House of Commons portcullis
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.”

 

 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2004
Revised 7 July 2004