The Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Provisions) Order 2014

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes amendments to primary legislation as a consequence of the coming into force of the Marriage (Same Sex Couples) Act 2013 (c. 30) (“the Act”). It also makes amendments in consequence of the Civil Partnership Act 2004 (c.33) to correct previously omitted references to civil partners, and, in relation to Scotland, in consequence of the Marriage and Civil Partnership (Scotland) Act 2014 (2014 asp 5).

Some provisions of the Act are already in force and two orders making consequential amendments (as well as other provision) have already been made, being the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014 (S.I. 2014/560) and the Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014 (S.I. 2014/107). Various other statutory instruments have also been made. The provisions of the Act being brought into force on 10th December 2014 mainly concern the conversion of civil partnerships into marriages (“conversions”) and allow, subject to certain conditions, a couple to remain married if one or both of them changes their legal gender.

The Marriage and Civil Partnership (Scotland) Act 2014 makes marriage of same sex couples lawful in Scotland and makes similar changes to the Act in Scotland to allow couples in a civil partnership to change this to a marriage and for couples who are married to remain so, where one or both of them changes legal gender. The Marriage and Civil Partnership (Scotland) Act 2014 will come into force on 16th December 2014.

Article 2 and the Schedule make consequential amendments to primary legislation. Paragraph 1 of the Schedule amends the Wills Act 1837 (c. 26) to provide that the conversion of a civil partnership into a marriage under the law of England and Wales does not revoke any existing will or affect any disposition in such a will and also ensures that where section 18B(2) to (6) applies to any will or disposition in a will, that the conversion does not affect that previous application. It also makes provision for references in a will to a civil partnership or civil partners to be read as referring to a marriage or married couple if the civil partnership is converted into a marriage, subject to any contrary intention appearing from the will. These changes to the law of England and Wales on wills will also apply to a marriage resulting from the change of a civil partnership under the law of Scotland.

Paragraphs 2 and 10 amend respectively the Perjury Act 1911 (c. 6) and the Forgery and Counterfeiting Act 1981 (c. 45) so as to ensure offences relating to official registers also apply to the register of conversions which will be kept following the coming into force of section 9 of the Act.

Paragraph 3 amends the Marriage Act 1949 (c. 76). The amendment to section 45 reflects the fact that the Act inserted sections 44A to 44D into the Marriage Act 1949 and clarifies a cross reference in section 45. The amendments to section 46 have been made as a consequence of it becoming possible to convert a civil partnership into a marriage.

Paragraph 4 amends the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957 (c. 58) to ensure that sections 1 and 3 apply appropriately to marriages resulting from conversions. Section 3(2) has also been amended to insert a reference to civil partnerships.

Paragraph 5 amends the Public Libraries and Museums Act 1964 (c. 75) to ensure that Schedule 1 to that Act extends as appropriate to all surviving spouses and civil partners.

Paragraph 6 amends provisions in the Matrimonial Causes Act 1973 (c. 18) which concern the circumstances in which a marriage is held to be void or voidable and makes provision for marriages which result from a conversion.

Paragraph 7 amends the Domicile and Matrimonial Proceedings Act 1973 (c. 45) to ensure Schedule 1 to that Act covers marriages which result from a conversion.

Paragraph 8 amends section 59 of the Social Security Pensions Act 1975 (c. 60) to make provision for married couples where one or both have acquired a new legal gender. In certain circumstances such couples will be treated as if the change of legal gender had not occurred.

Paragraph 9 amends the Legitimacy Act 1976 (c. 31) so as to ensure that section 1 applies as appropriate to the children of void marriages which result from a purported conversion.

Paragraph 11 amends the Social Security Contributions and Benefits Act 1992 (c. 4) to make further provision for the case where a female pensioner’s spouse has died. The amendment applies where her dead spouse had changed legal gender from male to female during the course of the marriage. The widow will be treated for the purpose of inheriting the dead spouse’s deferred retirement pension under Schedule 5 to this Act as if the change of legal gender had not occurred.

Paragraph 12 amends the Social Security Administration Act 1992 (c. 5) to make provision about records of marriage resulting from conversions.

Paragraph 13 amends the Statistics and Registration Service Act 2007 (c. 18) to allow for personal information concerning conversions to be made available and shared by the relevant authorities.

Section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to the Act provide that references in existing England and Wales legislation to marriage or to married persons are to be read as including marriages between same sex couples and persons married to someone of the same sex. Article 3 disapplies the effect of this statutory gloss from specific provisions of the Reserve Forces Non Regular Permanent Staff (Pension and Attributable Benefits Schemes) Regulations 2011.

Article 4 of the Order revokes article 5 of the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014 (S.I. 2014/560). The revocation will take effect from 16th December 2014 which is when section 4(1) of the Marriage and Civil Partnership (Scotland) Act 2014 comes into force. That section will allow couples married under the law of England and Wales to have their marriages recognised under the law of Scotland, and so article 5, which provided for couples married under the law of England and Wales to be treated as civil partners under the law of Scotland, will no longer be needed. Article 5 of this Order makes transitional and saving provision in relation to the revocation.

This Order extends to England and Wales only, save as identified in article 6, which provides certain provisions extend also to Scotland.

A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen over and above that identified in the Impact Assessment published when the Act received Royal Assent on 17th July 2013.