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]
Schedule 28 — Consequential amendments: Scotland
Part 2 — Amendments of the Family Law (Scotland) Act 1985 (c. 37)
370

(a)
in paragraph (a), for “parties” substitute “persons” and at the end
insert “or partnership property”,
(b)
in paragraph (b), after “property” insert “or partnership property”,
for “parties” substitute “persons” and at the end insert “or
partnership”,
5
(c)
in paragraph (c), for “party” substitute “person”,
(d)
in paragraph (d), after “property” insert “or partnership property”
and for “matrimonial” substitute “family”, and
(e)
in paragraph (e), at the end insert “or the dissolution of the civil
partnership”.
10
      (8)
In subsection (7), for “parties” (in both places) substitute “persons”.
15    (1)
Amend section 11 (factors to be taken into account) as follows.
      (2)
In subsection (2)—
(a)
in paragraph (a), for “party” (in both places) substitute “person”, and
(b)
in paragraph (b), after “property” insert “or the partnership
15
property”.
      (3)
In subsection (3)(g), for “parties” substitute “persons”.
      (4)
In subsection (4)—
(a)
in each of paragraphs (a) and (c), for “party” substitute “person”,
(b)
in paragraph (b), for “party prior to divorce” substitute “person prior
20
to divorce or to the dissolution of the civil partnership”, and
(c)
in paragraph (d), for “parties” substitute “persons”.
      (5)
In subsection (5)—
(a)
in paragraph (a), for “party” substitute “person”,
(b)
in paragraph (b), at the end insert “or of the civil partnership”,
25
(c)
in paragraph (c), for “parties during the marriage” substitute
“persons during the marriage or civil partnership”, and
(d)
in paragraph (d), for “parties” substitute “persons”.
      (6)
In subsection (6), for “party” substitute “person”.
      (7)
In subsection (7), after “party” insert “to the marriage or as the case may be
30
of either partner”.
16    (1)
Amend section 12 (orders for payment of capital sum or transfer of property)
as follows.
      (2)
In subsection (1)—
(a)
in paragraph (a), at the end insert “or of dissolution of a civil
35
partnership”, and
(b)
in paragraph (b), for “decree of divorce” substitute “the decree”.
      (3)
In subsection (4), the existing words “either party to the marriage” become
paragraph (a) and after that paragraph insert the following paragraph—
“(b)
either partner,”.
40
17    (1)
Amend section 12A (orders for payment of capital sum: pensions lump
sums) as follows.
      (2)
In subsection (1)—
(a)
for “(“the liable party”)” substitute “or a partner in a civil partnership
(“the liable person”)”, and
45
(b)
in paragraph (a), after “property” insert “or the partnership
property” and for “party” substitute “person”.

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 2 — Amendments of the Family Law (Scotland) Act 1985 (c. 37)
371

      (3)
In subsection (2), for “(“the other party”)” substitute “or as the case may be
to the other partner (“the other person”)”.
      (4)
In each of subsections (3) to (8), for “party”, wherever it occurs, substitute
“person”.
18    (1)
Amend section 13 (orders for periodical allowance) as follows.
5
      (2)
In subsection (1)—
(a)
in paragraph (a), at the end insert “or of dissolution of a civil
partnership”,
(b)
in paragraph (b), for “decree of divorce” substitute “the decree”, and
(c)
in paragraph (c), for “decree of divorce” substitute “such decree”.
10
      (3)
In subsection (4), after “executor” insert “, or as the case may be either
partner or his executor,”.
      (4)
in subsection (7)—
(a)
in paragraph (a), for “party” substitute “person” and for “party’s”
substitute “person’s”, and
15
(b)
for paragraph (b) substitute—
“(b)
shall cease to have effect on the person receiving
payment—
(i)
marrying,
(ii)
entering into a civil partnership, or
20
(iii)
dying,

except in relation to any arrears due under it.”.
19    (1)
Amend section 14 (incidental orders) as follows.
      (2)
In subsection (1), at the end insert “or of dissolution of a civil partnership”.
      (3)
In subsection (2)—
25
(a)
in paragraph (c), after “marriage” insert “, or as the case may be the
partners,”,
(b)
in paragraph (d), the existing words “the matrimonial home” become
sub-paragraph (i), after that sub-paragraph insert “or” and the
following sub-paragraph—
30
“(ii)
the family home of the partnership,”,

and for “party to the marriage” substitute “person”,
(c)
in paragraph (e), for “parties” substitute “persons”, the existing
words “the matrimonial home” become sub-paragraph (i) and after
that sub-paragraph insert “or” and the following sub-paragraph—
35
“(ii)
the family home of the partnership,”,
(d)
in paragraph (g), for “party to the marriage” substitute “person”, and
(e)
in paragraph (h), at the end insert “or in any corresponding
settlement in respect of the civil partnership”.
      (4)
In subsection (3), for “decree of divorce” substitute “the decree”.
40
      (5)
After subsection (5) insert—
“(5A)
So long as an incidental order granting a partner in a civil
partnership the right to occupy a family home or the right to use
furnishings and plenishings therein remains in force then—
(a)
section 100(1), (2), (5)(a) and (9) of the Civil Partnership Act
45
2004, and
(b)
subject to section 15(3) of this Act, section 109 of that Act,

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 2 — Amendments of the Family Law (Scotland) Act 1985 (c. 37)
372


shall, except to the extent that the order otherwise provides, apply in
relation to the order in accordance with subsection (5B).
(5B)
Those provisions apply—
(a)
as if that partner were a non-entitled partner and the other
partner were an entitled partner within the meaning of
5
section 99 or 104(2) of that Act as the case may require,
(b)
as if the right to occupy a family home under that order were
a right specified in paragraph (a) or (b) of section 99(1) of that
Act, and
(c)
with any other necessary modification.”
10
      (6)
In subsection (7), at the end insert “or of dissolution of a civil partnership”.
20    (1)
Amend section 16 (agreements on financial provision) as follows.
      (2)
In subsection (1)—
(a)
after “marriage” insert “or the partners in a civil partnership”, and
(b)
after “divorce” insert “or on dissolution of the civil partnership”.
15
      (3)
In subsection (3)—
(a)
after “marriage” insert “or the partners in a civil partnership”,
(b)
after first “divorce” insert “or on dissolution of the civil partnership”,
(c)
in paragraphs (a) to (c), for “party” and “party’s” (in each place)
substitute, respectively, “person” and “person’s”, and
20
(d)
after second “divorce” insert “or of dissolution of the civil
partnership”.
21    (1)
Amend section 17 (financial provision on declarator of nullity of marriage)
as follows.
      (2)
In subsection (1)—
25
(a)
after first “marriage” insert “or of a civil partnership”,
(b)
after first “divorce” insert “or for dissolution of a civil partnership”,
(c)
after second “marriage” insert “and “action for dissolution of a civil
partnership” includes an action for declarator of nullity of a civil
partnership”, and
30
(d)
for “and “divorce”” substitute “, “divorce” and “dissolution of a civil
partnership””.
      (3)
In subsection (2)—
(a)
after first “marriage” insert “or of nullity of a civil partnership”, and
(b)
at the end insert “or civil partnership”.
35
22
In section 18(1) (orders relating to avoidance transactions), for “party” (in
both places) substitute “person”.
23
In section 21 (award of aliment or custody where divorce or separation
refused)—
(a)
for “or separation” substitute “, separation or dissolution of a civil
40
partnership”, and
(b)
for “parties” substitute “persons”.
24    (1)
In section 22 (expenses of action)—
(a)
for “party to a marriage” substitute “person”,
(b)
for paragraph (a) substitute—
45
“(a)
an action for aliment brought—

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 2 — Amendments of the Family Law (Scotland) Act 1985 (c. 37)
373

(i)
by either party to a marriage, or
(ii)
by either party in a civil partnership,

on his own behalf against the other party or partner,”,
(c)
in paragraph (b), after “separation” insert “(whether of the parties to
a marriage or the civil partners in a civil partnership)”,
5
(d)
after paragraph (b) insert—
“(bb)
an action for dissolution of a civil partnership,
declarator that a civil partnership exists or declarator
of nullity of a civil partnership,”, and
(e)
after fifth “marriage” insert “or the other partner in the civil
10
partnership”.
25
In section 24(1) (marriage not to affect property rights or legal capacity)—
(a)
after fifth “marriage” insert “or civil partnership”,
(b)
in paragraph (a), after “marriage” insert “, or as the case may be the
partners in the civil partnership,”, and
15
(c)
in paragraph (b), for “the parties to the marriage” substitute “those
parties or partners”.
26    (1)
Amend section 25 (presumption of equal shares in household goods) as
follows.
      (2)
In subsection (1)—
20
(a)
after first and third “marriage” insert “or civil partnership”, and
(b)
after second “marriage” insert “or the partners in a civil partnership”,
      (3)
In subsection (2), the existing words “the parties were married” become
paragraph (a) and after that paragraph insert—
“(b)
the partners were in civil partnership,”, and
25
      (4)
In subsection (3)—
(a)
for “in any matrimonial” substitute “or civil partnership in any
family”, and
(b)
after second “marriage” insert “or the partners”.
27
In section 26 (presumption of equal shares in money and property derived
30
from housekeeping allowance)—
(a)
after first “marriage” insert “or civil partnership”,
(b)
after second “marriage” insert “or as the case may be of a partner in
a civil partnership”, and
(c)
after second and third “party” insert “or partner”.
35
28
In section 27(1) (interpretation)—
(a)
at the appropriate places insert—

““civil partnership”, in relation to an action for declarator of
nullity of a civil partnership, means purported civil
partnership,”,
40

““partner”, in relation to a civil partnership, includes a person
who has a partner in a civil partnership which has been
terminated and an ostensible partner in a civil partnership
which has been annulled,”, and
(b)
in the definition of “family”, at the end insert “and in relation to a
45
civil partnership means the members of the civil partnership
together with any child accepted by them both as a child of the
family.”

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 3 — Amendments of the Bankruptcy (Scotland) Act 1985 (c. 66)
374

Part 3
Amendments of the Bankruptcy (Scotland) Act 1985 (c. 66)
29
In section 20(4) (powers of interim trustee in relation to obtaining
information as to debtor’s assets)—
(a)
in paragraph (b), after “spouse” insert “or civil partner”, and
5
(b)
after “debtor, spouse” insert “, civil partner”.
30
In section 32(3)(b) (the expression “relevant obligations”), at the end insert
“or former civil partner”.
31    (1)
Amend section 40 (power of permanent trustee in relation to debtor’s family
home) as follows.
10
      (2)
In subsection (2), after paragraph (a) insert—
“(aa)
the needs and financial resources of the debtor’s civil partner
or former civil partner;”.
      (3)
In subsection (4)—
(a)
in paragraph (a), after “spouse” (in each place) insert “or civil
15
partner”,
(b)
in paragraph (b), after “spouse” (in each place) insert “or civil
partner”, and
(c)
in paragraph (c)(i), after “spouse” (in each place) insert “or civil
partner”.
20
32
After section 41 insert—
“41A
Protection of rights of civil partner against arrangements intended to
defeat them
(1)
If a debtor’s sequestrated estate includes a family home of which the
debtor, immediately before the date of issue of the act and warrant of
25
the permanent trustee (or, if more than one such act and warrant is
issued in the sequestration, of the first such issue) was an entitled
partner and the other partner in the civil partnership is a non-entitled
partner—
(a)
the permanent trustee shall, where he—
30
(i)
is aware that the entitled partner is in civil
partnership with the non-entitled partner; and
(ii)
knows where the non-entitled partner is residing,

inform the non-entitled partner, within the period of 14 days
beginning with that date, of the fact that sequestration of the
35
entitled partner’s estate has been awarded, of the right of
petition which exists under section 16 of this Act and of the
effect of paragraph (b) below; and
(b)
the Court of Session, on the petition under section 16 of this
Act of the non-entitled partner presented either within the
40
period of 40 days beginning with that date or within the
period of 10 weeks beginning with the date of sequestration
may—
(i)
under section 17 of this Act recall the sequestration; or
(ii)
make such order as it thinks appropriate to protect
45
the occupancy rights of the non-entitled partner,

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 4 — Miscellaneous amendments
375


if it is satisfied that the purpose of the petition for
sequestration was wholly or mainly to defeat the occupancy
rights of the non-entitled partner.
(2)
In subsection (1) above—

“entitled partner” and “non-entitled partner” have the same
5
meanings as in section 99 of the Civil Partnership Act 2004;

“family home” has the meaning assigned by section 131 of the
2004 Act; and

“occupancy rights” means the rights conferred by subsection (1)
of that section 99.”
10
33
In section 44(1)(b) (request for order requiring private examination of certain
persons before sheriff)—
(a)
after “debtor’s spouse” insert “or civil partner”, and
(b)
after “such spouse” insert “, civil partner”.
34
In section 74 (interpretation), in each of subsections (2) and (4), for “husband
15
or wife” (in each place) substitute “husband, wife or civil partner”.
Part 4
Miscellaneous amendments
Damages (Scotland) Act 1976 (c. 13)
35    (1)
In Schedule 1 (definition of “relative”), amend paragraph 1 as follows.
20
      (2)
In sub-paragraph (a)—
(a)
after “spouse” (in both places) insert “or civil partner”, and
(b)
at the end insert “or in a relationship which had the characteristics of
the relationship between civil partners”.
      (3)
After sub-paragraph (e), omit “and”.
25
      (4)
After sub-paragraph (f), insert “and
(g)
any person who, having been a civil partner of the deceased,
had ceased to be so by virtue of the dissolution of the civil
partnership”.
Marriage (Scotland) Act 1977 (c. 15)
30
36
Amend section 3 (notice of intention to marry) as follows—
(a)
in subsection (1), after paragraph (a) insert—
“(aa)
if he has previously been in civil partnership and the
civil partnership has been dissolved, a copy of the
decree of dissolution or annulment;”, and
35
(b)
in subsection (2), after “paragraph (a)” insert “, (aa)”.
37
In section 5(4)(b) (ground on which there is a legal impediment to a
marriage), at the end insert “or in civil partnership”.
Presumption of Death (Scotland) Act 1977 (c. 27)
38    (1)
Amend section 1(3) (jurisdiction of Court of Session to entertain action of
40

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 4 — Miscellaneous amendments
376

declarator) as follows.
      (2)
In paragraph (b)(i), after “spouse” insert “or civil partner”.
      (3)
After paragraph (b) insert “; or
“(c)
in a case where the pursuer in the action is the civil partner of
the missing person, the following conditions are met—
5
(i)
the two people concerned registered as civil partners
of each other in Scotland; and
(ii)
it appears to the court to be in the interests of justice
to assume jurisdiction in the case.”
39    (1)
Amend section 3 (effect of decree) as follows.
10
      (2)
In subsection (1), after “marriage” insert “or of a civil partnership”.
      (3)
In subsection (3)—
(a)
after first “marriage” insert “or civil partnership”, and
(b)
for “the dissolution of the marriage” substitute “its dissolution”.
Administration of Justice Act 1982 (c. 53)
15
40
In section 13(1) (interpretation), in the definition of “relative”, after
paragraph (a) insert—
“(aa)
the civil partner or former civil partner;”.
Rent (Scotland) Act 1984 (c. 58)
41
In Schedule 1 (statutory tenants by succession)—
20
(a)
in paragraph 2, after “spouse” (in both places) insert “or civil
partner” and after “spouse’s” insert “or civil partner’s”, and
(b)
in paragraph 6, after “spouse” (in both places) insert “or civil
partner”.
42
In Schedule 1A (statutory or statutory assured tenants by succession: certain
25
cases), in paragraph 2—
(a)
in sub-paragraph (1), after “spouse” (in both places) insert “or civil
partner” and after “spouse’s” insert “or civil partner’s”,
(b)
in sub-paragraph (2), at the end insert “and a person who was living
with the original tenant in a relationship which had the
30
characteristics of the relationship between civil partners shall be
treated as the civil partner of the original tenant”, and
(c)
in sub-paragraph (3), after “couples)” insert “or under section 99 of
the Civil Partnership Act 2004” and after “spouse” insert “, or as the
case may be as the surviving civil partner,”.
35
Mental Health (Scotland) Act 1984 (c. 36)
43    (1)
Amend section 53 (definition of “relative” and “nearest relative”) as follows.
      (2)
In subsection (1)(a), at the end insert “or civil partner”.
      (3)
In subsection (4)—
(a)
in paragraph (b), for “or wife” substitute “, wife or civil partner” and
40
after “spouse” insert “or civil partner”, and
(b)
in paragraph (c), after “wife,” insert “civil partner,”.