite-sex, will be able to remain in a civil partnership on the change of gender of one partner, provided the other partner consents (see paragraph 7.12 below).
7.8 Second, extending conversion rights to allow opposite-sex couples to convert their civil partnership to marriage in the interim period, whilst the consultation responses are being considered, would risk creating uncertainty and confusion about future rights. The government does not wish to introduce a new, potentially short-term, conversion right (with associated consequential changes) for opposite-sex couples that might subsequently be withdrawn in 2020 following proper consideration of the consultation responses.
In addition, allowing opposite-sex couples to convert their civil partnerships to marriage in this interim period is unnecessary as it is highly unlikely that any opposite-sex civil partners would wish to convert a relationship so recently formed, and in circumstances where the couple could have chosen to marry. As to according opposite-sex couples a right to convert marriage to civil partnership, that is not a right currently accorded to same-sex couples. It will, however, be a matter considered in light of responses to the consultation.
[With regard to the policy objectives and the intended effects of the Regulations, the Impact Assessment published in July 2019 referred to “the ability to convert from a civil partnership to a marriage and vice versa”. This is now apparently dependent upon the outcome of the Consultation]
7.9 Part 2 of this instrument extends civil partnerships to opposite-sex couples in England and Wales, by amending the definition of civil partnerships and the eligibility criteria for registering as civil partners in the 2004 Act, to remove the same-sex requirement. It also amends Part 5 of the 2004 Act so that certain opposite-sex relationships formed in other countries, which are not marriages, can be recognised as civil partnerships in England and Wales.
7.10 Part 3 provides specific protections for religious organisations and persons acting on their behalf. The religious protections are modelled on those contained in the 2013 Act but recognise the potential for diversity of religious views in this area, particularly that some religious organisations may choose not to be involved in any civil partnerships, others may be content to host only civil partnerships between same-sex couples, and others may prefer only to be involved in civil partnerships between opposite-sex couples. In particular, this instrument:
- Amends the regime in place for the approval of religious premises as places at which two people may register as civil partners of each other. The changes will mean that religious premises can be approved for all civil partnerships, only for those between two people of the same sex, or only for those between two people of the opposite sex. As now, applications for approval of religious premises can only be made with the consent of the governing authority of the religious organisation. The consent will have to state what kind of civil partnerships are consented to.
- Introduces a new ‘non-compulsion’ clause so that religious organisations and persons acting on their behalf cannot be compelled to do specified acts (such as allowing religious premises to be used for civil partnerships, or participating in civil partnerships on religious premises), where either the organisation, or the person, does not wish to do such acts in relation to all civil partnerships, or in relation to civil partnerships between either same-sex or opposite-sex couples.
- Amends the Equality Act 2010 so that religious organisations and persons acting on their behalf do not breach that Act if they do not act in relation to civil partnerships in reliance on the new non-compulsion clause.
7.11 Part 4 amends legislation relating to children and parenthood to provide opposite-sex parents in a civil partnership with generally the same rights as opposite-sex married parents in a number of areas to do with parenthood …
7.12 Part 5 of this instrument amends the Gender Recognition Act 2004, which enables individuals to apply for a gender recognition certificate to change their sex and gender in law …
7.13 Part 6 makes miscellaneous amendments …
[There are also three Schedules relating to: opposite-sex relationships under the law of other countries that can be recognised as civil partnerships in England and Wales; transitional provision in relation to opposite-sex overseas relationships that will be recognised as civil partnerships in England and Wales; and consequential and related amendments.]
7.17 The government set out its proposals for this legislation in the Next Steps paper, published on 10 July 2019. This document was accompanied by a consultation on the right to convert a civil partnership to marriage and vice versa. The consultation closed on 20 August and the government is considering responses to this. If the government decides to legislate on conversion rights, a further instrument may follow in 2020.
7.18 There is uncertainty over the estimated take up of opposite-sex civil partnerships in England and Wales. The Impact Assessment that accompanied the ‘Next Steps’ document estimated that there will be around 70,000-75,000 per year (central estimate).
10 Consultation outcome
10.1 The ‘Next Steps’ document set out the government’s proposed changes to existing legislation in order to allow opposite-sex couples in England and Wales to form civil partnerships. This followed engagement with key stakeholders, including religious organisations, the Equal Civil Partnerships campaign and LGBT groups on most of the key issues, including the decision to restrict conversion rights to same-sex couples pending decisions about future conversion rights. The Secretary of State has therefore complied with the requirement, in section 2(6) of the 2019 Act, to consult such persons as the Secretary of State considers appropriate before making regulations restricting conversion rights. The longer-term position on conversion rights will be determined following the outcome of the consultation that accompanied the ‘Next Steps’ document, which closed on 20 August.
10.2 Officials in the Welsh Government have agreed to the amendments to Welsh legislation made in Schedule 3 to this instrument …
11.1 The government will update the guidance on civil partnerships on the gov.uk website around the time of implementation. The General Register Office will also issue guidance on these changes to local registration services
Russell Sandberg has also posted “a quick run-down” of these draft proposals, updating his earlier post.
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