The Marriage and Civil Partnership (Scotland) Act 2014 will come into force on 16 December, 2014 – this means that the first same sex marriages in Scotland can take place from 31st December 2014.
The act demonstrates the commitment of the Scottish government to promoting equal rights.
It is likely that January will see a significant increase in newly married couples and weddings, however the question is, will this change to the law on marriage have any effect on the institution of marriage itself?
Greater Inclusion
The state will continue to recognize three categories of relationship : marriage, civil partnership and cohabitation. However, same sex couples who are currently in a civil-partnership will be able to have their civil partnership converted to marriage – with their marriage date being backdated to the date their civil partnership was registered in Scotland. Civil partners are also free to remain civil partners.
Furthermore, transgender individual who are married are in a civil partnership will no longer have their formally recognized relationship dissolved on the issue of a gender recognition certificate. This has resolved a previously existing consequence of applying for gender recognition which was often unintended.
Greater Consideration
One of the greatly beneficial impacts that implementation of the new legislation will have is that discussion of the institution of marriage will be invigorated, bringing different models of marriage into the spotlight.
Whilst couples always consider the festivities of a wedding, it is less common to think about how they would practically wish their marriage to end, should this become necessary.
A pre-nuptial agreement, where an agreement relating to personal and financial issues on the conclusion of a marriage is reached, may sound unromantic and pessimistic, however it is simply kinder to both parties.
A pre-nuptial agreement allows both parties to decide how they would like to resolve a separation when they are in a loving and trusting time in their relationship. This avoids having to battle it out when emotions are running high and the parties may feel trust has been lost in the relationship.
Pre-nuptial agreements can be general or specific, however both parties should have the opportunity to seek proper legal advice before it is agreed upon and the terms of the agreement must be fair and reasonable in order for the agreement to be upheld by the court.
An agreement can protect any property owned by the parties prior to them entering into the marriage and may regulate whether one party will be liable for contributions from a non-matrimonial funds after the marriage has ended. For example, if one party paid the deposit for the matrimonial home whether they should be reimbursed for this.
Parties may also enter into an agreement after they have entered into the marriage – known as a post-nuptial agreement
Civil partners who choose not to convert to marriage are also able to enter into these types of agreements as well as cohabitants.
Therefore it is likely that the implementation of the right of same sex couples to marry will strengthen the institution of marriage and encourage couples to develop amicable solutions before problems arise. Whilst it may not seem romantic, it can be comforting to know an agreement is in place to ensure the happiness and prosperity of both parties should the relationship deteriorate.
If you are considering a pre or post-nuptial agreement, or for any other family law matter contact us today.
Contact Family Law Edinburgh – Pre-nuptial and post-nuptial agreements in Edinburgh
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