17th November 2014STATUTORY INSTRUMENTS
The Marriage (Same Sex Couples) Act 2013 and Marriage and
Civil Partnership (Scotland) Act 2014 (Consequential
Provisions) Order 2014
17th November 2014Laid Before Parliament 18th November 2014
Coming into force in accordance with article 1(2) and (3)
This Order is made in exercise of the powers conferred by section 17(2) and (3) of the Marriage (Same Sex Couples) Act 2013 (1), by section 259(1) and (4) of the Civil Partnership Act 2004 (2) and by sections 104, 112(1) and 113(2) to (5) of the Scotland Act 1998 (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 and Schedule 4 to this Order.
The Secretary of State, in exercise of those powers, makes the following Order:
Citation, commencement, interpretation and extent
1.—(1) This Order may be cited as the Marriage (Same Sex Couples) Act 2013 and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Provisions) Order 2014.
(2) Subject to paragraph (3), this Order comes into force on 10th December 2014.
(3) The provisions mentioned in paragraphs (6) and (7) so far as they extend to Scotland, come into force on 16th December 2014.
(4) In this Order—
(a) “the 2013 Act” means the Marriage (Same Sex Couples) Act 2013, and
(b) “the 2014 Act” means the Marriage and Civil Partnership (Scotland) Act 2014 (4).
(5) Subject to paragraphs (6) and (7), this Order extends to England and Wales only.
(6) The following provisions extend also to Scotland—
(a) paragraphs 2, 4 and 5 of Schedule 1 and article 2 so far as it applies to those paragraphs, and
(b) this article, article 5 and Schedule 4.
(7) Article 3 and Schedule 2 extend to Scotland only.
2. Schedule 1 (which amends enactments etc. in consequence of the 2013 Act, the 2014 Act and the Civil Partnership Act 2004) has effect.
Amendments to enactments etc.: Scotland
3. Schedule 2 (which amends enactments etc. in consequence of the 2014 Act and the Civil Partnership Act 2004) has effect.
Amendments to enactments etc. concerning the Church of England
4. Schedule 3 (which amends enactments etc. concerning the Church of England in consequence of the 2013 Act) has effect.
Consequential provisions relating to certified copies of entries of consular marriages
5. Schedule 4 (which makes consequential provision concerning legislation on consular marriages) has effect.
Nick Boles
Minister of State for Skills and Equalities
Department for Business Innovation & Skills
17th November 2014
PART 2
Enactments etc.: public service pension schemes
Public service pension schemes: general
11.—(1) The public service pension schemes referred to in the second column of the table at sub-paragraph (2) are amended in accordance with columns 3 and 4 of that table.
(2) The table referred to in sub-paragraph (1) is as set out below.
| Entry | Pension Scheme | First set of amendments | Second set of amendments |
|---|---|---|---|
| 1 | The Firefighters’ Pension Scheme set out in Schedule 2 to the Firemen’s Pension Scheme Order 1992 as it has effect in England (22). | In paragraph 1 of Part 3 of Schedule 1 (marriage of a same sex couple), for “In” at the beginning of sub-paragraph (1) substitute “Subject to paragraph 3, in”. | After paragraph 2 (living together as a same sex couple) insert the provision made by sub-paragraph (3) with the number “1” substituted by the number “3” and with the words “these Regulations” substituted by “this Scheme”. |
| 2 | The Firefighters’ Pension (Wales) Scheme set out in Schedule 2 to the Firemen’s Pension Scheme Order 1992 as it has effect in Wales (23). | In paragraph 1 of Part 3 of Schedule 1 (marriage of a same sex couple), for “In” at the beginning of sub-paragraph (1) substitute “Subject to paragraph 3, in”. | After paragraph 2 (living together as a same sex couple) insert the provision made by sub-paragraph (3) with the number “1” substituted by the number “3” and with the words “these Regulations” substituted by “this Scheme”. |
| 3 | The Local Government Pension Scheme Regulations 1997 (24). | In regulation 42B (marriage of a same sex couple), for “In” at the beginning of paragraph (1) substitute “Subject to regulation 42D, in”. |
After regulation 42C (living together as a same sex couple) insert the provision made by sub-paragraph (3) with the number “1” substituted by the number “42D”. |
| 4 | The Teachers’ Pension Regulations 2010 (25). | In regulation 2A (marriage of a same sex couple), for “In” at the beginning of paragraph (1) substitute “Subject to regulation 2C, in”. | After regulation 2B (living together as a same sex couple) insert the provision made by sub-paragraph (4) with the number “1” substituted by the number “2C”. |
| 5 | The Royal Mail Statutory Pension Scheme (26). | In rule 2A (marriage of a same sex couple), for “In” at the beginning of paragraph (1) substitute “Subject to Rule 2C, in”. |
After Rule 2B (living together as a same sex couple) insert the provision made by sub-paragraph (4) with the number “1” substituted by the number “2C” and with the words “these Regulations” in both places they occur substituted by “this Scheme”. |
(3) The provision referred to in the fourth column of the table at sub-paragraph (2) in relation to entries 1 to 3 of the table is—
“Continuation of marriage where Scheme member acquires new legal gender
1. Where—
(a) a deceased Scheme member was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004 (27), and
(b) at the time of the member’s death, she was married to a woman and that marriage subsisted before the time when the certificate was issued, the Scheme member’s widow is to be treated for the purposes of these Regulations as if the certificate had not been issued.”.
(4) The provision referred to in the fourth column of the table at sub-paragraph (2) in relation to entries 4 and 5 of the table is—
“Continuation of marriage where Scheme member acquires new legal gender
1.—(1) Where—
(a) a deceased Scheme member was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and
(b) at the time of the member’s death, she was married to a woman and that marriage subsisted before the time when the certificate was issued, the Scheme member’s widow is to be treated for the purpose of these Regulations as if the certificate had not been issued.
(2) Where—
(a) a deceased Scheme member was a man by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and
(b) at the time of the member’s death, he was married to a man and that marriage subsisted before the time when the certificate was issued, the Scheme member’s widower is to be treated for the purpose of these Regulations as if the certificate had not been issued.”.
EXPLANATORY NOTE
(This note is not part of the Order)
This Order makes amendments to subordinate legislation as a consequence of the coming into force of the Marriage Same Sex Couples) Act 2013 (c. 30) (“the 2013 Act”) in England and Wales and as a consequence of the coming into force of the Marriage and Civil Partnership (Scotland) Act 2014 (asp 5) (“the 2014 Act”) in relation to Scotland.
Some provisions of the 2013 Act are already in force and two orders making consequential amendments as a result of the 2013 Act (as well as other provision) have already been made. These orders are the Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014 (S.I. 2014/107) and the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014 (S.I. 2014/560). Other statutory instruments which were required to implement the 2013 Act have also been made.
The provisions of the 2013 Act now being brought into force by a separate commencement order mainly concern the conversion of civil partnerships into marriage (“conversions”) and allow, subject to certain conditions, a couple to remain married if one or both of them changes their legal gender.
As part of the implementation of these provisions of the 2013 Act, 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 has been laid in each House of Parliament. This makes consequential amendments to Acts of Parliament mainly consequential on the remaining provisions of the 2013 Act coming into force, as well as making other provision.
This Order makes consequential amendments to enactments which are not Acts of Parliament.
It also makes amendments in Schedule 2 to various public service pension schemes which form part of the law of Scotland (but which are not devolved to the Scottish Government) as a consequence of the coming into force of the 2014 Act under the power contained in section 104 of the Scotland Act 1998 (c. 46). These amendments replicate amendments made in relation to England and Wales both in Schedule 1 to this Order and in S.I.s 2014/107 and 2014/560.
This Order additionally makes amendments to legislation concerning pensions payable by the Church of England as a consequence of the 2013 Act coming into force and consequential amendments as a result of changes to consular marriage legislation.
Article 2 and Schedule 1 make consequential amendments to subordinate legislation having effect in England and Wales, and in the case of paragraphs 2, 4, and 5 of Schedule 1, in Scotland.
Paragraph 1 of Schedule 1 makes an amendment to the Marriage (Authorised Persons) Regulations 1952 (S.I. 1952/1869) as a consequence of the coming into force of section 6 of the 2013 Act which makes provision about marriages of same sex couples in military chapels.
Paragraph 2 of Schedule 1 makes amendments to the Service Departments Registers Order 1959 (S.I. 1959/406) to reflect the fact that a marriage can now result from a conversion or change of a civil partnership into a marriage and also makes an amendment to this Order which follows on from provision made by the Overseas Marriages (Armed Forces) Order 2014 (S.I. 2014/1108).
Paragraphs 3, 7 and 9 of Schedule 1 make amendments to the Registration of Births, Deaths and Marriages Regulations 1968 (S.I. 1968/2049), the Registration of Births and Deaths Regulations 1987 (S.I. 1987/2088) and the Special Guardianship (Wales) Regulations 2005 (S.I. 2005/1513) as a consequence of it now being possible to convert a civil partnership into a marriage.
Paragraph 4 of Schedule 1 amends the Social Security (Credits) Regulations 1975 (S.I. 1975/556) to reflect the fact that a same sex couple may now live together as if they were a married couple.
Paragraphs 5 and 8 amend the Social Security (Widow’s Benefit, Retirement Pensions and Other Benefits) (Transitional) Regulations 1979 (S.I. 1979/643) and the Standards Committees (Wales) Regulations 2001 (S.I. 2001/2283) respectively to insert previously omitted references to civil partners.
Paragraph 6 amends the Registration of Marriages Regulations 1986 (S.I. 1986/1442) and paragraph 10 amends the Civil Partnership (Registration Provisions) Regulations 2005 (S.I. 2005/3176). Prior to marriage for same sex couples becoming lawful, where a couple married each other after having been in a civil partnership with each other, this would have revealed that one of the couple must have changed legal gender. Similarly if a couple were previously married before marriage of same sex couples became lawful and then entered a civil partnership, this would have revealed one of the couple had changed legal gender. SI 1986/1442 and S.I. 2005/3176 made provision to ensure that couples marrying and entering a civil partnership were not inadvertently revealed as a couple where one member had acquired a new legal gender. Now that marriage for same sex couples is lawful, these two regulations have been updated to ensure the same protections apply.
Part 2 of Schedule 1 amends various public service pension schemes enshrined in legislation to make provision for the survivor benefits available to the spouse of a member of the scheme in a case where the member has acquired a new legal gender.
Article 3 and Schedule 2 to the Order make amendments to public service pension schemes insofar as the legislation containing these is part of the law of Scotland. These amendments are made in consequence of provision made by the 2014 Act and replicate amendments made in relation to England and Wales.
Article 4 and Schedule 3 to the Order make amendments to various Measures of the Church of England and one set of regulations applying to the Church of England where these Measures and regulations concern pension schemes provided by the Church. None of the amendments affect the Church’s stance as regards the ability of a member of the clergy to enter into a marriage with someone of the same sex.
Article 5 and Schedule 4 to the Order make provision consequential upon the repeal of the Foreign Marriage Act 1892 (c.23) and provide that the Registrars General for England and Wales and Scotland will issue certified copies of consular marriages entries registered under previous legislation as well as certified copies of certificates of marriages under foreign law which were deposited with them under the previous legislation. The previous legislation still applies in Northern Ireland.
Paragraph 3 of Schedule 4 ensures that the Registrar General for England and Wales will continue to pass on to the Registrar General for Northern Ireland any consular marriage certificates which show that the couple elected Northern Ireland as the relevant part of the United Kingdom for the purposes of these marriages under the previous legislation (which still applies in relation to Northern Ireland).
A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.
(1) 2013 c. 30. Back
(2) 2004 c. 33. Back
(3) 1998 c. 46. Back
(4) 2014 asp 5. Back
(22) The Scheme is in Schedule 2 to S.I. 1992/129. Paragraphs 1 and 2 were inserted into Part 3 of Schedule 1 to the Scheme by S.I. 2014/560. There are other amendments to Schedule 1 to the Scheme 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
(23) The Scheme is in Schedule 2 to S.I. 1992/129. Paragraphs 1 and 2 were inserted into Part 3 of Schedule 1 to the Scheme by S.I. 2014/560. There are other amendments to Schedule 1 to the Scheme 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
(24) 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. Regulations 42B and 42C were inserted by S.I. 2014/560. Back
(25) S.I. 2010/990. Regulations 2A and 2B were inserted by S.I. 2014/560. Back
(26) The scheme rules are in Schedule 1 to S.I. 2012/687. Rules 2A and 2B were inserted by S.I. 2014/560. Back
(27) 2004 c. 7. Back