Civil Partnership (Jersey) Law 2012 Amendment: Law drafting instructions

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A decision made on 12 October 2020

Ministerial decision reference: MD-HA-2020-0062

Decision summary title:

Amendment Regulations to the Civil Partnership (Jersey) Law 2012 to make provisions for opposite sex civil partnerships - Instructions for Law Drafting

Decision summary author

Senior Policy Officer,

Strategic Policy, Planning and Performance

Is the decision summary public or exempt?

Public

Report title: Law Drafting Instructions: Amendment Regulations to the Civil Partnership (Jersey) Law 2012 to make provisions for opposite sex civil partnerships

Report author or name of

person giving report

Senior Policy Officer,

Strategic Policy, Planning and Performance

Is the report public or exempt?

Public

Decision and reason for the decision

The Home Affairs Minister authorised officers in the Department for Strategic Policy, Performance and Population to liaise with the Principal Legislative Drafter to request the preparation of draft amendment Regulations.

Law drafting is required to amend the Civil Partnership (Jersey) Law 2012 to make provision for opposite sex civil partnerships.

The requested amendments will introduce provisions that: allow opposite sex couples to enter into civil partnerships, raise the minimum age of entry into a civil partnership to 18, align the procedural elements of civil partnerships with those of marriage and enable a married couple to convert their marriage into a civil partnership.

Resource implications: There are no resource implications arising from this Ministerial Decision.

Action required

Senior Policy Officer, Strategic Policy, Planning and Performance to liaise with the Principal Legislative Drafter to request that Amendment Regulations to the Civil Partnership (Jersey) Law 2012 to make provisions for opposite sex civil partnerships be drafted.

Signature

Position

Len Norman,

Home Affairs Minister

Date signed

Effective date of the decision

Civil Partnership (Jersey) Law 2012 Amendment: Law drafting instructions

Contacts

Ministerial Sponsor: Len Norman

Instructing Officer: Ben Sandeman

Legal Adviser: Frank Le Gros

Structure of report

Section 1 sets out the policy background relating to the required amendments
Section 2 sets out instructions to law draftsman

Section 1: Policy background

Introduction

The Marriage and Civil Status (Jersey) Law 2001 (the 2001 Law”) was amended on 1 July 2018 to allow same-sex couples to get married in Jersey. As a result, both opposite-sex and same-sex couples can get married in Jersey. This is not currently the case for civil partnerships, which are only accessible to same-sex couples as per the Civil Partnership (Jersey) Law 2012.

In August 2014, prior to the changes that allowed for same-sex couples to marry, the Chief Minister undertook an Equal Marriage consultation [1]. Whilst the consultation focused on the proposed introduction of same-sex marriage, it also asked Islanders whether they thought civil partnerships should be available to opposite-sex couples. The responses received favoured opposite sex civil partnerships (“72% of survey respondents stated that civil partnerships should be available to opposite-sex couples, as well as same-sex couples”).

The 2014 consultation was, however, limited in scope therefore at the point at which the States Assembly debated marriage reform in 2015 it was accepted that the civil partnership law should remain unaltered until either:

more was understood about the uptake of civil partnerships post marriage being available to same-sex couples, or
there was a related court ruling. This ruling was received in June 2018 when the UK Supreme Court ruled [2] that it is discriminatory to only allow same-sex couples to enter into a civil partnership.

In October 2018, in response to that ruling, a further consultation [3] was undertaken by the Minister for Home Affairs seeking the views of islanders on the subject of civil partnerships. The consultation set out that concerns relating to discriminatory treatment could be resolved by either by:

repealing the 2012 Law as civil partnerships are arguably not required now that any couple can get married, or
by extending civil partnerships to all couples.

Respondents to the consultation were heavily in favour of making civil partnerships available to all couples [4], and therefore the Home Affairs Minister has determined that Jersey law should be amended, subject to approval from the Assembly, to:

enable opposite-sex couples to enter into a civil partnership in Jersey

increase the age at which a person can enter into a civil partnership to age 18

provide that the procedural arrangements relating to formation of civil partnership should mirror the arrangements relating to the solemnization of marriage as brought forward by the Marriage and Civil Status (Amendment No. 4) (Jersey) Law

enable married opposite-sex couples to convert their existing marriage to a civil partnership broadly mirroring the provisions in the 2001 Law which allow civil partners to convert their civil partnership to marriage.

Furthermore, in response to stakeholder feedback, the Home Affairs Minister has determined that provision should be made for couples who wish for their civil partnership to be solemnized in an approved outdoor location, to be able to provide details of an indoor ‘back-up’ location in their civil partnership notice in the event of increment weather. Matching provision is to being made to the 2001 Law.

The Home Affairs Minister does not intend, in extending civil partnerships to opposite sex couples, to amend the existing restrictions on civil partnership so as to allow family members to enter into civil partnerships with each other.

Structure of the legislation

Civil partnerships were introduced in Jersey in 2012 in order to give same sex couples the same rights and responsibilities as married couples. Civil partnerships were intended to be a legal structure which was equivalent to civil marriage at a point in time when same-sex couples could not get married. They were never intended be an alternative to civil marriage.

Amending the law to provide for opposite sex couples to enter into civil partnerships, essentially means that civil marriage and civil partnerships are the same thing, other than the difference of name. The Minister recognises, however, that for some people this difference is important because it brings different cultural and emotional associations. Some people perceive marriage to be a patriarchal or out-of-date institution, others associate it with religious institutions even though they may recognise that there is a difference between civil and religious marriage.

It is very clear from the 2018 consultation responses that a number of respondents were confused about the legal status of civil partnerships, believing civil partnership to be ‘marriage light’ with less legal rights and responsibilities. Whilst this is the case in many other jurisdictions, it is not the case in Jersey or the British Islands where the rights and responsibilities that flow from both marriage and civil partnership are the same (i.e. civil partnership is ‘marriage equal’)

There is some concern that the pervading belief that civil partnership is ‘marriage light’ could result in people entering into a civil partnership with little or no recognition of the legal implications. From a policy perspective, it is therefore considered desirable to bring forward:

a single marriage and civil partnership law - thus helping to signal that whilst marriage and civil partnership are called different things, they bring the same rights and responsibilities
a single dissolution of marriage and civil partnership law – similarly signifying that the legal processes via which a marriage and a civil partnership end are the same (Note: law drafting instructions relating to dissolution of marriage and civil partnership will be drafted next year)

It is believed that it may be more efficient, in the longer term, to have a single law as opposed to retaining a separate marriage law and a separate civil partnership law. That said, it is recognised that the proposals to bring forward a single marriage and civil partnerships law:

will require a significant amount of reconfiguration of existing laws as, for example, it is not known if the 2001 Law can be amended to provide for civil partnerships, or whether the 2001 Law would need to be repealed and replaced with an entirely new law
will require a significant number of articles from the Civil Partnership (Jersey) Law 2012 (the “2012 Law”) to be repealed, but those articles which relate to dissolution or annulment of a civil partnership would need to be retained at least until the point at which amendments are brought forward to the Matrimonial Causes (Jersey) Law 1949 (or the 1949 Law is repealed and replaced). It is envisaged that amendments to the 1949 Law would provide for matters relating to both divorce and dissolution of a civil partnership.

Furthermore, provision would still need to be made with regards to the registration of other life events (birth, death etc) as per Part 5 of the 2001 Law.

Given that the Minister is minded to make provision for opposite sex civil partnerships in the shortest possible timeframe - particularly given that this work which was scheduled to be progressed earlier in 2020 was delayed due to Covid-19 - these instructions are drafted on the premise that we will maintain a separate marriage law and a separate civil partnership law.

Age of civil partnership

16 year old or 17 year olds can currently get married or enter a civil partnership in Jersey if their parent/s consent to that marriage, however the marriage/CP of minors is odds with the United Nations Convention on the Rights of the Child (UNCRC) which states that a child is a child until they reach the age of 18. Jersey is party to the UNCRC.

In 2016, the UN Committee recommended that UK and all devolved administrations, and Crown Dependencies – which includes Jersey - raise the minimum age of marriage to 18 years. This position is echoed by UNICEF which calls on all governments, not just those in the developing world, to outlaw child marriages. It is argued that developed nations have a special obligation to set standards and outlaw marriage below 18 years of age in order to help protect children, usually young girls, who in some nations are married off at 12 or 13 years of age

The Minister has therefore determined that the age of marriage and age of civil partnership should be increased to 18 years old in Jersey. The draft Marriage and Civil Status (Amendment of Enactments) (Jersey) Regulations 201-[5] (the “draft Marriage Law amendments”) will amendment the 2001 Law and increase the age of marriage to 18 years old. Instructions relating to the increased of age of civil partnership are set out below.

Conversion

The Marriage and Civil Status (Amendment No. 4) (Jersey) Law amended the 2001 Law to provide that civil partners could convert their civil partnership to a marriage. This was to enable same sex civil partners who had previously been unable to marry to convert their civil partnership to a marriage if they so wished.

Under the 2001 law, where a couple convert their civil partnership to a marriage, that marriage is treated as having existed from the date the civil partnership was formed, as opposed to the date the civil partnership was converted to marriage.

The 2001 Law does not:

set out any time restrictions on conversion [6]

restrict conversion to civil partnerships formed before the introduction of same-sex marriage in Jersey [7]

limit conversions to civil partnerships registered in Jersey. Instead it allows for any civil partnership recognised in Jersey (i.e. one which is registered in Jersey or one which is recognised as an overseas relationship) to be converted to marriage in Jersey (as per the law in the UK).

As off the end 2019, there have been 16 conversions of civil partnerships to marriage in Jersey. 15 of which were civil partnerships formed in Jersey, 1 was a civil partnership formed in the UK.

In providing for opposite-sex civil partnerships, the Minister has determined that the law should also provide for married couples to convert their marriage to a civil partnership.

Risks associated with conversion provisions

It is recognised, however, that conversion brings particular challenges and risks. For example:

if a married couple convert their marriage to a civil partnership in Jersey where the rights and responsibilities of the civil partnership are equivalent to a marriage (i.e. it is ‘marriage equal’) and then the couple move to another jurisdiction:

their civil partnership may not be recognised in that jurisdiction because the jurisdiction does not provide for opposite-sex civil partnerships or does not recognise civil partnership by conversion, or
their civil partnership may be recognised in that jurisdiction as a civil partnership in accordance with the legal provisions of that jurisdiction, which may not be ‘marriage equal’ thus leaving the couple at risk if, for example, their relationship breaks down
1. if a non-Jersey civil partnership or a non-Jersey marriage is converted in Jersey:

the couples’ home country or any other country may still regard them as being in the pre-conversion relationship (i.e. do not recognise the conversion as having taken place)
the couple’s home country or any other country may not recognise the couple as being in a legal relationship (i.e. they may see the couple’s original pre-conversion relationship as having been ended but, if that country does not provide for same-sex marriage or for opposite sex civil partnership marriage, they cannot recognise the new relationship)
- the couple’s home country or any other country might treat the marriage or civil partnership formed by conversion in Jersey as a new relationship which may be entitled to some form of recognition, but only from the date on which the conversion happened – as opposed to the date on which the original relationship was entered into
- if the couple subsequently divorce or dissolve their relationship, there may be uncertainty as to whether this divorce or dissolution would be recognised across the world. This could stop them from subsequently re-marrying, or entering a new civil partnership
- if the couple subsequently divorce or dissolve their relationship outside of Jersey, any financial provision may be affected by the fact that the relationship was previously formed by conversion in Jersey
- if the couple’s home country or any other country do not recognise the marriage or civil partnership formed by conversion in Jersey, and that relationship should end in divorce or dissolution, it is possible that there may need to be court proceedings on ending the relationship in more than one country.

These risks already exist in relation to the conversion of civil partnership into marriage but they are potentially compounded because, whilst it may be reasonable to assume that civil partners converting to marriage understand what marriage entails, it is not clear spouses converting to a civil partnership understand that civil partnership may be ‘marriage equal’ in some jurisdictions, or ‘marriage light’ in others.

Furthermore, it needs to be recognised that conversion presents an additional administrative burden upon the Office of the Superintendent Registrar, and on the public administration systems that record matters relating to relationship status, particularly if couples are allowed to convert on a multiple basis (from marriage, to civil partnership and back again)

Consideration has, therefore, been given as to what, if any, restrictions should apply to conversions of marriage to civil partnership and vice versa in order to manage those risks:

Potential restrictions on conversion	Why	Response
Only allow civil partnerships which are known to be ‘marriage equal’ to be converted to marriage	To protect against: risk of couples not understanding the implications of conversion (whether to, or from, civil partnership) acquisition of rights and responsibilities associated with marriage by couples in a ‘marriage light’ civil partnership, as opposed to a ‘marriage equal’ civil partnership	Consideration has been given to only allowing conversion of marriages and civil partnerships formed in Jersey, however, this potentially penalises couples who have moved to Jersey and who had only limited options available to their home country. Therefore whilst any marriage may be converted to a civil partnership in Jersey, it is proposed that the marriage law is amended to provide that an overseas civil partnership which is converted to marriage can only be converted by way of a ceremony (as opposed to by way of an administrative conversion).
Only allow: same-sex civil partners to convert to marriage, and opposite-sex spouses to convert to a civil partnership	To provide for couples who may previously been denied access to either marriage or civil partnership.	Restrictions based on gender create potential challenges where one or both parties to the marriage or civil partnership changes gender.
Only allow for conversions within a given time fame.	To limit administrative impact.	Could potentially disadvantage people who may not be able to covert in Jersey in the given timeframe. However, it is reasonable that, after a period of time, the Assembly may determine that conversion provisions should be removed from the law (which might be driven in part by arrangement in other jurisdictions), so conversion time limits should be introduced, with a power to amend by Regulations. The proposed timeframe is two years.
Only allow each couple to convert once (i.e. they may convert their marriage to a civil partnership, or their civil partnership to a marriage but may not convert back again)	To allow multiple conversions could be perceived to demean the institution of marriage and civil partnerships, plus only allowing one conversion limits administrative impact.	It is deemed appropriate to limit each couple to one conversion.

Recognition of overseas civil partnerships

The 2012 Law sets out that a civil partnership is a relationship registered in Jersey in accordance with the law or is a registered overseas relationship. Schedule 1 of the 2012 Law then defines what is meant by an overseas relationship. This includes:
1. a specified relationship, or
2. a relationship that meets conditions specified in law

which was registered (either before or after the passing of the 2001 Law) with a responsible authority in a country or territory outside Jersey by two people who, at the time of registration were of same sex and neither of whom was already a civil partner or lawfully married.

Specified relationship

The law provides a list of those specified relationships (Schedule 1, Article 2), with the power to amend that list by Regulation.

The current list of specified relationships is out of date and needs to be amended to remove those relationships which are marriages, given that a same-sex marriage formed in another jurisdiction is now recognised as a marriage in Jersey.

The current list of specified relationships, which is taken from the list set out in law in England & Wales and Scotland, is theoretically intended to include relationships which are equivalent to a civil partnership in Jersey (and which are, therefore “marriage equal”) but it is not known if the list is up-to-date including whether:
1. the relationships listed still exist or whether they have been superseded by legislation changes in the relevant jurisdiction
2. the extent to which the relationships are, or are not, ‘marriage equal’
3. if other jurisdictions should be included on the list because, since its development they have introduced civil partnerships (or equivalent).

It is therefore proposed that the list of specified relationships should be able to be amended by Order.

Alternate locations

In 2018, the 2001 Law was amended in order to provide an Order making power by which the Minister could establish a scheme for the approval of locations for the solemnization of marriage (an “approved location”). Article 13 of the 2018 Order sets out the kinds of locations that could be approved for the solemnization of marriage, including open air locations.

These provisions were made in order to allow couples to get married in the open air in Jersey including in parks, beaches, gardens, headlands etc.

At the time the amendments were brought forward it was agreed that provision should not be made to allow couples to give notice to marry at two locations (i.e. an open-air location and a non-open-air location in case of inclement weather). This policy has subsequently been reviewed and the draft Marriage law amendments will amend the provisions of the 2001 Law and the 2018 Order in order to provide couples, who wish to marry in the open air, the ability to have named ‘back up’ location in the event the open-air location cannot practicably be used due to inclement weather.

The Minister has determined that;

a couple who wish to solemnize their civil partnership in an outdoor location should, as per couples solemnizing a marriage, be able to have a named ‘back up’ location (known as the alternate location)
both the outdoor location and the back-up location must be locations which are locations approved for any marriage under the provisions of the 2001 Law.

Instructions relating to approved locations and alternate locations are set out below.

SECTION 2: Law drafting instructions [8]

Civil partnerships / formation of civil partnership

Articles 2 and 3 of the 2012 law set out what a civil partnership is and matters relating to its formation. The provisions of these Articles need to be amended.

Article 2 (1) provides that a civil partnership is a relationship between 2 people which is formed in Jersey in accordance with the law, or which the people are treated as having formed by virtue of having registered an overseas relationship;

Reference to the sex of those people in 2 (1) is not required, as people of any sex can form a civil partnership
A civil partnership is not formed in Jersey via registration (as currently set out in the 2012 Law). A civil partnership is to be formed in Jersey on the signing of a civil partnership schedule, or a conversion declaration form, in the presence of a civil partnership celebrant. A civil partnership is formed in Jersey and then the fact that it has been formed is registered by a Registrar
The reference to ‘having registered an overseas relationship’ has previously caused some confusion as it has been interpreted as requirement that the overseas relationship is registered in Jersey. This is not correct and may benefit from clarification. The overseas relationship needs to have been registered in the jurisdiction in which it was formed, not in Jersey.

The provisions of Articles 2 (2) to (5) continue to be required and do not need amending.

Amending Article 2 to remove the requirement for the two parties to be of the same sex necessitates changes to the following provisions of the 2012 law:

Article 4 (1) (a): Two people of the same sex may form a civil partnership with each other

Article 36 (1) (d) of the 2012 Law states that a civil partnership can be annulled if an interim gender recognition certificate is issued to either civil partner. This is because, as it currently stands only same sex couples can be in a civil partnership and, if one civil partner changes gender they will fall foul of Article 2 (1). At the point at which civil partnerships are no longer restricted to same sex couples, the need for an interim gender recognition certificate is no longer required because like similar amends made as part of the Marriage and Civil Status (Amendment No.4) Jersey Law 2018 a full gender recognition certificate will now be issued.

The same amend needs to be made in Article 36 (2) as a full gender recognition certificate will be issued instead of an interim gender recognition certificate.

Schedule 1 Article 1(1) (b) (i) states that for an overseas relationship to be recognised as a civil partnership the two partners must be of the same sex at the time the civil partnership is registered, this should be amended.

Schedule 1 Article 4 of the 2012 Law is also at odds with the Minister’s policy position. The entire article is concerned with ensuring civil partners are of the same sex and can be removed, as it is no longer relevant.

Article 3 needs to be amended to provide that a civil partnership:

will be solemnized by a civil partnership celebrant as opposed to a civil partnership registrar. A civil partnership celebrant being the same person who is a civil marriage celebrant under the 2001 Law (see Persons authorized to solemnize civil partnerships in Jersey below)
two people are be to regarded as having formed a civil partnership with each other if they sign:

a civil partnership schedule (references to the ‘civil partnership document’ - as should be changed to a ‘civil partnership schedule’ to reflect terminology of 2001 Law. This applies throughout the 2012 law), or
a civil partnership conversion declaration (see Civil partnership by conversion below)

The law draftsman may determine that Article 3 needs to be amended to provide for the formation of a CP by the signing of schedule and by conversion, OR that formation of a CP by conversion needs to be provided for in a different article as per the 2001 Law. Either way, the title of Article 3 should be amended to reference formation by registration is incorrect.

Art 3 (2) needs to be amended to provide that witnesses are required where the civil partnership is formed by the signing of a civil partnership schedule, but witnesses are not required if the civil partnership is formed by conversion. (See Solemnization of civil partnership and Civil partnership by conversion below)

Art 3 (3) should be amended to provide that after the signing of:
1. a civil partnership schedule - the fact that the two people have formed a civil partnership should be recorded in the civil partnership register
2. a civil partnership conversion declaration - the fact that the two people have formed a civil partnership should be recorded in the civil partnership conversion register.

The section below on Solemnization of civil partnership provides updated detail about use of religious service in civil partnerships (whilst the ceremony cannot include religious ritual, symbols, prayers or worship, it may include hymns, chants, bible readings etc). Art 3 (5) is therefore no longer accurate and, in any event, may be deemed superfluous.

Art 3 (6) requires amendment / is not required as, as per the instructions below, a civil partnership schedule shall be in such form as the SR decides and must contain such particulars as may be prescribed.

Persons authorized to solemnize civil partnerships in Jersey

Article 3 of the 2012 law currently provides that a civil partnership is formed in the presence of a civil partnership registrar. A civil partnership registrar is defined in Article 1 of the 2012 law as meaning the Superintendent Registrar, the Deputy Superintendent Registrar or a delegate. This is out of step with the provisions of the 2001 law which provides for authorized civil celebrants, who are celebrants contracted by the couple as opposed to officials appointed / engaged by the Superintendent Registrar.

The 2012 Law needs to be updated to allow authorized civil celebrants to solemnize civil partnerships as well as marriage. These provisions need to mirror the provisions made under Article 6 of the 2001 Law subject to following changes:

all references to marriage should read civil partnership
the SR, Deputy SR, or an authorized civil celebrant may solemnize a civil partnership. A clergyman and an authorized religious official cannot solemnize a civil partnership (Art 6 (1) (b) and (d))
an authorized civil celebrant should have the same meaning as under Article 6 (3) of the 2001 Law
The SR, Deputy SR and an authorized civil celebrant should collectively be referred to as “civil partnership celebrants” in the 2012 Law. A “civil partnership celebrant” has the same meaning as a “civil marriage celebrant” under the 2001 law. Any person who is a “civil partnership celebrant” is a “civil marriage celebrant” and vice versa. As set out above, the Law draftsman is asked to consider if the term “civil ceremony celebrant” should be used in both the 2012 Law and 2001 Law. (Note; in the 2001 law the term ‘marriage celebrant’ includes ‘civil marriage celebrants’ and religious officials)
Article 6 (3) sets of the 2001 law sets out that the Minister shall prescribe a scheme for authorisation of people as authorised civil celebrants. As it is intended that a civil partnership may be solemnized by an authorized civil celebrant who is so authorised under scheme prescribed under Article 6 (3) of the 2001 Law, it is not clear that there is a requirement to provide a separate authorisation scheme under the 2012 Law. If law draftsman advise that there is no necessity to provide separately in the 2012 for the authorisation of civil celebrants in the 2012 law, this may necessitate:

amendments to Article 6 of the 2001 law to ensure that the Law and the Order recognise that authorised civil celebrants solemnize both marriage and civil partnership (for example, Art 6 (3) (d) (ii) would need to referenced the circumstances in which a marriage or civil partnership may be solemnized by an authorised civil celebrant), OR
provisions in the 2012 law to provide for celebrant authorised under the 2001 Law to solemnize civil partnerships (for example, an authorised civil celebrant cannot solemnize a civil partnership before taking an oath before the Royal Court.

It is recognised that more detailed instructions may need to be drafted if the law draftsman advises that the 2012 law does need to make separate provision for authorisation of civil celebrants.

The provisions set out above are instead of the provisions of Article 16 of the 2012 law - Delegates of the Superintendent Registrar. The Minister will no longer appoint Delegates.

Eligibility and age of civil partnership

Provisions relating to eligibility and age of civil partnership are set out in Article 4 of the 2012 law. Article 4 needs to be amended to provide for opposite-sex civil partnership and changes to age of civil partnership.

Two people of the same sex may form a civil partnership with each other therefore, as set out above, Article 4 (1) (a) is not required.

Article 4 (1) (b) states that two people shall not be eligible to form a civil partnership with each other if either of them is already in a lawful civil partnership or lawfully married. This needs to be amended to provide that they are not eligible to form a civil partnership if they are lawfully married, unless they are lawfully married to each other and are converting their marriage into a civil partnership under the provisions to be made under the amended 2012 law.

Instructions: Age of civil partnership including transitional arrangements

The age of civil partnership is to be increased. No person will be eligible to form a civil partnership if either party to the civil partnership is under 18 years of age, subject to the transitional arrangements below.

Article 4 (1) (c) currently provides that a person may not form a civil partnership if either party is under 16 years of age. This needs to be amended to provide that no-one aged 18 or below may form a civil partnership, unless before the date that these amendments come into force the parties to the intended civil partnership:

gave notice of their intended civil partnership or
notified the SR of a change of date for their intended civil partnership in accordance with the change of date provisions set out below

even if that resulted in the day that the civil partnership is solemnized being after the day on which these amendments come into force.

The provisions related to age of civil partnership and the associated transitional arrangements set out above mirror the amendments to 2001 law that are being brought forward by Articles 3 (6) and (7) of the draft Marriage Law amendments.

The provisions set out in Article 5 of the 2012 Law are not required as, once the age of civil partnership is increased to 18-year-old, no one can consent to a proposed civil partnership in Jersey where one of the civil partners would be under 18.

Similarly, the provisions of Article 6 of the 2012 Law will not be required as no-one can forbid the issuing of a licence or certificate that relates to the civil partnership of a person who is under 18 years of age.

Schedule 3 of the 2012 Law are similarly not required for the same reason.

The provisions of Article 8 of the 2012 Law will also need to be amended to provide for matters relating to caveats. See section on Caveats against issue of schedule / certificate of no impediment below.

Schedule 1, Article 5 of the 2012 Law should be amended to provide that if a civil partnership is formed overseas by a person who was, at the time domiciled in Jersey, the civil partnership will not be recognized if either party was under 18 years old at the time the civil partnership was formed. The title of Schedule 5 also needs amending to refer to people domiciled in Jersey as opposed to in a British Island.

The provisions currently set out in Article 4 (1) (d) are still required. Two people shall not be eligible to form a civil partnership with each other if either of them is incapable of understanding the nature of a civil partnership or of validly consenting to its formation.

The provisions currently set out in Article 4 Article 4 (1) (e) are still required. Two people shall not be eligible to form a civil partnership with each other if they are related in a prohibited degree

Article 4 (2) sets out that the prohibited degrees of relationship are set out in Schedule 2. This does not need to be amended unless the law draftsman should determine that instead of providing for prohibited relationships separately in the civil partnership law, prohibited degrees of relationship should be defined as per the provision of the 2001 Law.

If it is determined that prohibited degrees of relationship should be separately set out in Schedule 2, as opposed to defined as being as per the provisions of the 2001 Law, the following changes need to be made:

Article 1 Schedule 2 of the 2012 Law should be amended to include adoptive grandchild and former adoptive grandchild (as per Schedule 1 of the 2001 Law)

Article 3 Schedule 2 of the 2012 Law should be amended to include:

adoptive child of former spouse or civil partner, in addition to child of former spouse or civil partner
adoptive grandchild child of former spouse or civil partner, in addition to grandchild of former spouse or civil partner

Article 3 and Article 5 of Schedule 2 of the 2012 Law needs amending to remove the reference to both parties having reached the age of 21. It is not known from a policy perspective why this is required.

Child of the family should be defined as per the 2001 law.

Article 4 needs to provide that a civil partnership shall be void if, at the time it was solemnized:

either party was already lawfully married or was in a lawful civil partnership with a person other than the party to intended civil partnership (except for where they are legally married to each other and converting that marriage to a civil partnership)
either party was below the age of 18 (unless the civil partnership was solemnized before the amendments to the 2012 come into force, in which case it will be void if below the age of 16 years old)
the parties were related in a prohibited degree.

Consent where proposed civil partner is under 18 / forbidding of issue of licence or certificate

As set out above the provision of Articles 5 and 6 of the 2012 Law are no longer required as a person cannot enter a civil partnership if they are below the age of 18 years old.

Amendment arrangements relating to giving of notice / solemnization / registration of a civil partnership

It is intended that the amended 2012 Law should mirror, as closely as possible, the provisions of the 2001 Law with regard to matters relating to giving of notice / solemnization / registration of a civil partnership. As a result, Article 7 to 15 of the 2012 require very significant amendment / substitution.

Pre-civil partnership procedural requirements

Article 7 to 12 of the 2012 law provides for pre-civil partnership procedural matters / requirements. It has been determined that these arrangements / requirements should mirror as closely as possible those for getting married in Jersey. The mirroring of procedural arrangements will:
1. support the effective functioning of the Office of the Superintendent Registrar as staff will not have to deal with two entirely different processes, which in turn will benefit customer service
2. ensure that the safeguards against sham marriage built into the 2001 Law will be replicated in arrangements relating to civil partnerships (for example, use of signature verifier form to ensure that the signatures of the persons signing the schedule are the same as the signatures of the persons who attend the Office of the Superintendent Registrar)

As such the Law draftsman is asked to amend the 2012 law to replicate the provisions of the following articles of the 2001 Law subject to the changes detailed below:
1. Article 8: Application for notice
2. Article 9: Consideration of application of notice
3. Article 10: Giving notice and making freedom to marry declaration
4. Article 11: Publication of notice and entry into intended marriage book.

All references to marriage in Articles 8 – 11 of the 2001 law should read civil partnership except in relation to mirroring provision of Article 8 (2) (iii) of the 2001 Law which needs to provide for evidence of any previous civil partnership or marriage and evidence that it has ended.

References to marriage schedule /certificate of no impediment to marriage should read CP schedule /certificate of no impediment to CP.

Reference to ‘marry’ should read ‘form the civil partnership’ (for example, freedom to form a civil partnership declaration as opposed to freedom to marry declaration).

All reference to Article 24 of the 2001 Law refer to the provision to be made for civil in partners in special circumstances (see below).

Article 8 (2) of the 2001 Law sets out the application for notice will include such information as may be prescribed. The corresponding Order – as amended by the Marriage Law amendments sets out that the prescribed information includes the details of the proposed approved location of the marriage and, if that location is an open-air location, a proposed alternate location may also be included. Replication of these provisions in the amended 2012 Law allow for ‘alternate locations’ as references in the Section 1 above. NOTE: an Order will also need to be brought forward under the amended 2012 Law in order to prescribe matters relating to the application for notice of intended civil partnership.

The provision that mirrors Article 10 (8) of the 2001 Law needs to include “entry of notices of intended civil partnership book” after ‘notice of intended civil partnership form’. A matching amendment is being made to the 2001 via the draft Marriage Law amendments- .

The heading of the article that mirrors Article 11 of the 2001 law should read: Publication of notice of intended civil partnership, as opposed to Publication of notice of intended civil partnership and entry in notices of intended civil partnership book. A matching amendment is being made to the 2001 via the draft Marriage Law amendments

Article 10 of the 2012 law provides for the period of validity of a licence. Article 10 is not required as matters relating to the time period between giving of notice and issue of schedule, plus period of validity of the civil partnership schedule will be addressed in the mirroring of the provisions of Articles 8 – 11 of the 2001 Law as set out above.

Caveats against issue of schedule / certificate of no impediment

Article 8 of the 2012 law provides for caveats against issue of a licence or certificate. These provisions need to be amended to:
1. reference a civil partnership schedule or certificate of no impediment, as distinct from a licence or certificate
2. reflect the changes to the age of civil partnership
3. match the provisions of Article 12 of the 2001 Law, including changes to the law that are being made via the draft Marriage Law amendments

In Article 8 (4) of the 2012 Law should reference referral to Inferior Number of the Royal Court, as opposed to just the Royal Court (i.e. as per 12 (4) of the 2001 law). Similarly, all other references to Court, should read Royal Court.

Article 8 (6) of the 2012 Law provides for caveats issued in relation to marriage/civil partnership where one or both of the parties are a minor. Art 8 (6) needs to be amended so that where a caveat is entered on the grounds of age, the Superintendent Registrar can issue a schedule/certificate of no impediment without having received a declaration from the Inferior Number of the Royal Court providing the Superintendent Registrar is satisfied that the party to the marriage is of full age. However, where the caveat relates to a party being the child of the family in relation to the other, the Superintendent Registrar shall not issue the schedule/certificate of no impediment without having received a declaration from the Inferior Number of the Royal Court.

Article 8 (7) of the 2012 Law also needs to be amended. It only needs to provide for a person applying to the Court for a declaration relating to be a child of the family, not a declaration relating to full age.

The rational for the amendments is that at the point at which a 16 or 17 year old cannot enter into a civil partnership in Jersey, any matters of judgement about whether 16 or 17 year old’s should be permitted to marry fall away (i.e. the Court is not required to make any judgement as it is a simple matter of fact as to where the parties to the marriage are aged 18 or over and able to legally enter into a civil partnership). However, it remains a more complex matter, and one which falls to the judgement of the Court, if it is believed that at some point a party to the civil partnership was a child of the family of the other party to the civil partnership.

The changes to Article 8 (6) and (7) reflect the changes to Article 12 of the 2001 Law as set out in the draft Marriage Law amendments.

Civil partnership in Jersey by non-Jersey resident: certificate of freedom to form a civil partnership issued by other authority

Article 11 of the 2012 Law provides for civil partnership in Jersey between British subjects where one is Jersey resident and the other is resident in the British Isles. It reflects provisions previously made in the 2001 Law but was removed from the law at the point at which it was amended in 2019. It was removed on the basis that a) the provision had never been used b) there were significant concerns about marriage in Jersey on the basis of a marriage license issued elsewhere being recognised as equivalent to a Jersey marriage license.

Article 11 of the 2012 law should therefore be removed and alternative provisions should be made for non-Jersey residents to form a civil partnership in Jersey. These provisions should mirror those of Article 14 for the 2001 Law subject to the changes set out below.

All reference to marriage in Article 14 of the 2001 Law should read civil partnership except in relation to the provisions replicating Article 14 (3) of the 2001 Law; the certificate of freedom to form a civil partnerships should provide official confirmation of any marriage or civil partnership the person has entered into.

Reference to ‘marry’ should read ‘form the civil partnership’ (for example, certificate of freedom to form a civil partnership as opposed to certificate of freedom to marry)

The provisions of Article 14 (4) (a) to (c) of the 2001 Law should be substituted with provisions that mirror the new Article 14 (4) (a) to (c) per the draft Marriage Law amendments – except that reference should be made to civil partnership as opposed to marriage. The purpose of these amendments to create consistency of terms. This would mean that:

reference to ‘location of the intended marriage’ should read ‘approved location where the civil partnership is intended to be solemnized
references to ‘date of intended marriage’ should read “intended date for solemnization of the civil partnership”

As per Article 14 (4A) of the draft Marriage Law amendments, where the approved location set out on certificate is an open-air location, the certificate may also include details of an alternative approved location.

As per Article 14 (6) as per the draft Marriage Law amendments-, Article 14 (6) needs to be amended to clarify that the SR may refuse to issue a civil partnership schedule if the person fails to deliver a valid certificate to the SR unless the SR is satisfied that the failure is beyond the control of the person in respect of whom the requirement applies, or the civil partnership authority referred to in the articles does not issue such certificates. This clarification is to deal with fact that it is known that some authorities do not issue such certificates so there is little point in the SR holding people to that requirement.

Issue of civil partnership schedule

Article 9 of the 2012 Law provides for the issues of the civil partnership licence. The provisions of Article 9 need to be amended so as to mirror the provisions of Article 15 of the 2001 Law subject to the changes set out below.

All reference to marriage should read civil partnership.

Reference to ‘marry’ should read ‘form the civil partnership’ (for example, freedom to form a civil partnership declaration as opposed to freedom to marry declaration)

Reference to Article 24 of the 2001 Law needs to reflect the Article number for Civil Partnership; Special circumstances.

Reference to Article 14 of the 2001 Law should reference the Article making provisions for Civil partnership in Jersey by non-Jersey resident: certificate of freedom to form a civil partnership issued by other authority

As set out above, the Order which prescribes the information to be provided in an application of notice of intended civil partnership form will set out that couples may include details of an alternate location in that application form if the intended location for solemnization of a civil partnership is an open air location. Therefore, before the civil partnership schedule is issued, both parties must confirm which of the 2 approved locations is to be the location at which the civil partnership is solemnized (i.e. the open-air location or the alternate location). Furthermore, as per Article 15 (3) (bb) of the draft Marriage Law amendments -, the SR must have endorsed a note on the published notice of intended civil partnership, the notices of intended civil partnership book and on any electronic records so as to accurately record the approved location confirmed by the couple.

Article 15 (5) (b) of the 2001 Law references Article 13 of the Law. No mirroring references are required as provisions relating to forbidding of issuing of a schedule or a certificate are to be removed from the Law as it is not possible to forbid issue of schedule or certificate on grounds of age.

It should be noted that Article 15 (9) of the 2001 Law contains a typo; “from’ should read “form”

Issue of certificate of no impediment by Superintendent Registrar for civil partnership outside Jersey

Article 12 of the 2012 Law provides for the civil partnerships formed outside of Jersey. The provisions of Article 12 of the 2012 law need to be amended to mirror the provision of Article 16 of the 2001 Law subject to the changes set out below.

All references to marriage should read civil partnership.

Reference to Article 24 of the 2001 Law needs to reflect the Article number for Civil Partnership; Special circumstances

Reference to Article 11 of the 2001 Law is reference to provisions relating to Publication of notice and entry into intended marriage book

The SR must be satisfied that both parties to the CP are of full age, in addition to the other matters set out in Article 16 (3) (a) – (c) of the 2001 Law

16 (4) of the 2001 Law references Article 13 of the Law. As above, no mirroring references is required as provisions relating to forbidding of issuing of a schedule or a certificate are to be removed from the Law as it is not possible to forbid issue of schedule or certificate on grounds of age.

Solemnization of civil partnership

Article 14 of the 2012 law makes provision for the solemnization of civil partnership on approved premises. The provisions of Article 14 of the 2012 Law need to be amended to mirror the provision of Article 17 of the 2001 Law subject to the changes set out below.

All reference to marriage should read civil partnership.

Reference to Article 24 of the 2001 Law needs to reflect the Article number for Civil Partnership; Special circumstances

Reference to marriage celebrant / civil marriage celebrant should read civil partnership celebrant.

Reference to “lawful wedded wife [husband] [spouse] in the declaration should read “lawful civil partner”.

Art 17 (15) of the 2001 Law should provide that nothing requires a civil partnership celebrant to solemnize a civil partnership on a particular day or time, as opposed to ‘attend the solemnization’. This amendment is being brought forward in the 2001 law by the draft Marriage Law amendments. The amended 2012 law needs to mirror this change.
Note : Article 14(6) of the 2012 provide for fees relating to the solemnization of a civil partnership by a civil partnership registrar on approved premises and, in the case of a civil partnership on the premises provided for the Superintendent Registrar, for the use of those premises.” The issue of fees is addressed in the section on fees below.

Changes to date, time or location of intended civil partnership

The 2012 law does not currently make provision for changes to date, time or location of intended civil partnerships. The law needs to be amended to make these provisions, which should mirror those set out in Article 18 of the 2001 Law, except for the following changes:

all references to marriage should read civil partnership
all references to Article 24 in the 2001 law are references to the arrangements relating to civil partnership in special circumstances (see below)
‘change of location’ should refer to “change of approved location, or alternate location as the case may be”
The provisions relating to change of date or time (as set out in para 1 of Article 23) need to be amended to clarify that;

In the case of a change of time, parties must notify the SR, not later than 25 clear days before the date of the intended civil partnership
In the case of a change of date which is earlier than the date contained in the notice of intended civil partnership, the parties must notify the SR, not later than 25 clear days before the new date of the intended civil partnership
In the case of a change of date which is later than the date contained in the notice of intended civil partnership, the parties must notify the SR, not later than 25 clear days before the date in the notice of the intended civil partnership (This is as per the new Article 18 (1) in the draft Marriage Law amendments –)
1. “the new location’ should refer to “the new approved location, or alternate location as the case may be”

Approved locations

Article 13 of the 2012 Law provides that a civil partnership may only be solemnized at an approved premises. It is intended that the 2012 law should provide that:
1. a civil partnership shall not be solemnized at a location as unless it is an approved location (i.e. an approved location may include outdoor locations as opposed to only indoor premises)
2. any location which is approved for any marriage under Article 23 (4) (4) (b) of the 2001 Law should be approved for civil partnership. This would not include locations approved for religious marriage only as per Article 23 (4) (a) of the 2001 Law. This is because a civil partnership is equivalent to a civil marriage, as opposed to religious marriage or marriage in accordance with the rite of the Anglican Church.

The Law draftsman is asked to consider if the amended 2012 law:

can simply state that a civil partnership may only be solemnized at a location approved for any marriage as per Article 23 (4) (4) (b) of the 2001 Law, OR
whether the 2012 law needs to make separate provision for a scheme for the approval of locations for civil partnership.

From an operational perspective there would be significant advantages to providing in law that the civil partnership may only be solemnized at a location approved for any marriage, as this would require minimal updating / replication of forms, application processes etc. However, in the event the law draftsman determines that separate provision is required in the 2012 Law for the approval of locations, the following instructions apply.

Article 13 of the 2012 needs to be amended to mirror the provisions of Article 23 of the 2001 Law expect in relation to the following changes.

all references to marriage should read civil partnership
reference to Article 24 should be amended to reference the article that makes provision for civil partnerships in Special Circumstances (see below)
Approval for a location under the scheme must be an approval for any civil partnership to be solemnized at that location, reflecting the provisions of para 4 (4) (b) of the 2001 Law. There is no requirement for provisions relating to ‘religious’ civil partnership as per part 4 (4) (a)
Approvals shall not be given for a location that is a usual place of religious worship for the Church of England or any other location certified by the minister as a usual place of public religious worship by any religious organisation
Arrangements for certification of usual place of public religious worship is provided for under Article 23 of the 2001 Law and do not need to be provided for separately in the 2012 law (in effect this means that Art 23 (7) – (10) and Article (13) – (14) of the 2001 law do not need replicating in the 2012 law)
Transitional arrangements are that any location approved for the solemnization of any marriage under Article 23 (4) (4) (b) of the 2001 Law will, on the coming into force of these amendments, be deemed for as an approved location for the solemnization of civil partnerships for the duration of that location’s existing approval under the 2001 law.

Civil partnership: special circumstances

Article 15 of the 2012 Law makes provision for people incapacitated by illness or disability. It does not currently make provision for other special circumstances, such as where a person is detained. Article 15 needs to be amended to mirror the provisions set out in Article 24 of the 2001 Law, except for the following changes:

all references to marriage should read civil partnership

all references to marriage schedule should read civil partnership or conversion declaration

reference to changes to the location – as set out in Art 24 (1) (d) for the 2001 law – should read approved location including any alternative location

the special circumstances described in Art 23 (2) (b) need to be amended to clarify one or both of the parties may be, or become, physically incapacitated before or after delivery of an application for notice of intended civil partnership or conversation (this is as per Article 24 (2) (b) of the draft Marriage Law amendments – )

reference should be made to the Mental Health (Jersey) Law 2016, as opposed to Mental Health (Jersey) Law 1969

Retention of civil partnership schedule and conversion declaration

Provision needs to be made relating to the retention of the civil partnership schedule and conversion declaration. The provisions should mirror those of Article 24A of the 2001 Law except that:

references to marriage should read civil partnership
references to marriage schedule should read civil partnership schedule / marriage certificate should read civil partnership certificate / marriage register should read civil partnership register

references to marriage celebrant should read civil partnership celebrant

With regard to 24A (4) the registrar must keep a register of all marriages converted to a civil partnership (as opposed to Article 24A (4) of the 2001 law which states that the registrar must keep a register of all civil partnerships converted to marriage)

The provisions above address those provisions set out in Articles 18 (1) and (2) of 2012 Law which can be removed on the basis that:

civil partnerships are solemnized by a civil partnership celebrant as opposed to registrar
the duty to make a return is provided for when the celebrant provides the signed schedule to the SR
the duty on the registrar to keep a register of civil partnerships is dealt with above

Article 18 (3) of the 2012 Law does however provide that the SR should supply each registrar with required number of registers to allow the registrar to perform their duties. This provision needs to be retained in the amended law.

Searches of those registers: Article 21 of the 2012 Law provides for searches of the registers. These provisions need to be retained except that:

21 (1) needs to be amended to reference civil partnership or conversion
21 (3) needs to be amended to reference civil partnership or conversion.

Keeping of information, books, indexes, registers etc. relating to civil partnership

Article 17 of the 2012 law provides for the keeping of information, books, indexes, registers etc. The provisions of Article 17 need to mirror those set out in Article 24B

of the 2001 law subject to the following changes:

Need to reference civil partnership as opposed to marriage (including in the title)

Provisions as per those in 24B (2) (a) of 2001 law may need to be amended to register of authorised celebrants as opposed to authorized civil celebrants, , or may need to be removed depending of law draftsman advice in relation to the whether there is a requirement to provide for matters relating to authorised civil celebrants in the 2012 law as well as in the 2001 Law

Provisions as per those in 24B (2) (b) is not required. A religious official cannot be authorised to solemnize a civil partnership.

Provisions as per those 24B (2) (c) need to read intended civil partnership book

Provisions as per those in 24B (2) (d) may need to removed depending on law draftsman advice in relation to the whether there is a requirement to provide for matters relating to authorised civil celebrants in the 2012 law as well as in the 2001 Law

Provision as per those in 24 (2) (f) need to be amended to:

include reference to the civil partnership register and civil partnership conversion register and
remove reference to incumbent of Anglican churches should be removed, as they cannot solemnize a civil partnership [note: there is a drafting error in the 2001 law as the provisions in 24B (2) (f) and (g) repeat each other]

Provisions as per 24B (4) (a) needs to be amended to provide that the registrars must keep a register of the civil partnership that took place before the coming into force of this amendment (as opposed to Amendment no 4 to the 2001 law)

Provisions as per 24B (4) (b) needs to be amended to include reference to marriage schedule and civil partnership conversion documents.

Article 20 of the 2012 Law: Proof of certain matters not necessary to validity of civil partnerships

Article 20 of the 2012 law provides for proof of certain matters not necessary to validity of civil partnerships. Article 20 needs to be amended to make provisions that mirror those of Article 24D of the 2001 Law subject to the following changes:

References to marriage should read civil partnership

Reference to parties to be married should read intended civil partners

24D (1) cross references void civil partnerships (see below) Note; the cross references in the 2001 Law is incorrect it should read 24E, not 24F and needs to be amended.

The provisions set out in 24D (1) (b) for consent under Article 4 is not required. This refers to consent to marriage of minor. No person may consent to the marriage of minor.

The provision set out in 24D (2) should cross reference to provisions relating to the approval of locations within the 2012 Law.

The provision set out in 24D (3) should cross reference to provisions relating to use of religious service (as set out in Solemnization of a civil partnership and civil partnership by conversion) – i.e. a CP will not be void if the solemnization / conversion ceremony included acts of religious worship

Civil partnerships void under the law

The circumstances which a civil partnership will be void are the same circumstances in which a marriage will be void as set out in Article 24E of the 2001 law. Mirroring provision is therefore required subject to the following changes:
1. The title of Article 24E is includes reference to ‘under this Part” (the ‘Part’ being civil marriage as opposed to marriage under Anglican rights). The reference to ‘under this Part’ is no required for the purposes of the 2012 law.

As set out in comments on Article 4 above, a civil partnership will also be void if:

either party is married or in a civil partnership with another person
either party below the age of 18, unless the transitional arrangements apply
the parties are a prohibited degree of relationships with each other.

As set out in section on civil partnership by conversion, the 2012 Law needs to provide that a civil partnership which results from:

the conversion of a void marriage shall be void (mirroring provision is required in the 2001 Law to set out that a marriage which results from the purported conversion of a void civil partnership shall be void)
the conversion of a marriage formed via the conversion of a civil partnership shall be void (a mirroring provision is required in the 2001 Law) - see the Marriage Law amendments

Reference the Article 24 in the 2001 law is a reference to Civil Partnership; Special circumstances

Co-operation and disclosure

The 2012 law needs to make provisions for co-operation and disclosure that mirror those provisions made under Article 24F of the 2001 Law.

The provisions that mirror 24F (4) of the 2001 Law need to provide for where a person is intending to marry in or to form a civil partnership in another jurisdiction. [Note; 24F (4) of the 2001 Law also needs to be amended to cross reference both marriage and civil partnership]

Powers to ask for particulars of civil partnership

The provisions of Article 19 of the 2012 Law needs amending - the person under a duty to register the civil partnership may require the SR to provide the particulars, as opposed to currently requiring the parties to the civil partnership to provide the particulars (this is equivalent to Article 71 of the 2001 Law).

Correction of errors in books and registers

Article 22 of the 2012 law makes equivalent provisions to the Article 79 of the 2001 Law. It does not need amending.

Offences

The heading of Article 23 of the 2012 Law refers to offences relating to the registration of a civil partnership. This needs amending as a civil partnership is not formed by registration and the offences provided for are broader than those that relate to registration alone. (The 2001 Law draws this distinction by providing for offences relating to solemnization in Article 76 and registration in Article 77 of that law). The law draftsman may determine that the 2012 Law should provide for all offences in one Article as per the current structure of the 2012 law or to separate the offences into different Articles as per the 2001 Law.

Offences relating to solemnization of a civil partnership

As per 23 (1) it will be an offence to knowingly and voluntarily, make a false declaration or sign any false document or otherwise provide false information for the purpose of:

giving notice of intended civil partnership or
obtaining any civil partnership schedule, certificate of no impediment or declaration of conversion of a marriage to a civil partnership or
having a civil partnership solemnized or a marriage converted to a CP.

References in Art 23 (2) needs to be amended. A person cannot forbid the issue of licence and therefore cannot make a statement that their consent is required (as this relates to the current provisions of Article 5 and 6 which are to be removed as they provide for CP between people aged 16 and 17). However, provision is still required for when a person knowingly and voluntarily makes a false declaration etc when entering a caveat (Note: this required amend also applies to Article 76 (2) of the 2001 Law and Article 76 (2) should be amended in the same way).

Article 23 (3) - It will be an offence for the Superintendent Registrar to knowingly and voluntarily:

issue a CP schedule or certificate of no impediment to CP pursuant to a notice of intended marriage which is void by virtue of the fact that it has expired (a notice of intended civil partnership will expire 1 year after it was first published – as per the amended provision to be made reflecting those of Article 11(2) of the 2001 Law)
issue a CP schedule fewer than 25 clear days between the date on which the notice of intended CP was given and the date of the CP set out on that notice
issue a certificate of no impediment to CP fewer than 25 clear days between the date on which the certificate of no impediment to CP was issued and the date of the CP specified on the notice of intended CP
issue a CP schedule or certificate on which a lawful objection has been entered
authorize a civil partnership celebrant to solemnize a CP in a location that is not a location approved for any marriage / approved for civil partnerships (the wording of the offence may vary depending on the law draftsman advice as to provisions for approved locations in the 2012 law)

It will be an offence for a person, knowingly and voluntarily, to solemnize a CP declared void by the 2012 Law.

It will be an offence for a person, knowingly and voluntarily, to solemnize a CP on the authority of a CP schedule which is void or before the expiry of any period required by this Law to elapse after the issue of the CP schedule and before the solemnization of the CP.

It will be an offence for a person, knowingly and voluntarily, to solemnize a CP pursuant to a civil partnership schedule in a location other than an approved location specified in the notice of intended CP and CP schedule or, in a case in which Special Circumstances applies, at the location approved under that Article.

It shall be an offence for a person other than a civil partnership celebrant to solemnize a CP.

Depending on draftsman’s advice as to the need to make provision for approval of location and celebrant under the 2012 law, in addition to the 2001 law, it may be necessary to also mirror the offences set out in Article 76 (8) of the 2001 law.

The provisions of Art 23 (9) are required without amendment.

As per existing provisions set out in Art 23 (12) as person guilty of the offences set out above will be liable to imprisonment for a term of 5 years and a fine.

The provisions of Art 23 (10) are required without amendment. As per existing provisions set out in Art 23 (13) as person guilty of this offence will be liable to fine on level 3 on the standard scale.

The provisions of Article 23 (11) are required without amendment. As per existing provisions set out in Art 23 (14) as person guilty of this offence will be liable to fine on level 2 on the standard scale.

Declarations (Article 24 of the 2012 law)

The reference to Article 8(7) will need to be updated. It will need to reference declarations obtained by the Royal Court in relation to Caveat against issue of civil partnership schedule or certificate of no impediment.

Orders concerning registration (Article 25 of the 2012 law)

The 2012 law needs to provide that the Minister:

may make orders relating to information and particulars to be included in any application, certificate, declaration, form or notice provided under Part 2 of the 2012 law. This is as per Article 24G of the 2001 Law
may make orders amending any period specified in Part 2 (for example, may amend the 25-day notice period). This is a per Article 24G of the 2001 Law.
shall make Orders relating to the registration of a CP. These are as per the current provisions of Article 25 of the 2012 except that (c) needs to include reference to civil partnerships including civil partnerships by conversion.

Note: If Article 25 is amended to make provision for Orders as per a) and b) above – as opposed to these provisions being made in a different Order - the title of Article 25 will need to be amended.

Duty of Minister: Article 26 of the 2012 Law

Article 26 needs to be amended:

(1) should be amended to include civil partnerships by conversion
(2) should be amended to reference assessing whether the registrar is discharging his or her duties, as opposed to the SR discharging his or her duties.

Schedule 1 of the 2012 Law

As set out above:

Article 1(1) (b) (i) and Article 4 need to be removed as they make provisions in relation to same sex civil partnerships which are no longer required.
Article 5 needs amending to provide that if a civil partnership is formed overseas by a person who was, at the time domiciled in Jersey, the civil partnership will not be recognized if either party was under 18 years old at the time the civil partnership was formed.

Further changes need to be made to deal with matters relating to “specified relationships”. Article 1 (1) (a) sets out that an overseas relationship is a specified relationship or one which meets the conditions set out in Article 1 (2). Article 2 provides a list of specified relationships; this being a list of civil partnership ‘equivalent’ relationships adopted in 2012 as reflecting UK legislation at that point in time. That list is;

known to be out of date in some places (for example; it references marriages which should not be recognised as civil partnership but as marriage)
suspected to be inaccurate in other places. Some of the jurisdictions listed provide for civil partnerships which were never ‘marriage equivalent’ as per Jersey’s civil partnerships but where those relationships were included in the Specified Relationships list because they were the only option at that point in time for same-sex couples. However, now that same-sex marriage is now available in some of those jurisdictions it is not clear if the listed relationships should continue to be included in law.

It will take time to undertake a proper review of the list of Schedule 1 relationships and will require a mechanism to keep it up to date in a more timely manner. It is therefore proposed that:

the list in Article 2 is amended to remove reference to all countries whose relationship is described as ‘marriage’
Article 2 (2) is amended to provide that the list in Article 2 (1) may be amended by the Minister by Order. It is envisaged that changes to the list may be piecemeal as more jurisdictions provide for same sex marriage – and if they do so we should remove non-marriage equivalent civil partnerships from the list. It will be overly burdensome for the States to debate changes to this list by Regulation.

There is concern that Article 1 (2) (c) (i) it is too ambiguous and broad and that it supports recognition of civil partnerships in Jersey which are not marriage equal. However, amending the law to remove reference to relationships in which the couple are treated as a couple (as distinct from being treated as if they were married) could place some overseas couples, who have very limited options in their home countries, at a significant disadvantage so, therefore, the provision should be maintained. This is as per the law in England & Wales and Scotland.

Civil partnership by conversion

The 2012 Law needs to be amended to provide that a civil partnership may be formed by conversion of a marriage to mirror the provisions in the 2001 law that allow for a marriage to be formed via conversion of a civil partnership. Providing for civil partnership by conversion requires:

changes to the 2012 Law,
changes to 2001 Law to provide for consequences that arise from conversion of a marriage to a CP and the changes to the age of marriage and civil partnership.

Conversion and age of marriage / CP

Our policy position, from the point at which amendments to the 2001 Law and 2012 Law are adopted is that Jersey does not sanction marriage or civil partnership below 18 years old. We will not recognize either a marriage or a civil partnership entered into in another jurisdiction by someone who is ordinarily resident in Jersey if either party to that marriage or civil partnership is below 18 years old, even where that marriage or civil partnership is legal in that jurisdiction.

If the marriage / civil partnership is void at the point it is entered into, it is a void marriage / civil partnership. Therefore, if a Jersey resident party lawfully marries / forms a civil partnership with a 16-year-old in another jurisdiction, their marriage / civil partnership is void under Jersey law, i.e. we will not recognise the marriage as having been formed in the first instance, as opposed to refusing to recognise the marriage whilst either party is below 18 years old but starting to recognise it at the point at which both parties have turned 18 years old.

This policy position follows through into conversion arrangements. A couple can only convert their marriage to a civil partnership if the marriage was valid at the point in time it was formed. This means that:

Scenario 1 (Jersey resident)

A and B are Jersey resident, they marry in Jersey or elsewhere, in September 2020
A is 16 years old
Age of marriage in Jersey is 16
A and B’s marriage is legal
Age of marriage and civil partnership increases to 18 in Jersey in March 2021
A and B can convert their marriage to civil partnership in September 2021 when A is still only 17 years old because the marriage (and therefore the civil partnership which will have subsisted from the date) was legal in Jersey at the point at which it was solemnized.

Scenario 2 (Jersey resident)

C is 16 years old and lives in another jurisdiction
D is 19 and lives in Jersey
C and D marry in March 2021 in the jurisdiction in which C lives (D did not need a certificate of no impediment to marry in that jurisdiction)
Their marry is legal in that jurisdiction but void in Jersey because the age of marriage is 18 at that point in time
C and D cannot convert their marriage to a civil partnership in Jersey because their marriage if void in Jersey. They cannot convert at any point in time, including once C is 18 years old.

Scenario 3 (non-Jersey resident)

E and F are 16 years old and both live in another jurisdiction
E and F marry in the jurisdiction in which they live in September 2020
The age of marriage is that jurisdiction is 16 years old and 16 in Jersey
Their marriage is legal in that jurisdiction and legal in Jersey
Age of marriage and civil partnership increases to 18 in Jersey in March 2021
E and F can convert their marriage to civil partnership in September 2021 when E is still only 17 years old because the marriage (and therefore the civil partnership which will have subsisted from the date the marriage was formed) was legal in Jersey at the point at which it was solemnized.

Scenario 3 (non-Jersey resident)

G and H are 16 years old and both live in another jurisdiction
G and H marry in the jurisdiction in which they live in March 2021
The age of marriage is that jurisdiction is 16 years old but 18 in Jersey
Their marriage is legal in that jurisdiction and legal in Jersey because neither were resident in Jersey at the time of the marriage
G and H want to convert their marriage to a CP in Jersey in 2023 at which point they are over 18 years old
They cannot convert because the civil partnership which is formed by conversion will have subsisted since March 2021 when the legal age of civil partnership was 18 years old.

Amendments to the 2012 law

As set out above Article 2 of the 2012 law needs to provide that a civil partnership may be formed by two people who are lawfully married to each other converting their marriage to a civil partnership.

Restrictions on civil partnership by conversion mirror those of marriage by conversion as provided for in Article 5 of the 2001 Law, including:

a CP which results from the conversion of void marriage shall be void (a void marriage includes as per Scenario 2 above)

a CP by conversion shall be void if:

at the time the marriage was formed either party was below age 18 years (subject to transitional arrangements)
the marriage was formed by conversion of a civil partnership
the marriage is between parties who are in a prohibited degree of relationship
the marriage is between a person and

- his or her former spouse’s /civil partner’s child or grandchild or

- his or her former spouse’s /civil partner’s adoptive child or adoptive grandchild

- his or her father’s or grandfather’s former spouse /civil partner or,

- his or her mother’s or grandmother’s former spouse / civil partner

Unless both parties to the marriage were of full age at the time of solmization and the younger party had not at any time been a child of the family in relation to the other party.

For the purposes of clarity, a marriage which was solemnized by a religious official including a member of the Anglican clergy may be converted to a CP, in addition to a marriage solemnized by a civil marriage celebrant.

A couple who wish to form a CP by conversion must apply to the SR. The provisions relating to the application for conversion process mirror those provisions set out in Article 19 of the 2001 Law except that they must apply within two years of the coming into force of the amendments to the 2012 law(see below).

Conversion allows opposite sex spouses, who previously could not enter into a civil partnership to convert their marriage to a civil partnership if they wish to do so. As set out in Section 1 conversion carries some risks and also has resource implications for the Office of the Superintendent Registrar. The law should, therefore, limit the period of application to convert to two years after the coming into force of the amendments to the 2012 Law but with a power for the States Assembly to extend that two-year period if deemed appropriate. (The 2001 Law needs to be amended to make matching provisions; see below)

The SR must give consideration to that application, as per the provisions set out in Article 20 of the 2001 Law.

The SR must issue the conversion of marriage declaration, as per the provisions set out in Article 21 of the 2001 Law. (Note: 21 (3) should be amended to include reference to both parties to the intended conversion having confirmed the location of the conversion – as per draft amendments to the Marriage law)

The provisions relating to civil partnership by conversion of marriage are as per the provisions of Article 22 of the 2001 Law. This includes:

conversion via an administrative route or via a conversion ceremony
providing that a marriage that is converted to a CP is to be treated as if it was always a CP
providing that spouses who convert their marriage to a CP are to be treated as if they become civil partners from either:

the day their marriage was formed, if this date is after the coming into force of the 2012 Law, or
the date on which the 2012 Law came into force, if they married before this date.

This is because a civil partnership cannot be recognised as having been formed before the 2012 law came into force because, until that point, civil partnerships were not recognised in Jersey law. This is as per the legislation in the UK. Note: a similar amendment must be made to the 2001 Law to reflect this position.

(Note: 22 (2) of the 2001 Law should read “by” as opposed to “in the presence of”– as per draft amendments to the Marriage law)

Fees for marriage by conversion and civil partnership by conversion

When same sex marriage was introduced in 2018 the decision was taken not to set any fees for conversions as this would penalise same sex couples who were having to convert from a civil partnership to a marriage because they had no other option for a legal relationship at the time. Couples who wish to marry by conversion have now had two years to convert with no fee, and it is now time to prescribe a fee to offset the cost of administrative resources and staff time. Part 3 of the Marriage and Civil Status (Jersey) Order 2018 needs to be amended accordingly:

Item 5: application of conversion fee is £100
Item 6; request for and issuance of conversion declaration form is £ 300
Item 7: solmization of marriage by conversion is £150 if the SIR/DSIR conduct the ceremony. Also, there is no fee associated with an administrative conversion as it is included in the issue of conversion declaration form fee of £300.

A comparable order needs to be provided under the 2012 law, but the fees for Civil Partnership by conversion will be set at £0 for the first two years for couples who married to reflect the provision originally made for marriage.

Transitional arrangements relating to conversion and age of marriage

As set out above a CP by conversion shall be void if, at the time the marriage was formed, either party was below age 18 years (as per Scenario 4 above) but this is subject to transitional arrangements.

A CP can be converted to marriage if, at the time the marriage was formed one / both the parties were 16 or 17 years old if, before the coming into force of the draft marriage law amendments which increase age of marriage to 18 years old,

the marriage was solemnized in Jersey or elsewhere and was a valid marriage
the couple had already given notice of their intended civil partnership to the Superintendent Registrar, or
the couple notified the SR of a change of date for their intended civil partnership in accordance with the provisions of the law Art 18 as substituted by the draft CP Law amendment

(This is as per Scenario 1 and 3 above)

Powers to make further provision

It is recognised that variations may, at some point in the future be required to the provisions the law which go beyond those currently provided in Article 71. The law draftsman is therefore asked to amend Article 71 of the 2012 Law to broaden the regulation making powers so that they mirror the powers provided under Article 82 (2) of the 2001 Law. It is intended that the States may, by regulation, amend the articles of the law that provide for:

Interpretation provisions
Matters relating to the solemnization of civil partnership
Civil partnership by conversion
Approved locations (this would address the provisions currently made in Article 71 (1) (a) and 71 (2) (a), (b) and (e) of the 2012 law)

Article 71 (1) (b) and Article 71 (2) (c) and (d) address provisions relating to authorised civil celebrants. The requirement for these provisions will be dependent of whether or not separate provision is made in relation to authorised celebrants in the 2012 law.

The provisions of 71 (3) need to be amended. The States may by regulation make amendments to any enactment, including the 2012 Law, that appear to be expedient – i.e. this s power to amend should not be restricted to Schedule 4 as per the current provisions (note: these mirror the provisions of Article 82 (3) of the 2001 Law)

The Minister will need to be able, if it is considered necessary or expedient, to prescribe transitional arrangements that are a consequence to the amendments to the 2012 law as set out in these instructions (This mirrors the provisions of Article 82 (5) of the 2001 Law).

Note: Article 82 of the 2001 Law; on changing the age of marriage to 18 years old, the power to amend increase the age of marriage by regulations as set out in Article 82 (1) of the 2001 Law is no longer required. Therefore, mirroring provision does not need to be made to the 2012 Law

Fees under the 2012 Law

The amendments to the 2012 law as set above will provide for the following fees to charged. These fees will all be prescribed by Order:

Description	Note
Fees relating to authorisation as civil celebrant	Dependent on law draftsman’s advice on whether separate provision required in the 2012 for authorisation of civil celebrants.
Fees relating to approval of locations for a civil partnership	Dependent on law draftsman’s advice on whether separate provision required in the 2012 for authorisation of civil celebrants.
Application for a notice of intended civil partnership	As set out above - mirrors provision of Article 8 of 2001 Law
Request for and issuance of civil partnership schedule	As set out above - mirrors provision of Article 15 of 2001 Law
Request for and issuance of a certificate of no impediment to civil partnership	As set out above - mirrors provision of Article 16 of 2001 Law
Change of date, time or location contained in the published notice of intended civil partnership	As set out above - mirrors provision of Article 18 of 2001 Law
Application for conversion	See instructions on conversion
Request for and issuance of a conversion declaration form	See instructions on conversion
Solemnization of a civil partnership by conversion	See instructions on conversion
Superintendent Registrar’s attendance to sign forms and do identity checks in special circumstances	See instructions on special circumstance
Amendments to a marriage schedule, book or certificate arising from special circumstances	See instructions on special circumstance
Fee for each civil partnership that a registrar registers and for the provisions of returns or registers	Article 21
Copy of entry in register kept by a registrar under the Law	Article 21
Search of indexes	Article 21
Copy certified under the hand of the Superintendent Registrar of any entry in a book or register – (a) if issued on the same day that the application for made; (b) if issued after the day on which the application is made	Article 21

Article 80C of the 2001 Law makes provision in relation to fees and charges. The 2012 Law needs to make mirroring provision. This includes providing that the SR may charge for services that are incidental to the SR functions. Those charges, which may be prescribed will include:

Supplementary fee for use of the office of the Superintendent Registrar as a location for the solemnization of a civil partnership taking place on Monday to Friday

Supplementary fee for use of office of the Superintendent Registrar as a location for the solemnization of marriage taking place on Saturday, Sunday or a bank holiday

Solemnization of a marriage by the Superintendent Registrar or Deputy Superintendent Registrar on Monday to Friday at the office of the Superintendent Registrar

Solemnization of a marriage by the Superintendent Registrar or Deputy Superintendent Registrar on a Saturday, Sunday or bank holiday at the office of the Superintendent Registrar

Solemnization of a marriage by the Superintendent Registrar or Deputy Superintendent Registrar at any approved location other than the office of the Superintendent Registrar

Delivery of a certificate or document by Superintendent Registrar to the Customs and Immigration Department for an apostille

Amendment to 2001 Law

Consequential amendments

The instructions above require consequential amendments to the 2001 Law as set out below.

Article 5 of the 2001 Law needs to be amended to provide that a marriage which results from the conversion of civil partnership which was formed by conversion from a marriage will be void. This will have the effect of limiting each couple to one conversion and preventing a cycle of continual conversion.

Article 5 (2) (b) of the 2001 Law provides that a marriage that results from a converted civil partnership will be void if either party was under age 16. As set out in Draft Marriage Law amendments:

5 (2) (b) is to be amended to age 18
5 (2) (c) is to be removed

Article 19 should be amended to provide that an application for conversion of a civil partnership to a marriage must be delivered to the SR within two years of the coming into force of the amendments to the 2001 law.

Article 19 of the 2001 Law needs to be amended to provide that an application for conversion of a CP to a marriage must be accompanied by evidence that:

the civil partnership was not formed by conversion from a marriage, in order to limit each couple to one conversion
both parties to the civil partnership were not less than 18 years old at the point the civil partnership was formed subject to the transitional arrangements.

Article 22 needs to be amended to provide that couples whose civil partnership is an overseas civil partnership, unless the civil partnership was formed in the British Isles, must convert their civil partnership at a ceremony (as per Article 22 (5)), as opposed to being allowed to convert without a ceremony (as per Article 22 (4)). This is as per the provisions of Scottish Law and allows for those in an overseas civil partnership to convert to marriage but includes a ceremonial route to signify the solemnity and dignity of marriage (which may not have been a feature when their overseas civil partnership was formed). In England and Wales, a couple cannot covert their overseas CP to a marriage so, if they want to get married, they must dissolve their CP in the first instance.

Article 22 (15) and (16) need to be amended to clarify that a civil partnership that is converted to a marriage shall be treated as if the marriage was formed on the day the civil partnership was formed if the civil partnership was formed in the British Islands (England, Wales, Scotland, Northern Ireland, Guernsey, Jersey, IoM) unless it is an overseas civil partnership in which in case the marriage will be recognised as having been formed either:
1. the day civil partnership was formed, if this date is after the coming into force of the 2012 Law, or
2. the date on which the 2012 Law came into force, if civil partnership was formed before this date. This is in accordance with Schedule 1, Article 3 of the 2012 Law.

(Note: it has been confirmed that none of the civil partnership converted to marriage to date in Jersey are affected by this amendment)

[1]https://www.gov.je/SiteCollectionDocuments/Government%20and%20administration/R%20equal%20marriage%20consultation%20report%20summary%2020141126%20LB.pdf

[2] https://www.supremecourt.uk/cases/docs/uksc-2017-0060-judgment.pdf

[3] https://www.gov.je/Government/Consultations/Pages/DivorceReform.aspx

[4]https://www.gov.je/SiteCollectionDocuments/Government%20and%20administration/Consultation%20report%20-%20divorce%20reform,%20future%20of%20civil%20partnerships,%20and%20age%20of%20marriage.pdf

[5] The draft marriage law amendments are currently being drafted by law draftsman.

[6] A couple can currently convert their civil partnership to marriage at any point in time; this includes converting a civil partnership which was formed after the introduction of same-sex marriage. The fee for a conversion was set as £0 in the Order with the intention of amending that fee after a few years once same-sex couples who had been denied access to marriage had been provided a sufficient period of time to convert their CP to marriage for free

[7] At the point at which the 2001 Law was amended, consideration was given to only allowing civil partnerships formed before the introduction of same-sex marriage to be converted to marriage, but there were some concerns that is could place Jersey residents who entered in a civil partnership in Jersey at a disadvantage to non-Jersey residents whose civil partnerships were formed in a jurisdiction where same-sex marriage is not permitted.

[8] In March 2018 the Civil Partnership (Amendment) (Jersey) Law 201 – (“the draft CP Law amendment”) was drafted but was never finalised or enacted. Those amendments address the changes required to bring the procedures associated with solemnization of a civil partnership into line with solemnization of a marriage. For information the draft CP law amendment is below. Note: that draft CP law amendment only addressed procedural matters it did not address matters such as conversion of marriage to CP, changes to age of CP or CP for opposite sex couples.