Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Schedule 5 — Wills, administration of estates and family provision
Part 2 — Administration of estates and family provision
139

Part 2
Administration of estates and family provision
Public Trustee Act 1906 (c. 55)
6
In section 6(1), after “widower, widow” (in both places) insert “, surviving
civil partner”.
5
Administration of Estates Act 1925 (c. 23)
7
In section 46 (succession to real and personal estate on intestacy), for
“husband or wife” (in each place) substitute “spouse or civil partner”.
8     (1)
Amend section 47(1) (meaning of “the statutory trusts”) as follows.
      (2)
In paragraph (i), after “or marry under that age” (in the first place) insert “or
10
form a civil partnership under that age”.
      (3)
In that paragraph, after “or marry” (in the second place) insert “, or form a
civil partnership,”.
      (4)
In paragraph (ii), after “marries” insert “, or forms a civil partnership,”.
9
In section 47A, in subsection (1) and in the proviso to subsection (5), for
15
“husband or wife” substitute “spouse or civil partner”.
10
In section 48(2), for “husband or wife” (in each place) substitute “spouse or
civil partner”.
11
In section 51(3) (devolution of certain estates vested in infant who dies
without having married and without issue), after “without having been
20
married” insert “or having formed a civil partnership,”.
12
In section 55(1)(xviii) (which defines “valuable consideration” as including
marriage), after “includes marriage,” insert “and formation of a civil
partnership,”.
Intestates’ Estates Act 1952 (c. 64)
25
13    (1)
Amend section 5 and Schedule 2 (rights of surviving spouse as respects the
matrimonial home) as follows.
      (2)
For “husband or wife” (in each place) substitute “spouse or civil partner”.
      (3)
In section 5, after “matrimonial” insert “or civil partnership”.
      (4)
In the heading of each—
30
(a)
after “spouse” insert “or civil partner”, and
(b)
after “matrimonial” insert “or civil partnership”.
Family Provision Act 1966 (c. 35)
14
In section 1(1) (fixed net sum payable to surviving spouse of person dying
intestate), for “husband or wife” substitute “spouse or civil partner”.
35
Inheritance (Provision for Family and Dependants) Act 1975 (c. 63)
15    (1)
Amend section 1 (application for financial provision from deceased person’s
estate) as follows.

Civil Partnership Bill [HL]
Schedule 5 — Wills, administration of estates and family provision
Part 2 — Administration of estates and family provision
140

      (2)
For subsection (1)(a) and (b) (application may be made by spouse or by
former spouse who has not remarried) substitute—
“(a)
the spouse or civil partner of the deceased;
(b)
a former spouse or former civil partner of the deceased, but
not one who has formed a subsequent marriage or civil
5
partnership;”.
      (3)
In subsection (1)(d) (application may be made by child of the family), after
“marriage” (in each place) insert “or civil partnership”.
      (4)
In subsection (2) (meaning of “reasonable financial provision”), after
paragraph (a) insert—
10
“(aa)
in the case of an application made by virtue of subsection
(1)(a) above by the civil partner of the deceased (except
where, at the date of death, a separation order under Chapter
2 of Part 2 of the Civil Partnership Act 2004 was in force in
relation to the civil partnership and the separation was
15
continuing), means such financial provision as it would be
reasonable in all the circumstances of the case for a civil
partner to receive, whether or not that provision is required
for his or her maintenance;”.
16
In section 2(1) (orders which may be made on an application), after
20
paragraph (f) insert—
“(g)
an order varying any settlement made—
(i)
during the subsistence of a civil partnership formed
by the deceased, or
(ii)
in anticipation of the formation of a civil partnership
25
by the deceased,

on the civil partners (including such a settlement made by
will), the variation being for the benefit of the surviving civil
partner, or any child of both the civil partners, or any person
who was treated by the deceased as a child of the family in
30
relation to that civil partnership.”
17    (1)
Amend section 3(2) (application by spouse or former spouse: matters to
which court is to have regard) as follows.
      (2)
For the words from the beginning to “1(1)(b) of this Act” substitute—

“This subsection applies, without prejudice to the generality of
35
paragraph (g) of subsection (1) above, where an application for an
order under section 2 of this Act is made by virtue of section 1(1)(a)
or (b) of this Act.”
      (3)
The words from “the court shall, in addition” to the end of paragraph (b)
shall become a second sentence of the subsection and, in paragraph (a) of the
40
sentence so formed, after “duration of the marriage” insert “or civil
partnership”.
      (4)
The words from “in the case of an application by the wife or husband” to the
end shall become a third sentence of the subsection.
      (5)
At the end insert the following sentence—
45

“In the case of an application by the civil partner of the deceased, the
court shall also, unless at the date of the death a separation order
under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in
force and the separation was continuing, have regard to the

Civil Partnership Bill [HL]
Schedule 5 — Wills, administration of estates and family provision
Part 2 — Administration of estates and family provision
141

provision which the applicant might reasonably have expected to
receive if on the day on which the deceased died the civil
partnership, instead of being terminated by death, had been
terminated by a dissolution order.”
18
In section 6(3) and (10) (variation etc. of orders which cease on occurrence of
5
specified event other than remarriage of former spouse), for “(other than the
remarriage of a former wife or former husband)” substitute “(other than the
formation of a subsequent marriage or civil partnership by a former spouse
or former civil partner)”.
19
After section 14 insert—
10
“14A
Provision as to cases where no financial relief was granted in
proceedings for the dissolution etc. of a civil partnership
(1)
Subsection (2) below applies where—
(a)
a dissolution order, nullity order, separation order or
presumption of death order has been made under Chapter 2
15
of Part 2 of the Civil Partnership Act 2004 in relation to a civil
partnership,
(b)
one of the civil partners dies within twelve months from the
date on which the order is made, and
(c)
either—
20
(i)
an application for a financial provision order under
Part 1 of Schedule 6 to that Act or a property
adjustment order under Part 2 of that Schedule has
not been made by the other civil partner, or
(ii)
such an application has been made but the
25
proceedings on the application have not been
determined at the time of the death of the deceased.
(2)
If an application for an order under section 2 of this Act is made by
the surviving civil partner, the court shall, notwithstanding anything
in section 1 or section 3 of this Act, have power, if it thinks it just to
30
do so, to treat the surviving civil partner as if the order mentioned in
subsection (1)(a) above had not been made.
(3)
This section shall not apply in relation to a separation order unless at
the date of the death of the deceased the separation order was in
force and the separation was continuing.”
35
20
After section 15 insert—
“15ZA
Restriction imposed in proceedings for the dissolution etc. of a civil
partnership on application under this Act
(1)
On making a dissolution order, nullity order, separation order or
presumption of death order under Chapter 2 of Part 2 of the Civil
40
Partnership Act 2004, or at any time after making such an order, the
court, if it considers it just to do so, may, on the application of either
of the civil partners, order that the other civil partner shall not on the
death of the applicant be entitled to apply for an order under section
2 of this Act.
45
(2)
In subsection (1) above “the court” means the High Court or, where
a county court has jurisdiction by virtue of Part 5 of the Matrimonial
and Family Proceedings Act 1984, a county court.

Civil Partnership Bill [HL]
Schedule 5 — Wills, administration of estates and family provision
Part 2 — Administration of estates and family provision
142

(3)
In the case of a dissolution order, nullity order or presumption of
death order (“the main order”) an order may be made under
subsection (1) above before (as well as after) the main order is made
final, but if made before the main order is made final it shall not take
effect unless the main order is made final.
5
(4)
Where an order under subsection (1) above made in connection with
a dissolution order, nullity order or presumption of death order has
come into force with respect to a civil partner, then, on the death of
the other civil partner, the court shall not entertain any application
for an order under section 2 of this Act made by the surviving civil
10
partner.
(5)
Where an order under subsection (1) above made in connection with
a separation order has come into force with respect to a civil partner,
then, if the other civil partner dies while the separation order is in
force and the separation is continuing, the court shall not entertain
15
any application for an order under section 2 of this Act made by the
surviving civil partner.”
21
After section 15A insert—
“15B
Restriction imposed in proceedings under Schedule 8 to the Civil
Partnership Act 2004 on application under this Act
20
(1)
On making an order under paragraph 9 of Schedule 8 to the Civil
Partnership Act 2004 (orders for financial provision, property
adjustment and pension-sharing following overseas dissolution etc.
of civil partnership) the court, if it considers it just to do so, may, on
the application of either of the civil partners, order that the other civil
25
partner shall not on the death of the applicant be entitled to apply for
an order under section 2 of this Act.
(2)
In subsection (1) above “the court” means the High Court or, where
a county court has jurisdiction by virtue of Part 5 of the Matrimonial
and Family Proceedings Act 1984, a county court.
30
(3)
Where an order under subsection (1) above has been made with
respect to one of the civil partners in a case where a civil partnership
has been dissolved or annulled, then, on the death of the other civil
partner, the court shall not entertain an application under section 2
of this Act made by the surviving civil partner.
35
(4)
Where an order under subsection (1) above has been made with
respect to one of the civil partners in a case where civil partners have
been legally separated, then, if the other civil partner dies while the
legal separation is in force, the court shall not entertain an
application under section 2 of this Act made by the surviving civil
40
partner.”
22
In section 16(1) (power to vary secured periodical payments orders)—
(a)
after “the Matrimonial Causes Act 1973” insert “or Schedule 6 to the
Civil Partnership Act 2004”, and
(b)
after “that Act” insert “of 1973 or Part 10 of that Schedule”.
45
23
In section 17(4) (meaning of “maintenance agreement”)—
(a)
for “entered into a marriage” substitute “formed a marriage or civil
partnership”,

Civil Partnership Bill [HL]
Schedule 5 — Wills, administration of estates and family provision
Part 2 — Administration of estates and family provision
143

(b)
after “of the parties to that marriage” insert “or of the civil partners”,
and
(c)
after “marriage” (in the third and fourth places) insert “or civil
partnership”.
24
After section 18 insert—
5
“18A
Availability of court’s powers under this Act in applications under
paragraphs 52 and 65 of Schedule 6 to the Civil Partnership Act 2004
(1)
Where—
(a)
a person against whom a secured periodical payments order
was made under Schedule 6 to the Civil Partnership Act 2004
10
has died and an application is made under paragraph 52 of
that Schedule for the variation or discharge of that order or
for the revival of the operation of any suspended provision of
the order, or
(b)
a party to a maintenance agreement within the meaning of
15
Part 12 of that Schedule has died, the agreement being one
which provides for the continuation of payments under the
agreement after the death of one of the parties, and an
application is made under paragraph 65 of that Schedule for
the alteration of the agreement under paragraph 61 of that
20
Schedule,

the court shall have power to direct that the application made under
paragraph 52 or 65 of that Schedule shall be deemed to have been
accompanied by an application for an order under section 2 of this
Act.
25
(2)
Where the court gives a direction under subsection (1) above it shall
have power, in the proceedings on the application under paragraph
52 or 65 of that Schedule, to make any order which the court would
have had power to make under the provisions of this Act if the
application under that paragraph had been made jointly with an
30
application for an order under section 2 of this Act; and the court
shall have power to give such consequential directions as may be
necessary for enabling the court to exercise any of the powers
available to the court under this Act in the case of an application for
an order under section 2.
35
(3)
Where an order made under section 15ZA(1) of this Act is in force
with respect to a civil partner, the court shall not give a direction
under subsection (1) above with respect to any application made
under paragraph 52 or 65 of that Schedule by that civil partner on the
death of the other civil partner.”
40
25    (1)
Amend section 19 (effect, duration and form of orders) as follows.
      (2)
In subsection (2)(a), for “former husband or former wife” substitute “former
spouse or former civil partner”.
      (3)
In subsection (2), after paragraph (b) insert “or
(c)
an applicant who was the civil partner of the deceased in a
45
case where, at the date of death, a separation order under
Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in
force in relation to their civil partnership and the separation
was continuing,”.

Civil Partnership Bill [HL]
Schedule 5 — Wills, administration of estates and family provision
Part 2 — Administration of estates and family provision
144

      (4)
In that subsection, in the words after paragraph (b), for “on the remarriage
of the applicant” onwards substitute “on the formation by the applicant of a
subsequent marriage or civil partnership, except in relation to any arrears
due under the order on the date of the formation of the subsequent marriage
or civil partnership.”
5
      (5)
In subsection (3), after “section 15(1)” insert “or 15ZA(1)”.
26    (1)
Amend section 25 (interpretation) as follows.
      (2)
In subsection (1), in the definition of “former wife” and “former husband”,
for ““former wife” or “former husband”” substitute ““former spouse””.
      (3)
In that subsection, before that definition insert—
10

““former civil partner” means a person whose civil partnership
with the deceased was during the lifetime of the deceased
either—
(a)
dissolved or annulled by an order made under the
law of any part of the British Islands, or
15
(b)
dissolved or annulled in any country or territory
outside the British Islands by a dissolution or
annulment which is entitled to be recognised as valid
by the law of England and Wales;”.
      (4)
In subsection (4)—
20
(a)
before “wife” insert “spouse,” and
(b)
in paragraph (b), for “entered into a later marriage” substitute
“formed a subsequent marriage or civil partnership”.
      (5)
For subsection (5) substitute—
“(4A)
For the purposes of this Act any reference to a civil partner shall be
25
treated as including a reference to a person who in good faith formed
a void civil partnership with the deceased unless either—
(a)
the civil partnership between the deceased and that person
was dissolved or annulled during the lifetime of the deceased
and the dissolution or annulment is recognised by the law of
30
England and Wales, or
(b)
that person has during the lifetime of the deceased formed a
subsequent civil partnership or marriage.
(5)
Any reference in this Act to the formation of, or to a person who has
formed, a subsequent marriage or civil partnership includes (as the
35
case may be) a reference to the formation of, or to a person who has
formed, a marriage or civil partnership which is by law void or
voidable.
(5A)
The formation of a marriage or civil partnership shall be treated for
the purposes of this Act as the formation of a subsequent marriage or
40
civil partnership, in relation to either of the spouses or civil partners,
notwithstanding that the previous marriage or civil partnership of
that spouse or civil partner was void or voidable.”
      (6)
After subsection (6) insert—
“(6A)
Any reference in this Act to an order made under, or under any
45
provision of, the Civil Partnership Act 2004 shall be construed as
including a reference to anything which is deemed to be an order
made (as the case may be) under that Act or provision.”