The recent furore (see No 254) about whether legislation concerning same-sex couples should be home-grown in the Scottish Parliament, or sent back to Westminster to be drafted on a UK-wide basis, could be avoided by following the very simple solution pioneered in the Netherlands. In Holland, as well as the possibility of registering as a same-sex civil partnership, it is also possible for two parties of the same sex to legally marry. The statute accomplishing this was extremely short, and could be replicated in a Scottish bill of a couple of causes which, on technical matters at least, would take up no or little Parliamentary time. In essence, all the Scottish Parliament would need to do would be to pass a law stating that a marriage as defined in the Marriage (Scotland) Act 1977 should be amended so that there was no legal impediment where both parties were of the same sex. Minor linguistic amendments would need to be made a to a variety of other Acts for clarity.
The value of such an approach is that all the legal consequences which flow from marriage would then be available to same-sex couples as well and would, as with different-sex married couples currently, be different for couples living north and south of the border. This would be true whether those legal consequences fell into the domain of private law, where the Scottish parliament has legislative priority, i.e., in areas such as financial provision on divorce, parental rights, property and inheritance rights; or in the domain of public law, where Westminster has exclusive competence, with reference to matters such as tax, social security and housing law. Accordingly, both of the current major bogeymen would be avoided: Westminster would not have to draft legislation relating to the very different Scots laws on marriage, property etc (and not run the risk of getting it horribly wrong); nor would, as some Scottish ministers have warned, the result be a patchwork of different rights encouraging Scots gay couples to marry south of the border. Private law is determined by one’s domicile i.e., one’s permanent home – hence Scots gay couples marrying in England would still have their divorce matters settled by where they lived i.e. the law of Scotland.
The solution also has the advantage that in this era of global peripaticism, marriage is an institution which is generally recognised all over the world while civil partnerships are something of a new and slightly suspicious innovation. So a Scottish gay married couple who moved from Scotland to say, Canada, would probably have far less trouble getting legal recognition of their rights as married partners in Canada than they would of rights as a gay couple in some kind of Scottish civil partnership. Rules exist for the recognition of foreign marriages, which can be tweaked to include gay marriages; they have not yet been invented for civil partnerships.
Of course this most simple of solutions legally is probably the most difficult to deal with politically. However it would at least separate the spurious issues of legal complexity and Parliamentary time from the real issue: the Scottish Executive’s fear of the Roman Catholic Church and its loyal voters.
Lecturer in Family Law, Edinburgh University