STATUTORY INSTRUMENTS

2014 No. 560

MARRIAGE

CIVIL PARTNERSHIP

HUMAN FERTILISATION AND EMBROYOLOGY

The Marriage (Same Sex Couples) Act 2013 (Consequential and

Contrary Provisions and Scotland) Order 2014

Made 6th March 2014

Coming into force in accordance with article 1(2) and (3)

A draft of this Order was laid before and approved by a resolution of each House of Parliament in accordance with section 18(2) of the Marriage (Same Sex Couples) Act 2013 (1), section 259(8) of the Civil Partnership Act 2004 (2) and section 62(3) of the Human Fertilisation and Embryology Act 2008 (3).

In accordance with section 18(11)(a) of the Marriage (Same Sex Couples) Act 2013, the Secretary of State has obtained the consent of the Scottish Ministers to the making of article 5 of, and paragraph 31 of Schedule 1 to, this Order.

This Order is made in exercise of the powers conferred by sections 17(2), (3) and 18(10) of, and paragraph 1(1) of Schedule 2 and paragraph 27(3)(a) and (b) of Schedule 4 to, the Marriage (Same Sex Couples) Act 2013, and in exercise of the powers conferred by section 259(1) and (3) of the Civil Partnership Act 2004 and by section 64(1) and (2) of the Human Fertilisation and Embryology Act 2008.

The Secretary of State, in exercise of those powers, makes the following Order:

Citation, commencement and interpretation

1.—(1) This Order may be cited as the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014.

(2) Subject to paragraph (3), this Order comes into force on 13th March 2014.

(3) The amendment made to the Family Law (Scotland) Act 2006 (4) at paragraph 31 of Schedule 1 comes into force on 3rd June 2014.

(4) In this Order—

“the Act” means the Marriage (Same Sex Couples) Act 2013; and

“the 2004 Act” means the Civil Partnership Act 2004.

Consequential amendments to Acts of Parliament

2. Schedule 1 to this Order (which amends primary legislation in consequence of the Act, the 2004 Act and the Human Fertilisation and Embryology Act 2008) has effect.

Contrary provision to section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act

3. Schedule 2 to this Order (which makes provision to which section 11(1) and(2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act are subject and which disapplies that section and those paragraphs in specified cases) has effect.

Consequential amendments to enactments etc. as a result of contrary provision made by Schedule 2

4. Schedule 3 to this Order (which makes amendments to enactments etc. in consequence of the provision made by Schedule 2 to this Order) has effect.

Scotland

5. Under the law of Scotland, a marriage of a same sex couple under the law of England and Wales is to be treated as a civil partnership formed under the law of England and Wales, and accordingly, the spouses are to be treated as civil partners.

Extent

6.—(1) Subject to paragraphs (2) to (4), this Order extends to England and Wales only.

(2) The amendment to the Family Law (Scotland) Act 2006 at paragraph 31 of Schedule 1, and article 2 so far as it relates to that paragraph, extend to Scotland only.

(3) The following provisions extend also to Scotland—

(a) article 1,

(b) the amendment to the 2004 Act at paragraph 29(1) and (2) of Schedule 1, and article 2 so far as it relates to that paragraph,

(c) article 5, and

(d) this article.

(4) The following provisions extend also to Northern Ireland—

(a) article 1,

(b) the amendment to the 2004 Act at paragraph 29(1) and (2) of Schedule 1, and article 2 so far as it relates to that paragraph, and

(c) this article.

Maria Miller

Secretary of State for Culture, Media and Sport and

Minister for Women and Equalities

6th March 2014

SCHEDULE 3

Consequential amendments to enactments etc. as a result of contrary provision made by Schedule 2

PART 2

Enactments etc. (public service pension schemes)

17.—(1) Pension schemes referred to in the first column of the table at sub-paragraph (2) are amended in the appropriate place as specified in the second column by the insertion of—

(a) the following provision, with the number 1 substituted by the appropriate number specified in the third column—

“Marriage of a same sex couple

1.—(1) In this Scheme—

(a) a reference to civil partnership is to be read as including a reference to marriage of a same sex couple,

(b) a reference to civil partners is to be read as including a reference to a married same sex couple, and

(c) a reference to a person who is in a civil partnership is to be read as including a reference to a person who is married to a person of the same sex.

(2) Where paragraph (1) requires a reference to be read in a particular way, any related reference (such as a reference to a civil partnership that has ended, or a reference to a person whose civil partnership has ended) is to be read accordingly.

(3) For the purposes of paragraphs (1) and (2) it does not matter how a reference is expressed.

(4) Paragraph 1 of Schedule 3 to the Marriage (Same Sex Couples) Act 2013 does not apply to the interpretation of this Scheme.

(5) Section 11(1) and (2) of, and paragraph 3 of Schedule 3 to, that Act have effect subject to paragraphs (1) to (3).”, and

(b) the following provision, with the number 2 substituted by the appropriate number specified in the fourth column—

“Living together as a same sex couple

2.—(1) In this Scheme—

(a) a reference to persons who are not in a civil partnership but are living together as civil partners is to be read as including a reference to a same sex couple who are not married but are living together as a married couple, and

(b) a reference to a person who is living with another person as if they were in a civil partnership is to be read as including a reference to a person who is living with another person of the same sex as if they were married.

(2) Where paragraph (1) requires a reference to be read in a particular way, any related reference (such as a reference to persons formerly living together as civil partners) is to be read accordingly.

(3) For the purposes of paragraphs (1) and (2) it does not matter how a reference is expressed.

(4) Paragraph 2 of Schedule 3 to the Marriage (Same Sex Couples) Act 2013 does not apply to the interpretation of this Scheme.

(5) Section 11(1) and (2) of, and paragraph 3 of Schedule 3 to, that Act have effect subject to paragraphs (1) to (3).”.

(2) The table referred to in sub-paragraph (1) is as set out below—

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 majority of the provisions of the Marriage (Same Sex Couples) Act 2013 (c. 30) (“the Act”). The Order comes into force on 13th March 2014 (except for the provision made by paragraph 31 of Schedule 1 which comes into force on 3rd June 2014). A separate Order (the Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014) making consequential amendments to subordinate legislation is also coming into force on 13th March 2014.

The Order also makes consequential amendments to primary legislation which should have been made as part of the implementation of the Civil Partnership Act 2004 (c. 33) (“the 2004 Act”) and the Human Fertilisation and Embryology Act 2008 (c. 22) (“the 2008 Act”) but which were inadvertently omitted in the orders making consequential amendments to those Acts. The Order corrects these omissions.

The Order also makes provision concerning the effect of the statutory gloss set out in section 11(1) and (2) of, and paragraphs 1 to 3 of Schedule 3 to, the Act (“the gloss”). Section 11(1) provides that in the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples. Section 11(2) provides that the law of England and Wales (including all England and Wales legislation whenever passedor made) has effect in accordance with subsection (1). Paragraphs 1 to 3 of Schedule 3 provide that, in existing English and Welsh legislation, a reference to a marriage is to be read as including a reference to the marriage of a same sex couple, a reference to a married couple is to be read as including a reference to a married same sex couple, and a reference to a person who is married is to be read as including a reference to a person who is married to a person of the same sex. Paragraph 1(2) of Schedule 3 provides that related references such as a reference to a person whose marriage has ended are to be read in the same way.

In addition, Schedule 3 to the Act provides that references to persons who are not married but living together as if they are married are to be read as including references to a same sex couple who are not married but living together as a married couple; and that a reference to a person who is living with another person as if they were married is to be read as including a reference to a person who is living with another person of the same sex as if they were married.

Paragraph 27 of Schedule 4 to the Act makes provision about when the gloss described above is subject to contrary provision i.e. disapplied or when it is to apply but subject to other provision. The Order makes contrary provision to the gloss in both primary and secondary legislation.

The Order extends only to England and Wales subject to the following exceptions: article 5 also extends to Scotland; the amendment to the 2004 Act made in paragraph 29(1) and (2) of Schedule 1 also extends to Scotland and Northern Ireland; finally, the amendment to the Family Law (Scotland) Act (2006 asp. 2) made by paragraph 31 of Schedule 1 extends only to Scotland.

As set out above, article 2 of, and Schedule 1 to, the Order make consequential amendments to primary legislation as a result of the extension of marriage to same sex couples, as well as consequential amendments as a result of the 2004 Act and the 2008 Act.

Part 2 of Schedule 3 is concerned with public service pension schemes. These are occupational pension schemes established to provide pensions for particular public sector workers. Schedule 3 makes amendments in respect of various public service pension schemes which follow the approach taken in the Act.

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.

(1) 2013 c.30. Back

(2) 2004 c.33. Back

(3) 2008 c.22. Back

(4) 2006 asp. 2. Back

(5) The scheme is in Schedule 2 to S.I. 1992/129; Schedule 2 is the subject of amendments not relevant to this Order. The name of the scheme was changed to the Firefighters’ Pension Scheme by S.I. 2004/2306. By virtue of S.I. 2006/3432, subject to certain savings, the scheme has no effect in relation to any person who takes up employment with an English fire and rescue authority on or after 6th April 2006. Back

(6) The scheme is in Schedule 2 to S.I. 1992/129; Schedule 2 is the subject of amendments not relevant to this Order. The name of the scheme was changed to the Firefighters’ Pension (Wales) Scheme by S.I. 2004/2918 (W. 257). By virtue of S.I. 2007/1072 (W. 110), subject to certain savings, the scheme has no effect in relation to any person who takes up employment with a Welsh fire and rescue authority on or after 6th April 2006. Back

(7) S.I. 1997/1612; these Regulations were revoked, with savings, by S.I. 2008/238 and continue to have effect in respect of deferred and pensioner members of the scheme constituted by them. Back

(8) The scheme is in Schedule 1 to S.I. 2006/3432; Schedule 1 is the subject of amendments not relevant to this Order. Back

(9) The scheme is in Schedule 1 to S.I. 2007/1072 (W.110); Schedule 1 is the subject of amendments not relevant to this Order. Back

(10) S.I. 2010/990, to which there are amendments not relevant to this Order. Back

(11) The scheme rules are in Schedule 1 to S.I. 2012/687. Back