LGBT+ History Month and Scottish Family Law

LGBT+ History Month and Scottish Family Law

Shona Young Blue L
This month as we celebrate LGBT+ History Month, Shona Young, Senior Associate of our Family Law team, shares some of the changes to family law in Scotland over the past 20 years.

Since 2005, same-sex couples have been able to enter into Civil Partnerships. Civil Partnerships were introduced specifically for same-sex couples who wanted to formalise their relationship, and from a legal perspective conferred the same rights and responsibilities as marriage.  However, despite the “legal” equality, married couples were seen by many in the gay rights lobby to enjoy a higher status than those with a civil partnership, and what followed, some ten years later, was a legalisation of same-sex marriages, with the first marriages taking place on 31 December 2014 (what a way to bring in the New Year!), and those who were already in civil partnership were able to convert their civil partnership to a marriage.

Interestingly, a Supreme Court ruling in 2018 found that heterosexual couples can also enter into a civil partnership. The reality in our experience is that the vast majority of couples, same-sex or heterosexual, who opt to formalise their relationship choose to go down the route of marriage (which for many now is a personal choice, rather than one driven by religious beliefs).

Since September 2009, same-sex couples have been able to adopt children in Scotland. Gay parents have also been able to adopt stepchildren since 2009. At the same time, the Looked After Children (Scotland) Regulations 2009 came into effect, which allows same-sex couples to be considered as foster parents.

Whilst not strictly a family law matter, in June 2018, the Scottish Parliament passed the Historical Sexual Offences (Pardons and Disregards) Act 2018, which issued a formal pardon to men, living and dead, convicted of having consensual sex with other men. The pardons were symbolic, as it had already been decriminalised, but it did allow a man with a historical conviction to apply for a formal disregard, the effect being that it would then not be included in disclosure checks.

Altruistic surrogacy is legal in the United Kingdom, including Scotland. Gay fathers can conceive through surrogacy in the UK and they can apply to the court to then be named on their child’s birth certificate as the legal parents/guardians of the child.

Lesbians have been able to access IVF since 2009 and following changes implemented by the Human Fertilisation and Embryology Act 2008, lesbian couples who conceived with donated sperm could also both be treated as being the parents of their child, so long as various requirements are met.

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