Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings
18

39
Intervention of the Queen’s Proctor
(1)
This section applies if an application has been made for a dissolution, nullity
or presumption of death order.
(2)
The court may, if it thinks fit, direct that all necessary papers in the matter are
to be sent to the Queen’s Proctor who must under the directions of the
5
Attorney General instruct counsel to argue before the court any question in
relation to the matter which the court considers it necessary or expedient to
have fully argued.
(3)
If any person at any time—
(a)
during the progress of the proceedings, or
10
(b)
before the conditional order is made final,

gives information to the Queen’s Proctor on any matter material to the due
decision of the case, the Queen’s Proctor may take such steps as the Attorney
General considers necessary or expedient.
(4)
If the Queen’s Proctor intervenes or shows cause against the making of the
15
conditional order in any proceedings relating to its making, the court may
make such order as may be just as to—
(a)
the payment by other parties to the proceedings of the costs incurred by
him in doing so, or
(b)
the payment by the Queen’s Proctor of any costs incurred by any of
20
those parties because of his doing so.
(5)
The Queen’s Proctor is entitled to charge as part of the expenses of his office—
(a)
the costs of any proceedings under subsection (2);
(b)
if his reasonable costs of intervening or showing cause as mentioned in
subsection (4) are not fully satisfied by an order under subsection (4)(a),
25
the amount of the difference;
(c)
if the Treasury so directs, any costs which he pays to any parties under
an order made under subsection (4)(b).
40
Proceedings before order has been made final
(1)
This section applies if—
30
(a)
a conditional order has been made, and
(b)
the Queen’s Proctor, or any person who has not been a party to
proceedings in which the order was made, shows cause why the order
should not be made final on the ground that material facts have not
been brought before the court.
35
(2)
This section also applies if—
(a)
a conditional order has been made,
(b)
3 months have elapsed since the earliest date on which an application
could have been made for the order to be made final,
(c)
no such application has been made by the civil partner who applied for
40
the conditional order, and
(d)
the other civil partner makes an application to the court under this
subsection.
(3)
The court may—
(a)
make the order final,
45
(b)
rescind the order,

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings
19

(c)
require further inquiry, or
(d)
otherwise deal with the case as it thinks fit.
(4)
Subsection (3)(a)—
(a)
applies despite section 37(2) (period before conditional orders may be
made final), but
5
(b)
is subject to section 48(4) (protection for respondent in separation cases)
and section 63 (restrictions on making of orders affecting children).
41
Time bar on applications for dissolution orders
(1)
No application for a dissolution order may be made to the court before the end
of the period of 1 year from the date of the formation of the civil partnership.
10
(2)
Nothing in this section prevents the making of an application based on matters
which occurred before the end of the 1 year period.
42
Attempts at reconciliation of civil partners
(1)
This section applies in relation to cases where an application is made for a
dissolution or separation order.
15
(2)
Rules of court must make provision for requiring the solicitor acting for the
applicant to certify whether he has—
(a)
discussed with the applicant the possibility of a reconciliation with the
other civil partner, and
(b)
given the applicant the names and addresses of persons qualified to
20
help effect a reconciliation between civil partners who have become
estranged.
(3)
If at any stage of proceedings for the order it appears to the court that there is
a reasonable possibility of a reconciliation between the civil partners, the court
may adjourn the proceedings for such period as it thinks fit to enable attempts
25
to be made to effect a reconciliation between them.
(4)
The power to adjourn under subsection (3) is additional to any other power of
adjournment.
43
Consideration by the court of certain agreements or arrangements
(1)
This section applies in relation to cases where—
30
(a)
proceedings for a dissolution or separation order are contemplated or
have begun, and
(b)
an agreement or arrangement is made or proposed to be made between
the civil partners which relates to, arises out of, or is connected with, the
proceedings.
35
(2)
Rules of court may make provision for enabling—
(a)
the civil partners, or either of them, to refer the agreement or
arrangement to the court, and
(b)
the court—
(i)
to express an opinion, if it thinks it desirable to do so, as to the
40
reasonableness of the agreement or arrangement, and
(ii)
to give such directions, if any, in the matter as it thinks fit.

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings
20

Dissolution of civil partnership
44
Dissolution of civil partnership which has broken down irretrievably
(1)
Subject to section 41, an application for a dissolution order may be made to the
court by either civil partner on the ground that the civil partnership has broken
down irretrievably.
5
(2)
On an application for a dissolution order the court must inquire, so far as it
reasonably can, into—
(a)
the facts alleged by the applicant, and
(b)
any facts alleged by the respondent.
(3)
The court hearing an application for a dissolution order must not hold that the
10
civil partnership has broken down irretrievably unless the applicant satisfies
the court of one or more of the facts described in subsection (5)(a), (b), (c) or (d).
(4)
But if the court is satisfied of any of those facts, it must make a dissolution
order unless it is satisfied on all the evidence that the civil partnership has not
broken down irretrievably.
15
(5)
The facts referred to in subsections (3) and (4) are—
(a)
that the respondent has behaved in such a way that the applicant
cannot reasonably be expected to live with the respondent;
(b)
that—
(i)
the applicant and the respondent have lived apart for a
20
continuous period of at least 2 years immediately preceding the
making of the application (“2 years’ separation”), and
(ii)
the respondent consents to a dissolution order being made;
(c)
that the applicant and the respondent have lived apart for a continuous
period of at least 5 years immediately preceding the making of the
25
application (“5 years’ separation”);
(d)
that the respondent has deserted the applicant for a continuous period
of at least 2 years immediately preceding the making of the application.
45
Supplemental provisions as to facts raising presumption of breakdown
(1)
Subsection (2) applies if—
30
(a)
in any proceedings for a dissolution order the applicant alleges, in
reliance on section 44(5)(a), that the respondent has behaved in such a
way that the applicant cannot reasonably be expected to live with the
respondent, but
(b)
after the date of the occurrence of the final incident relied on by the
35
applicant and held by the court to support his allegation, the applicant
and the respondent have lived together for a period (or periods) which
does not, or which taken together do not, exceed 6 months.
(2)
The fact that the applicant and respondent have lived together as mentioned in
subsection (1)(b) must be disregarded in determining, for the purposes of
40
section 44(5)(a), whether the applicant cannot reasonably be expected to live
with the respondent.
(3)
Subsection (4) applies in relation to cases where the applicant alleges, in
reliance on section 44(5)(b), that the respondent consents to a dissolution order
being made.
45

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings
21

(4)
Rules of court must make provision for the purpose of ensuring that the
respondent has been given such information as will enable him to
understand—
(a)
the consequences to him of consenting to the making of the order, and
(b)
the steps which he must take to indicate his consent.
5
(5)
For the purposes of section 44(5)(d) the court may treat a period of desertion as
having continued at a time when the deserting civil partner was incapable of
continuing the necessary intention, if the evidence before the court is such that,
had he not been so incapable, the court would have inferred that the desertion
continued at that time.
10
(6)
In considering for the purposes of section 44(5) whether the period for which
the civil partners have lived apart or the period for which the respondent has
deserted the applicant has been continuous, no account is to be taken of—
(a)
any one period not exceeding 6 months, or
(b)
any two or more periods not exceeding 6 months in all,
15

during which the civil partners resumed living with each other.
(7)
But no period during which the civil partners have lived with each other
counts as part of the period during which the civil partners have lived apart or
as part of the period of desertion.
(8)
For the purposes of section 44(5)(b) and (c) and this section civil partners are to
20
be treated as living apart unless they are living with each other in the same
household, and references in this section to civil partners living with each other
are to be read as references to their living with each other in the same
household.
46
Dissolution order not precluded by previous separation order etc.
25
(1)
Subsections (2) and (3) apply if any of the following orders has been made in
relation to a civil partnership—
(a)
a separation order;
(b)
an order under Schedule 7 (financial relief in magistrates’ courts etc.);
(c)
an order under section 33 of the Family Law Act 1996 (c. 27)
30
(occupation orders);
(d)
an order under section 37 of the 1996 Act (orders where neither civil
partner entitled to occupy the home).
(2)
Nothing prevents—
(a)
either civil partner from applying for a dissolution order, or
35
(b)
the court from making a dissolution order,

on the same facts, or substantially the same facts, as those proved in support of
the making of the order referred to in subsection (1).
(3)
On the application for the dissolution order, the court—
(a)
may treat the order referred to in subsection (1) as sufficient proof of
40
any desertion or other fact by reference to which it was made, but
(b)
must not make the dissolution order without receiving evidence from
the applicant.
(4)
If—
(a)
the application for the dissolution order follows a separation order or
45
any order requiring the civil partners to live apart,

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings
22

(b)
there was a period of desertion immediately preceding the institution
of the proceedings for the separation order, and
(c)
the civil partners have not resumed living together and the separation
order has been continuously in force since it was made,

the period of desertion is to be treated for the purposes of the application for
5
the dissolution order as if it had immediately preceded the making of the
application.
(5)
For the purposes of section 44(5)(d) the court may treat as a period during
which the respondent has deserted the applicant any period during which
there is in force—
10
(a)
an injunction granted by the High Court or a county court which
excludes the respondent from the civil partnership home, or
(b)
an order under section 33 or 37 of the 1996 Act which prohibits the
respondent from occupying a dwelling-house in which the applicant
and the respondent have, or at any time have had, a civil partnership
15
home.
47
Refusal of dissolution in 5 year separation cases on grounds of grave hardship
(1)
The respondent to an application for a dissolution order in which the applicant
alleges 5 years’ separation may oppose the making of an order on the ground
that—
20
(a)
the dissolution of the civil partnership will result in grave financial or
other hardship to him, and
(b)
it would in all the circumstances be wrong to dissolve the civil
partnership.
(2)
Subsection (3) applies if—
25
(a)
the making of a dissolution order is opposed under this section,
(b)
the court finds that the applicant is entitled to rely in support of his
application on the fact of 5 years’ separation and makes no such finding
as to any other fact mentioned in section 44(5), and
(c)
apart from this section, the court would make a dissolution order.
30
(3)
The court must—
(a)
consider all the circumstances, including the conduct of the civil
partners and the interests of the civil partners and of any children or
other persons concerned, and
(b)
if it is of the opinion that the ground mentioned in subsection (1) is
35
made out, dismiss the application for the dissolution order.
(4)
“Hardship” includes the loss of the chance of acquiring any benefit which the
respondent might acquire if the civil partnership were not dissolved.
48
Proceedings before order made final: protection for respondent in separation
cases
40
(1)
The court may, on an application made by the respondent, rescind a
conditional dissolution order if—
(a)
it made the order on the basis of a finding that the applicant was
entitled to rely on the fact of 2 years’ separation coupled with the
respondent’s consent to a dissolution order being made,
45

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings
23

(b)
it made no such finding as to any other fact mentioned in section 44(5),
and
(c)
it is satisfied that the applicant misled the respondent (whether
intentionally or unintentionally) about any matter which the
respondent took into account in deciding to give his consent.
5
(2)
Subsections (3) to (5) apply if—
(a)
the respondent to an application for a dissolution order in which the
applicant alleged—
(i)
2 years’ separation coupled with the respondent’s consent to a
dissolution order being made, or
10
(ii)
5 years’ separation,

has applied to the court for consideration under subsection (3) of his
financial position after the dissolution of the civil partnership, and
(b)
the court—
(i)
has made a conditional dissolution order on the basis of a
15
finding that the applicant was entitled to rely in support of his
application on the fact of 2 years’ or 5 years’ separation, and
(ii)
has made no such finding as to any other fact mentioned in
section 44(5).
(3)
The court hearing an application by the respondent under subsection (2) must
20
consider all the circumstances, including—
(a)
the age, health, conduct, earning capacity, financial resources and
financial obligations of each of the parties, and
(b)
the financial position of the respondent as, having regard to the
dissolution, it is likely to be after the death of the applicant should the
25
applicant die first.
(4)
Subject to subsection (5), the court must not make the order final unless it is
satisfied that—
(a)
the applicant should not be required to make any financial provision
for the respondent, or
30
(b)
the financial provision made by the applicant for the respondent is—
(i)
reasonable and fair, or
(ii)
the best that can be made in the circumstances.
(5)
The court may if it thinks fit make the order final if—
(a)
it appears that there are circumstances making it desirable that the
35
order should be made final without delay, and
(b)
it has obtained a satisfactory undertaking from the applicant that he
will make such financial provision for the respondent as it may
approve.
Nullity
40
49
Grounds on which civil partnership is void
Where two people register as civil partners of each other in England and Wales,
the civil partnership is void if—
(a)
at the time when they do so, they are not eligible to register as civil
partners of each other under Chapter 1 (see section 4),
45
(b)
at the time when they do so they both know—

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings
24

(i)
that due notice of proposed civil partnership has not been
given,
(ii)
that the civil partnership document has not been duly issued,
(iii)
that the civil partnership document is void under section 18(3)
or 28(2) (registration after end of time allowed for registering),
5
(iv)
that the place of registration is a place other than that specified
in the notices (or notice) of proposed civil partnership and the
civil partnership document, or
(v)
that a civil partnership registrar is not present, or
(c)
the civil partnership document is void under paragraph 6(5) of
10
Schedule 3 (civil partnership between child and another person
forbidden).
50
Grounds on which civil partnership is voidable
(1)
Where two people register as civil partners of each other in England and Wales,
the civil partnership is voidable if—
15
(a)
either of them did not validly consent to its formation (whether as a
result of duress, mistake, unsoundness of mind or otherwise);
(b)
at the time of its formation either of them, though capable of giving a
valid consent, was suffering (whether continuously or intermittently)
from mental disorder of such a kind or to such an extent as to be
20
unfitted for civil partnership;
(c)
at the time of its formation, the respondent was pregnant by some
person other than the applicant;
(d)
an interim gender recognition certificate under the Gender Recognition
Act 2004 (c. 7) has, after the time of its formation, been issued to either
25
civil partner;
(e)
the respondent is a person whose gender at the time of its formation
had become the acquired gender under the 2004 Act.
(2)
In this section and section 51 “mental disorder” has the same meaning as in the
Mental Health Act 1983 (c. 20).
30
51
Bars to relief where civil partnership is voidable
(1)
The court must not make a nullity order on the ground that a civil partnership
is voidable if the respondent satisfies the court—
(a)
that the applicant, with knowledge that it was open to him to obtain a
nullity order, conducted himself in relation to the respondent in such a
35
way as to lead the respondent reasonably to believe that he would not
seek to do so, and
(b)
that it would be unjust to the respondent to make the order.
(2)
Without prejudice to subsection (1), the court must not make a nullity order by
virtue of section 50(1)(a), (b), (c) or (e) unless—
40
(a)
it is satisfied that proceedings were instituted within 3 years from the
date of the formation of the civil partnership, or
(b)
leave for the institution of proceedings after the end of that 3 year
period has been granted under subsection (3).
(3)
A judge of the court may, on an application made to him, grant leave for the
45
institution of proceedings if he—