Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
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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
29

60
The Attorney General and proceedings for declarations
(1)
On an application for a declaration under section 58 the court may at any stage
of the proceedings, of its own motion or on the application of any party to the
proceedings, direct that all necessary papers in the matter be sent to the
Attorney General.
5
(2)
The Attorney General, whether or not he is sent papers in relation to an
application for a declaration under section 58, may—
(a)
intervene in the proceedings on that application in such manner as he
thinks necessary or expedient, and
(b)
argue before the court dealing with the application any question in
10
relation to the application which the court considers it necessary to
have fully argued.
(3)
Where any costs are incurred by the Attorney General in connection with any
application for a declaration under section 58, the court may make such order
as it considers just as to the payment of those costs by parties to the
15
proceedings.
61
Supplementary provisions as to declarations
(1)
Any declaration made under section 58, and any application for such a
declaration, must be in the form prescribed by rules of court.
(2)
Rules of court may make provision—
20
(a)
as to the information required to be given by any applicant for a
declaration under section 58;
(b)
requiring notice of an application under section 58 to be served on the
Attorney General and on persons who may be affected by any
declaration applied for.
25
(3)
No proceedings under section 58 affect any final judgment or order already
pronounced or made by any court of competent jurisdiction.
(4)
The court hearing an application under section 58 may direct that the whole or
any part of the proceedings must be heard in private.
(5)
An application for a direction under subsection (4) must be heard in private
30
unless the court otherwise directs.
General provisions
62
Relief for respondent in dissolution proceedings
(1)
If in any proceedings for a dissolution order the respondent alleges and proves
any such fact as is mentioned in section 44(5)(a), (b), (c) or (d) the court may
35
give to the respondent the relief to which he would have been entitled if he had
made an application seeking that relief.
(2)
When applying subsection (1), treat—
(a)
the respondent as the applicant, and
(b)
the applicant as the respondent,
40

for the purposes of section 44(5).

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings
30

63
Restrictions on making of orders affecting children
(1)
In any proceedings for a dissolution, nullity or separation order, the court must
consider—
(a)
whether there are any children of the family to whom this section
applies, and
5
(b)
if there are any such children, whether (in the light of the arrangements
which have been, or are proposed to be, made for their upbringing and
welfare) it should exercise any of its powers under the Children Act
1989 (c. 41) with respect to any of them.
(2)
If, in the case of any child to whom this section applies, it appears to the court
10
that—
(a)
the circumstances of the case require it, or are likely to require it, to
exercise any of its powers under the 1989 Act with respect to any such
child,
(b)
it is not in a position to exercise the power or (as the case may be) those
15
powers without giving further consideration to the case, and
(c)
there are exceptional circumstances which make it desirable in the
interests of the child that the court should give a direction under this
section,

it may direct that the order is not to be made final, or (in the case of a separation
20
order) is not to be made, until the court orders otherwise.
(3)
This section applies to—
(a)
any child of the family who has not reached 16 at the date when the
court considers the case in accordance with the requirements of this
section, and
25
(b)
any child of the family who has reached 16 at that date and in relation
to whom the court directs that this section shall apply.
64
Parties to proceedings under this Chapter
(1)
Rules of court may make provision with respect to—
(a)
the joinder as parties to proceedings under sections 37 to 56 of persons
30
involved in allegations of improper conduct made in those
proceedings,
(b)
the dismissal from such proceedings of any parties so joined, and
(c)
the persons who are to be parties to proceedings on an application
under section 58.
35
(2)
Rules of court made under this section may make different provision for
different cases.
(3)
In every case in which the court considers, in the interest of a person not
already a party to the proceedings, that the person should be made a party, the
court may if it thinks fit allow the person to intervene upon such terms, if any,
40
as the court thinks just.

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 3 — Property and financial arrangements
31

Chapter 3
Property and financial arrangements
65
Contribution by civil partner to property improvement
(1)
This section applies if—
(a)
a civil partner contributes in money or money’s worth to the
5
improvement of real or personal property in which or in the proceeds
of sale of which either or both of the civil partners has or have a
beneficial interest, and
(b)
the contribution is of a substantial nature.
(2)
The contributing partner is to be treated as having acquired by virtue of the
10
contribution a share or an enlarged share (as the case may be) in the beneficial
interest of such an extent—
(a)
as may have been then agreed, or
(b)
in default of such agreement, as may seem in all the circumstances just
to any court before which the question of the existence or extent of the
15
beneficial interest of either of the civil partners arises (whether in
proceedings between them or in any other proceedings).
(3)
Subsection (2) is subject to any agreement (express or implied) between the
civil partners to the contrary.
66
Disputes between civil partners about property
20
(1)
In any question between the civil partners in a civil partnership as to title to or
possession of property, either civil partner may apply to—
(a)
the High Court, or
(b)
such county court as may be prescribed by rules of court.
(2)
On such an application, the court may make such order with respect to the
25
property as it thinks fit (including an order for the sale of the property).
(3)
Rules of court made for the purposes of this section may confer jurisdiction on
county courts whatever the situation or value of the property in dispute.
67
Applications under section 66 where property not in possession etc.
(1)
The right of a civil partner (“A”) to make an application under section 66
30
includes the right to make such an application where A claims that the other
civil partner (“B”) has had in his possession or under his control—
(a)
money to which, or to a share of which, A was beneficially entitled, or
(b)
property (other than money) to which, or to an interest in which, A was
beneficially entitled,
35

and that either the money or other property has ceased to be in B’s possession
or under B’s control or that A does not know whether it is still in B’s possession
or under B’s control.
(2)
For the purposes of subsection (1)(a) it does not matter whether A is
beneficially entitled to the money or share—
40
(a)
because it represents the proceeds of property to which, or to an interest
in which, A was beneficially entitled, or

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 3 — Property and financial arrangements
32

(b)
for any other reason.
(3)
Subsections (4) and (5) apply if, on such an application being made, the court
is satisfied that B—
(a)
has had in his possession or under his control money or other property
as mentioned in subsection (1)(a) or (b), and
5
(b)
has not made to A, in respect of that money or other property, such
payment or disposition as would have been appropriate in the
circumstances.
(4)
The power of the court to make orders under section 66 includes power to
order B to pay to A—
10
(a)
in a case falling within subsection (1)(a), such sum in respect of the
money to which the application relates, or A’s s share of it, as the court
considers appropriate, or
(b)
in a case falling within subsection (1)(b), such sum in respect of the
value of the property to which the application relates, or A’s interest in
15
it, as the court considers appropriate.
(5)
If it appears to the court that there is any property which—
(a)
represents the whole or part of the money or property, and
(b)
is property in respect of which an order could (apart from this section)
have been made under section 66,
20

the court may (either instead of or as well as making an order in accordance
with subsection (4)) make any order which it could (apart from this section)
have made under section 66.
(6)
Any power of the court which is exercisable on an application under section 66
is exercisable in relation to an application made under that section as extended
25
by this section.
68
Actions in tort between civil partners
(1)
This section applies if an action in tort is brought by one civil partner against
the other during the subsistence of the civil partnership.
(2)
The court may stay the proceedings if it appears—
30
(a)
that no substantial benefit would accrue to either civil partner from the
continuation of the proceedings, or
(b)
that the question or questions in issue could more conveniently be
disposed of on an application under section 66.
(3)
Without prejudice to subsection (2)(b), the court may in such an action—
35
(a)
exercise any power which could be exercised on an application under
section 66, or
(b)
give such directions as it thinks fit for the disposal under that section of
any question arising in the proceedings.
69
Assurance policy by civil partner for benefit of other civil partner etc.
40
Section 11 of the Married Women’s Property Act 1882 (c. 75) (money payable
under policy of assurance not to form part of the estate of the insured) applies
in relation to a policy of assurance—
(a)
effected by a civil partner on his own life, and

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 4 — Civil partnership agreements
33

(b)
expressed to be for the benefit of his civil partner, or of his children, or
of his civil partner and children, or any of them,
as it applies in relation to a policy of assurance effected by a husband and
expressed to be for the benefit of his wife, or of his children, or of his wife and
children, or of any of them.
5
70
Wills, administration of estates and family provision
Schedule 5 amends enactments relating to wills, administration of estates and
family provision so that they apply in relation to civil partnerships as they
apply in relation to marriage.
71
Financial relief for civil partners and children of family
10
(1)
Schedule 6 makes provision for financial relief in connection with civil
partnerships that corresponds to provision made for financial relief in
connection with marriages by Part 2 of the Matrimonial Causes Act 1973 (c. 18).
(2)
Any rule of law under which any provision of Part 2 of the 1973 Act is
interpreted as applying to dissolution of a marriage on the ground of
15
presumed death is to be treated as applying (with any necessary modifications)
in relation to the corresponding provision of Schedule 6.
(3)
Schedule 7 makes provision for financial relief in connection with civil
partnerships that corresponds to provision made for financial relief in
connection with marriages by the Domestic Proceedings and Magistrates’
20
Courts Act 1978 (c. 22).
(4)
Schedule 8 makes provision for financial relief in England and Wales after a
civil partnership has been dissolved or annulled, or civil partners have been
legally separated, in a country outside the British Islands.
Chapter 4
25
Civil partnership agreements
72
Civil partnership agreements unenforceable
(1)
A civil partnership agreement does not under the law of England and Wales
have effect as a contract giving rise to legal rights.
(2)
No action lies in England and Wales for breach of a civil partnership
30
agreement, whatever the law applicable to the agreement.
(3)
In this section and section 73 “civil partnership agreement” means an
agreement between two people—
(a)
to register as civil partners of each other—
(i)
in England and Wales (under Part 2),
35
(ii)
in Scotland (under Part 3),
(iii)
in Northern Ireland (under Part 4), or
(iv)
outside the United Kingdom under an Order in Council made
under Chapter 1 of Part 5 (registration at British consulates etc.
or by armed forces personnel), or
40
(b)
to enter into an overseas relationship.

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 5 — Children
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(4)
This section applies in relation to civil partnership agreements whether
entered into before or after this section comes into force, but does not affect any
action commenced before it comes into force.
73
Property where civil partnership agreement is terminated
(1)
This section applies if a civil partnership agreement is terminated.
5
(2)
Section 65 (contributions by civil partner to property improvement) applies, in
relation to any property in which either or both of the parties to the agreement
had a beneficial interest while the agreement was in force, as it applies in
relation to property in which a civil partner has a beneficial interest.
(3)
Sections 66 and 67 (disputes between civil partners about property) apply to
10
any dispute between or claim by one of the parties in relation to property in
which either or both had a beneficial interest while the agreement was in force,
as if the parties were civil partners of each other.
(4)
An application made under section 66 or 67 by virtue of subsection (3) must be
made within 3 years of the termination of the agreement.
15
(5)
A party to a civil partnership agreement who makes a gift of property to the
other party on the condition (express or implied) that it is to be returned if the
agreement is terminated is not prevented from recovering the property merely
because of his having terminated the agreement.
Chapter 5
20
Children
74
Parental responsibility, children of the family and relatives
(1)
Amend the Children Act 1989 (c. 41) (“the 1989 Act”) as follows.
(2)
In section 4A(1) (acquisition of parental responsibility by step-parent) after “is
married to” insert “, or a civil partner of,”.
25
(3)
In section 105(1) (interpretation), for the definition of “child of the family” (in
relation to the parties to a marriage) substitute—

““child of the family”, in relation to parties to a marriage, or to two people
who are civil partners of each other, means—
(a)
a child of both of them, and
30
(b)
any other child, other than a child placed with them as foster
parents by a local authority or voluntary organisation, who
has been treated by both of them as a child of their family.”
(4)
In the definition of “relative” in section 105(1), for “by affinity)” substitute “by
marriage or civil partnership)”.
35
75
Guardianship
In section 6 of the 1989 Act (guardians: revocation and disclaimer) after

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 5 — Children
35

subsection (3A) insert—
“(3B)
An appointment under section 5(3) or (4) (including one made in an
unrevoked will or codicil) is revoked if the person appointed is the civil
partner of the person who made the appointment and either—
(a)
an order of a court of civil jurisdiction in England and Wales
5
dissolves or annuls the civil partnership, or
(b)
the civil partnership is dissolved or annulled and the
dissolution or annulment is entitled to recognition in England
and Wales by virtue of Chapter 3 of Part 5 of the Civil
Partnership Act 2004,
10

unless a contrary intention appears by the appointment.”
76
Entitlement to apply for residence or contact order
In section 10(5) of the 1989 Act (persons entitled to apply for residence or
contact order) after paragraph (a) insert—
“(aa)
any civil partner in a civil partnership (whether or not
15
subsisting) in relation to whom the child is a child of the
family;”.
77
Financial provision for children
(1)
Amend Schedule 1 to the 1989 Act (financial provision for children) as follows.
(2)
In paragraph 2(6) (meaning of “periodical payments order”) after paragraph
20
(d) insert—
“(e)
Part 1 or 8 of Schedule 6 to the Civil Partnership Act 2004
(financial relief in the High Court or a county court etc.);
(f)
Schedule 7 to the 2004 Act (financial relief in the magistrates’
courts etc.),”.
25
(3)
In paragraph 15(2) (person with whom a child lives or is to live) after “husband
or wife” insert “or civil partner”.
(4)
For paragraph 16(2) (extended meaning of “parent”) substitute—
“(2)
In this Schedule, except paragraphs 2 and 15, “parent” includes—
(a)
any party to a marriage (whether or not subsisting) in relation
30
to whom the child concerned is a child of the family, and
(b)
any civil partner in a civil partnership (whether or not
subsisting) in relation to whom the child concerned is a child
of the family;

and for this purpose any reference to either parent or both parents
35
shall be read as a reference to any parent of his and to all of his
parents.”
78
Adoption
(1)
Amend the Adoption and Children Act 2002 (c. 38) as follows.
(2)
In section 47 (conditions for making adoption orders), after subsection (8)
40
insert—
“(8A)
An adoption order may not be made in relation to a person who is or
has been a civil partner.”