Objections to marriage 8. Section 5 of the Act provides for situations where there is an objection to a marriage proceeding. Section 5 4 lists the legal impediments to a marriage. Section 2 of the Act repeals the legal impediment of both parties being of the same sex, so that marriages between two people of the same sex can take place in Scotland, once the Act is commenced. Section 2 of the Act also amends section 5 4 of the Act in relation to cases where one or both of the parties are not domiciled in Scotland.
The amendment makes it clear that even if a same sex marriage would be void according to the law of the domicile of one or both of the parties, that is not a barrier to the parties entering into a same sex marriage in Scotland. Preliminaries to marriage This section makes some amendments to sections 3 and 7 of the Act. Section 3 of the Act makes provision about the procedures a couple must go through when they want to marry. They must submit to a district registrar a notice of intention to marry, with the prescribed fee, their birth certificates and certain other documents, which are specified in section 3 of the Act.
Despite the change in terminology, the effect of the provision remains the same. When a marriage has ended because one of the parties has died, a person who is marrying again has to provide the death certificate of the deceased party.
Section 3 1 of the Act is also amended so that any person who wants to get married who has a civil partner who has died is required to submit the relevant death certificate. Section 8 of the Act amends section 3 of the Act so that if a person who wants to get married is changing from a civil partnership to a marriage, that person must submit a relevant extract from the civil partnership register.
Section 3 2 of the Act makes provision in cases where someone intending to get married cannot supply the birth certificate or some of the other documents required by section 3 1. In essence, a person in this position has to supply the district registrar with a declaration on why the documents cannot be submitted.
The obligation in section 3 2 of the Act is extended by subsection 2 b so that it also applies to the additional documents required as set out in paragraph 15 above. For more information on the process of changing from a civil partnership to a marriage, see the explanatory notes on sections 8 to Section 3 5 of the Act makes provision where one or both of the parties to the marriage is not domiciled in Scotland.
There are some exceptions in section 3 5 to the need to supply such a certificate. Subsection 2 c amends section 3 5 to provide that a certificate is not required if it would not be issued just because the parties to the marriage are of the same sex.
When applying, the person must submit certain documents to the registrar. Subsection 3 amends section 7 1 so it refers also to the death certificate when a civil partnership has ended by death and an extract from the entry in the civil partnership register where civil partners are changing their civil partnership to a marriage. Meaning of marriage and related expressions in enactments and documents The provisions of section 4 apply only to devolved legislation — legislation that is within the legislative competence of the Scottish Parliament.
Examples Section 1 of the Divorce Scotland Act makes provision on the irretrievable breakdown of marriage being a ground for divorce. By virtue of section 4 of this Act, this will apply to both opposite sex and same sex marriages. Section 1 of the Family Law Scotland Act makes provision on who owes an obligation of aliment. Under section 1, an obligation of aliment is owed by a husband to his wife and by a wife to her husband. By virtue of section 4 of this Act, the obligation is also owed by a spouse to his or her same sex spouse.
Subsections 2 and 3 make provision in respect of references in legislation to cohabitants, so it is clear they apply to same sex cohabitants too. Subsection 4 provides that references in legislation to two persons of the same sex who are or were living together as if they are or were in a civil partnership i.
Once the Act comes into force, such references will be unnecessary as same sex cohabitants will be covered by the provision made in subsections 2 and 3. The provisions at section 4 2 to 4 of this Act mean that the reference to living together as if husband and wife extends to persons of the same sex living together as if married and the reference to living together as if civil partners ceases to have effect.
Subsection 5 makes it clear that subsections 1 to 4 only apply to enactments, other than private Acts, passed or made before section 4 is commenced. As outlined below, subsection 15 makes changes to the Interpretation and Legislative Reform Scotland Act in respect of future legislation.
Subsection 5 also makes it clear that subsections 1 to 4 do not apply if the enactment or any other enactment provides otherwise. Subsection 6 ensures that where being or having been married or in a purported marriage is relevant in the common law, the law applies equally to opposite sex and same sex marriage. Subsection 8 empowers the Scottish Ministers to make an order, which due to subsection 9 will generally be subject to the negative procedure, to disapply or modify the effect of subsections 1 to 6.
Subsection 9 ensures that any order under subsection 8 may amend primary and secondary legislation. Subsection 10 ensures that, despite an order under subsection 8 generally being subject to negative procedure, any such order which amends primary legislation is subject to affirmative procedure. By virtue of subsection 13 , subsections 11 and 12 do not apply to documents where the document provides otherwise.
Therefore, if a document executed after section 4 comes into force refers to a person being in an opposite sex marriage, subsection 11 would not enable that reference to be read as meaning a same sex marriage as well.
An example would be the separate provisions of the Act, as amended or inserted by this Act, on solemnising opposite sex and same sex marriage. This section makes provision relating to the introduction of same sex marriage and its effect on certain aspects of Scots law. Subsection 1 makes provision in respect of permanent and incurable impotency. In Scotland, a marriage is voidable i.
Subsection 1 provides that this rule of law only applies to opposite sex marriages. Under the Act, there are two grounds of divorce in Scotland: Section 1 2 of the Act provides a number of ways in which the irretrievable breakdown of a marriage can be established. One of those ways is adultery. Adultery means in the common law sexual intercourse between a man and a woman. This means that a spouse in a same sex marriage could, like a spouse in an opposite sex marriage, raise an action for divorce saying that the marriage has broken down irretrievably because the other spouse in the marriage has committed adultery i.
However, subsection 2 does not extend adultery to cover sexual activity between people of the same sex. Therefore, the ways of establishing irretrievable breakdown of a marriage remain unchanged.
Neither an opposite sex spouse nor a same sex spouse can raise an action for divorce saying that the marriage has broken down irretrievably because the other party in the marriage has had sexual intercourse with a person of the same sex.
Instead, the divorce action would have to put forward other reasons for irretrievable breakdown, such as unreasonable behaviour. Jurisdiction in proceedings relating to same sex marriages This section introduces schedule 1 on the jurisdiction of the Scottish courts in proceedings relating to same sex marriages.
This schedule is explained at paragraphs to of these Explanatory Notes. This section repeals the defence for wives against the crime of reset. It is a crime to receive goods stolen by another. Subsection 1 abolishes the common law defence to the crime where the person accused of reset is the wife, and the goods were stolen by her husband. Subsection 2 provides that the repeal of the defence to the crime of reset is abolished the day after the provision is brought into force.
This means that the repeal will not affect anyone who is relying on the defence prior to this section being commenced. Chapter 2 — Marriage between civil partners in qualifying civil partnerships Overview This Chapter relates to changing a civil partnership to a marriage and the legal effect of doing so.
Marriage between civil partners in qualifying civil partnerships In addition, the civil partnership must not have been dissolved, annulled or ended by death. Subsection 3 also adds provisions to section 5 of the Act about civil partnerships registered at British consulates overseas and civil partnerships registered by British armed forces personnel. Subsection 2 amends section 3 of the Act so that when a couple change their civil partnership to a marriage they have to provide to the district registrar an extract from the entry in the civil partnership register relating to the civil partnership.
Subsection 3 a amends section 5 4 b of the Act about legal impediments to marriage. This section allows the Scottish Ministers to extend by order the category of civil partnerships which can change their relationship to marriage in Scotland. This power could be used to enable civil partners in a partnership registered outwith Scotland to change their civil partnership to a marriage in Scotland. Subsection 2 provides the order may amend primary or secondary legislation and is subject to affirmative procedure.
Subsection 3 requires the Scottish Ministers to consult the Registrar General of Births, Deaths and Marriages for Scotland and such other persons as considered appropriate on a copy of the proposed draft order before laying a draft of any such order before the Scottish Parliament. Change of qualifying civil partnership into marriage Section 10 makes provision so that qualifying civil partnerships can be changed to a marriage in accordance with an administrative procedure which may be prescribed by the Scottish Ministers in regulations.
The definition also includes certain overseas civil partnerships treated as having been registered in Scotland see section 5 7 of the Act, inserted by section 8 3 of this Act. The definition could be modified by the use of the power in section 9 of the Act. Subsection 2 provides that regulations may in particular make provision on: Subsection 3 makes provision on particular functions which may be conferred ; fees subsection 2 f. Subsections 4 to 6 make provision on procedures in relation to any regulations made by the Scottish Ministers.
Under subsection 4 , the Scottish Ministers must consult the Registrar General before making any regulations. Under subsections 5 and 6 , any regulations are subject to negative Parliamentary procedure unless they amend primary legislation, in which case they are subject to the affirmative procedure. Effect of marriage between civil partners in a qualifying civil partnership This section makes provision on the effect of civil partners changing their relationship to a marriage.
Subsection 1 ensures that this provision applies to civil partners who change their relationship registered in Scotland to a marriage, regardless of whether they make this change through having a marriage ceremony section 8 of the Act or through the administrative route section 10 of the Act.
Subsection 2 a provides that the qualifying civil partnership ends when the marriage is solemnised or the change took effect and subsection 2 b provides that 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. Subsection 2 a ensures that the couple do not have two civil statuses married and in a civil partnership at the same time. Subsection 2 b ensures that their time in the civil partnership is treated as if they had been married.
For example, this means that provisions in the Family Law Scotland Act , which covers matters such as financial provision during marriage and on divorce, applies to property acquired during and for the civil partnership as well as to property acquired during and for the marriage.
Civil partnerships at consulates are treated as registered when they are entered in the Register Book. Civil partnerships through the armed forces are treated as registered when the register is signed.
Subsection 4 makes provision so that subsection 2 b is subject to any contrary provision made in legislation and any order made under subsection 5. For example, provision may be needed in relation to civil partnerships which turn out to be void but are changed into marriage before it is realised that they are void so the marriage is not backdated to when the civil partnership first started.
In addition, there may be a need to recognise any court decrees from outwith Scotland which relate specifically to civil partnerships. The scope of any order and its Parliamentary procedure are set out in subsection 6. Subsection 7 provides that any decree of aliment requiring one civil partner to make payments to the other which is in force when a civil partnership ends because it has been changed into a marriage continues to have effect.