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 3 — Civil partnership: Scotland
Chapter 4 — Interdicts
56


“agricultural holding” has the same meaning as in section 1 of the
Agricultural Holdings (Scotland) Act 1991 (c. 55),

“cottar” has the same meaning as in section 12(5) of the Crofters (Scotland)
Act 1993 (c. 44),

“croft” has the same meaning as in that Act of 1993,
5

“holding”, in relation to a landholder and a statutory small tenant,
“landholder” and “statutory small tenant” have the same meanings
respectively as in sections 2(1), 2(2) and 32(1) of the Small Landholders
(Scotland) Act 1911 (c. 49),

“long lease” has the same meaning as in section 28(1) of the Land
10
Registration (Scotland) Act 1979 (c. 33), and

“tenant-at-will” has the same meaning as in section 20(8) of that Act of
1979.
(10)
Where both civil partners are joint or common tenants of a family home, the
court may, on the application of one of the civil partners, make an order vesting
15
the tenancy in that civil partner solely and providing, subject to subsection (12),
for the payment by the applicant to the other partner of such compensation as
seems just and reasonable in the circumstances of the case.
(11)
Subsections (2) to (9) apply for the purposes of an order under subsection (10)
as they apply for the purposes of an order under subsection (1) but subject to
20
the following modifications—
(a)
in subsection (3), for “tenant” there is substituted “sole tenant”;
(b)
in subsection (4), for “non-entitled” there is substituted “applicant”;
(c)
in subsection (5), for “non-entitled” there is substituted “applicant”,
(d)
in subsection (6), for “liability of the original entitled partner” there is
25
substituted “joint and several liability of both partners”;
(e)
in subsection (8)—
(i)
for “a non-entitled” there is substituted “an applicant”,
(ii)
for paragraph (a) there is substituted—
“(a)
is let to both partners by their employer as an
30
incident of employment, and the lease is subject
to a requirement that both partners must reside
there;”, and
(iii)
paragraphs (c) and (e) are omitted.
(12)
Where the family home is a Scottish secure tenancy within the meaning of the
35
Housing (Scotland) Act 2001 (asp 10), no account is to be taken, in assessing the
amount of any compensation to be awarded under subsection (1) or (10), of the
loss, by virtue of the transfer of the tenancy of the home, of a right to purchase
the home under Part 3 of the Housing (Scotland) Act 1987 (c. 26).
Chapter 4
40
Interdicts
111
Civil partners: competency of interdict
(1)
It shall not be incompetent for the Court of Session or the sheriff to entertain an
application by one civil partner in a civil partnership for a relevant interdict by
reason only that the civil partners are living together in civil partnership.
45

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 4 — Interdicts
57

(2)
In subsection (1) and in section 112, “relevant interdict” means an interdict,
including an interim interdict, which—
(a)
restrains or prohibits any conduct of one civil partner towards the other
civil partner or a child of the family, or
(b)
prohibits a civil partner from entering or remaining in a family home or
5
in a specified area in the vicinity of a family home.
112
Attachment of powers of arrest to relevant interdicts
(1)
Subject to subsection (2), the court is, on the application of an applicant civil
partner, to attach a power of arrest—
(a)
to any relevant interdict which is ancillary to an exclusion order
10
(including an interim order under section 102(6));
(b)
to any other relevant interdict where the non-applicant civil partner has
had the opportunity of being heard by or represented before the court,
unless it appears to the court that in all the circumstances of the case
such a power is unnecessary.
15
(2)
The court may attach a power of arrest to an interdict by virtue of subsection
(1) only if satisfied that attaching the power would not result in the non-
applicant civil partner being subject, in relation to the interdict, to a power of
arrest under both this Chapter and the Protection from Abuse (Scotland) Act
2001 (asp 14).
20
(3)
A power of arrest attached to an interdict by virtue of subsection (1) does not
have effect until such interdict together with the attached power of arrest is
served on the non-applicant civil partner; and such a power of arrest, unless
previously recalled, ceases to have effect upon the dissolution of the civil
partnership.
25
(4)
If, by virtue of subsection (1), a power of arrest is attached to an interdict, a
constable may arrest without warrant the non-applicant civil partner if the
constable has reasonable cause for suspecting that civil partner of being in
breach of the interdict.
(5)
If, by virtue of subsection (1), a power of arrest is attached to an interdict, the
30
applicant civil partner is, as soon as possible after service of the interdict, to
ensure that there is delivered—
(a)
to the chief constable of the police area in which the family home is
situated, and
(b)
if the applicant civil partner resides in another police area, to the chief
35
constable of that other police area,

a copy of the application for the interdict and of the interlocutor granting the
interdict together with a certificate of service of the interdict and, where the
application to attach the power of arrest to the interdict was made after the
interdict was granted, a copy of that application and of the interlocutor
40
granting it and a certificate of service of the interdict together with the attached
power of arrest.
(6)
Where any relevant interdict to which, by virtue of subsection (1), there is
attached a power of arrest, is varied or recalled, the civil partner who applied
for the variation or recall is to ensure that there is delivered—
45
(a)
to the chief constable of the police area in which the family home is
situated, and

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 4 — Interdicts
58

(b)
if the applicant civil partner resides in another police area, to the chief
constable of that other police area,

a copy of the application for variation or recall and of the interlocutor granting
the variation or recall.
(7)
In this section and in sections 113 and 114—
5

“applicant civil partner” means the civil partner who has applied for the
interdict, and

“non-applicant civil partner” is to be construed accordingly.
113
Police powers after arrest
(1)
Where a person has been arrested under section 112(4), the officer in charge of
10
a police station may—
(a)
if satisfied that there is no likelihood of violence to the applicant civil
partner or any child of the family, liberate that person unconditionally,
or
(b)
refuse to liberate that person.
15
(2)
For such refusal and the detention of that person until appearance in court by
virtue of section 114(2) or of any provision of the Criminal Procedure
(Scotland) Act 1975 (c. 21) the officer is not to be subjected to any claim
whatsoever.
(3)
Where a person arrested under section 112(4) is liberated under subsection (1),
20
the facts and circumstances which gave rise to the arrest are to be reported
forthwith to the procurator fiscal who, if he decides to take no criminal
proceedings in respect of those facts and circumstances, is at the earliest
opportunity to take all reasonable steps to intimate his decision to the persons
mentioned in paragraphs (a) and (b) of section 114(5).
25
114
Procedure after arrest
(1)
The provisions of this section apply only where—
(a)
the non-applicant civil partner has not been liberated under section
113(1), and
(b)
the procurator fiscal decides that no criminal proceedings are to be
30
taken in respect of the facts and circumstances which gave rise to the
arrest.
(2)
The non-applicant civil partner who has been arrested under section 112(4) is
wherever practicable to be brought before the sheriff sitting as a court of
summary criminal jurisdiction for the district in which that civil partner was
35
arrested not later than in the course of the first day after the arrest, such day
not being a Saturday, a Sunday or a court holiday prescribed for that court
under section 8 of the Criminal Procedure (Scotland) Act 1995 (c. 46).
(3)
Nothing in subsection (2) prevents the non-applicant civil partner being
brought before the sheriff on a Saturday, a Sunday or such a court holiday
40
when the sheriff is, in pursuance of that section of that Act, sitting for the
disposal of criminal business.
(4)
Subsections (1) to (3) of section 15 of that Act (intimation to a named person)
apply to a non-applicant civil partner who has been arrested under section
112(4) as they apply to a person who has been arrested in respect of any
45
offence.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 5 — Dissolution, separation and nullity
59

(5)
The procurator fiscal is at the earliest opportunity, and in any event prior to the
non-applicant civil partner being brought before the sheriff under subsection
(2), to take all reasonable steps to intimate—
(a)
to the applicant civil partner, and
(b)
to the solicitor who acted for that civil partner when the interdict was
5
granted or to any other solicitor who the procurator fiscal has reason to
believe acts for the time being for that civil partner,
that the criminal proceedings referred to in subsection (1) will not be taken.
(6)
On the non-applicant civil partner being brought before the sheriff under
subsection (2) (as read with subsection (3)), the following procedures apply—
10
(a)
the procurator fiscal is to present to the court a petition containing—
(i)
a statement of the particulars of the non-applicant civil partner,
(ii)
a statement of the facts and circumstances which gave rise to the
arrest, and
(iii)
a request that the non-applicant civil partner be detained for a
15
further period not exceeding 2 days,
(b)
if it appears to the sheriff that—
(i)
the statement referred to in paragraph (a)(ii) ostensibly
discloses a breach of interdict by the non-applicant civil partner,
(ii)
proceedings for breach of interdict will be taken, and
20
(iii)
there is a substantial risk of violence by the non-applicant civil
partner against the applicant civil partner or any child of the
family,

he may order the non-applicant civil partner to be detained for a further
period not exceeding 2 days, and
25
(c)
in any case to which paragraph (b) does not apply, the non-applicant
civil partner is, unless in custody in respect of any other matter, to be
released from custody.
(7)
In computing the period of 2 days referred to in paragraphs (a) and (b) of
subsection (6), no account is to be taken of a Saturday or Sunday or of any
30
holiday in the court in which the proceedings for breach of interdict will
require to be raised.
Chapter 5
Dissolution, separation and nullity
Dissolution and separation
35
115
Dissolution
(1)
An action for the dissolution of a civil partnership may be brought in the Court
of Session or in the sheriff court.
(2)
In such an action the court may grant decree, if, but only if, it is established
that—
40
(a)
the civil partnership has broken down irretrievably, or
(b)
an interim gender recognition certificate under the Gender Recognition
Act 2004 (c. 7) has, after the date of registration of the civil partnership,
been issued to either of the civil partners.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 5 — Dissolution, separation and nullity
60

(3)
The irretrievable breakdown of a civil partnership is taken to be established
if—
(a)
since the date of registration of the civil partnership the defender has at
any time behaved (whether or not as a result of mental abnormality and
whether such behaviour has been active or passive) in such a way that
5
the pursuer cannot reasonably be expected to cohabit with the
defender,
(b)
the defender has wilfully and without reasonable cause deserted the
pursuer and during a continuous period of two years immediately
succeeding the defender’s desertion—
10
(i)
there has been no cohabitation between the parties, and
(ii)
the pursuer has not refused a genuine and reasonable offer by
the defender to adhere,
(c)
there has been no cohabitation between the civil partners at any time
during a continuous period of two years after the date of registration of
15
the civil partnership and immediately preceding the bringing of the
action and the defender consents to the granting of decree of
dissolution of the civil partnership, or
(d)
there has been no cohabitation between the civil partners at any time
during a continuous period of 5 years after that date and immediately
20
preceding the bringing of the action.
(4)
Provision is to be made by act of sederunt—
(a)
for the purpose of ensuring that, in an action to which paragraph (c) of
subsection (3) relates, the defender has been given such information as
enables that civil partner to understand—
25
(i)
the consequences of consenting to the granting of decree, and
(ii)
the steps which must be taken to indicate such consent, and
(b)
as to the manner in which the defender in such an action is to indicate
such consent, and any withdrawal of such consent,
and where the defender has indicated (and not withdrawn) such consent in the
30
prescribed manner, that indication is sufficient evidence of such consent.
(5)
Provision is to be made by act of sederunt for the purpose of ensuring that,
where in an action for the dissolution of a civil partnership the defender is
suffering from mental illness, the court appoints a curator ad litem to the
defender.
35
(6)
In an action to which paragraph (d) of subsection (3) relates, even though
irretrievable breakdown of the civil partnership is established the court is not
bound to grant decree if in its opinion to do so would result in grave financial
hardship to the defender.
(7)
For the purposes of subsection (6), hardship includes the loss of the chance of
40
acquiring any benefit.
(8)
In an action for dissolution of a civil partnership the standard of proof required
to establish the ground of action is on balance of probability.
116
Encouragement of reconciliation
(1)
At any time before granting decree in an action by virtue of paragraph (a) of
45
section 115(2) for dissolution of a civil partnership, if it appears to the court that
there is a reasonable prospect of a reconciliation between the civil partners it

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 5 — Dissolution, separation and nullity
61

must continue, or further continue, the action for such period as it thinks
proper to enable attempts to be made to effect such a reconciliation.
(2)
If during any such continuation the civil partners cohabit with one another, no
account is to be taken of such cohabitation for the purposes of that action.
117
Effect of resumption of cohabitation
5
(1)
In an action to which paragraph (b) of section 115(3) relates, the irretrievable
breakdown of a civil partnership is not to be taken to be established if, after the
expiry of the period mentioned in that paragraph—
(a)
the pursuer resumes cohabitation with the defender, and
(b)
cohabits with the defender at any time after the end of a period of 3
10
months commencing with the date of such resumption.
(2)
Subsection (1) is subject to section 116(2).
(3)
In considering whether any period mentioned in paragraph (b), (c) or (d) of
section 115(3) has been continuous, no account is to be taken of any period or
periods not exceeding 6 months in all during which the civil partners cohabited
15
with one another; but no such period or periods during which the civil partners
cohabited with one another is to count as part of the period of non-cohabitation
required by any of those paragraphs.
118
Dissolution following on decree of separation
(1)
The court may grant decree in an action for the dissolution of a civil
20
partnership even though decree of separation has previously been granted to
the pursuer on the same, or substantially the same, facts as those averred in
support of that action; and in any such action the court may treat an extract
decree of separation lodged in process as sufficient proof of the facts under
which that decree was granted.
25
(2)
Nothing in this section entitles a court to grant decree of dissolution of a civil
partnership without receiving evidence from the pursuer.
119
Registration of dissolution of civil partnership
(1)
The Registrar General is to maintain at the General Register Office a register of
decrees of dissolution of civil partnership (a register which shall be known as
30
the “Register of Dissolutions of Civil Partnership”).
(2)
The Registrar General is to cause to be made and kept at the General Register
Office an alphabetical index of the entries in that register.
(3)
The register is to be in such form as may be prescribed.
(4)
On payment to him of such fee or fees as may be prescribed, the Registrar
35
General must, at any time when the General Register Office is open for that
purpose—
(a)
cause a search of the index to be made on behalf of any person or permit
any person to search the index himself,
(b)
issue to any person an extract of any entry in the register which that
40
person may require.
(5)
An extract of any entry in the register is to be sufficient evidence of the decree
of dissolution to which it relates.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 5 — Dissolution, separation and nullity
62

(6)
The Registrar General may—
(a)
delete,
(b)
amend, or
(c)
substitute another entry for,

any entry in the register.
5
Nullity
120
Nullity
Where two people register in Scotland as civil partners of each other but (in
terms of section 84(1)) are not eligible to do so, the civil partnership is void.
121
Validity of civil partnerships registered outside Scotland
10
(1)
Where two people register as civil partners of each other in England and
Wales—
(a)
the civil partnership is void if it would be void in England and Wales
under section 49, and
(b)
the civil partnership is voidable if it would be voidable there under
15
section 50.
(2)
Where two people register as civil partners of each other in Northern Ireland,
the civil partnership is—
(a)
void, if it would be void in Northern Ireland by virtue of provision
made under section 149, and
20
(b)
voidable, if it would be voidable there by virtue of such provision.
(3)
Subsection (4) applies where two people register as civil partners of each other
under an Order in Council under—
(a)
section 202 (registration at British consulates etc.), or
(b)
section 203 (registration by armed forces personnel),
25

(“the relevant section”).
(4)
The civil partnership is—
(a)
void, if—
(i)
it would have been void under section 120 or subsection (1)(a)
or (2)(a) if it had been registered in the appropriate part of the
30
United Kingdom,
(ii)
the condition in subsection (2)(a) of the relevant section is not
met, or
(iii)
a requirement prescribed for the purposes of this paragraph by
an Order in Council under the relevant section is not complied
35
with, and
(b)
voidable, if it would be voidable under section 50(1)(d) or subsection
(1)(b) or (2)(b) if it had been registered in the appropriate part of the
United Kingdom.
(5)
The appropriate part of the United Kingdom is the part by virtue of which
40
(under subsection (2)(b) of the relevant section) the two people concerned were
eligible to register as civil partners of each other.
(6)
Subsections (7) and (8) apply where two people have registered an apparent or
alleged overseas relationship.