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Civil Partnership Bill [HL]


Civil Partnership Bill [HL]
Part 4 — Civil partnership: Northern Ireland
Chapter 2 — Dissolution, nullity and other proceedings

79

 

Dissolution of civil partnership

164     

Dissolution of civil partnership which has broken down irretrievably

(1)   

Subject to section 161, 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.

(6)   

The court must not make a dissolution order without considering the oral

testimony of the applicant unless for special reasons it orders that such

30

testimony be dispensed with.

165     

Supplemental provisions as to facts raising presumption of breakdown

(1)   

Subsection (2) applies if—

(a)   

in any proceedings for a dissolution order the applicant alleges, in

reliance on section 164(5)(a), that the respondent has behaved in such a

35

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

applicant and held by the court to support his allegation, the applicant

and the respondent have lived together for a period (or periods) which

40

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

section 164(5)(a), whether the applicant cannot reasonably be expected to live

with the respondent.

45

 

 

Civil Partnership Bill [HL]
Part 4 — Civil partnership: Northern Ireland
Chapter 2 — Dissolution, nullity and other proceedings

80

 

(3)   

Subsection (4) applies in relation to cases where the applicant alleges, in

reliance on section 164(5)(b), that the respondent consents to a dissolution

order being made.

(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

5

understand—

(a)   

the consequences to him of consenting to the order, and

(b)   

the steps which he must take to indicate his consent.

(5)   

For the purposes of section 164(5)(d) the court may treat a period of desertion

as having continued at a time when the deserting civil partner was incapable

10

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.

(6)   

In considering for the purposes of section 164(5) whether the period for which

the civil partners have lived apart or the period for which the respondent has

15

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,

   

during which the civil partners resumed living together.

(7)   

But no period during which the civil partners have lived with each other

20

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 164(5)(b) and (c) and this section civil partners are

to 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

25

are to be read as references to their living with each other in the same

household.

166     

Dissolution order not precluded by previous separation order etc.

(1)   

Subsections (2) and (3) apply if any of the following orders has been made in

relation to a civil partnership—

30

(a)   

a separation order;

(b)   

an order under Schedule 17 (financial relief in court of summary

jurisdiction etc.);

(c)   

an occupation order under Article 11 of the Family Homes and

Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I.

35

6) (occupation orders));

(d)   

an order under Article 15 of that Order (orders where neither civil

partner entitled to occupy the home).

(2)   

Nothing prevents—

(a)   

either civil partner from applying for a dissolution order, or

40

(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

45

any desertion or other fact by reference to which it was made, but

 

 

Civil Partnership Bill [HL]
Part 4 — Civil partnership: Northern Ireland
Chapter 2 — Dissolution, nullity and other proceedings

81

 

(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

any order requiring the civil partners to live apart,

5

(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

10

the dissolution order as if it had immediately preceded the making of the

application.

(5)   

For the purposes of section 164(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—

15

(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 Article 11 or 15 of the Family Homes and Domestic

Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) which

prohibits the respondent from occupying a dwelling-house in which

20

the applicant and the respondent have, or at any time have had, a civil

partnership home.

167     

Refusal of dissolution in 5 year separation cases on ground 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

25

that—

(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.

30

(2)   

Subsection (3) applies if—

(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 164(5), and

35

(c)   

apart from this section, the court would make a dissolution order.

(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

40

(b)   

if it is of the opinion that the ground mentioned in subsection (1) is

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.

 

 

Civil Partnership Bill [HL]
Part 4 — Civil partnership: Northern Ireland
Chapter 2 — Dissolution, nullity and other proceedings

82

 

168     

Proceedings before order made final: protection for respondent in separation

cases

(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

5

entitled to rely on the fact of 2 years’ separation coupled with the

respondent’s consent to a dissolution order being made,

(b)   

it made no such finding as to any other fact mentioned in section 164(5),

and

(c)   

it is satisfied that the applicant misled the respondent (whether

10

intentionally or unintentionally) about any matter which the

respondent took into account in deciding to give his consent.

(2)   

Subsections (3) to (5) apply if—

(a)   

the respondent to an application for a dissolution order in which the

applicant alleged—

15

(i)   

2 years’ separation coupled with the respondent’s consent to a

dissolution order being made, or

(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

20

(b)   

the court—

(i)   

has made a conditional dissolution order on the basis of a

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

25

section 164(5).

(3)   

The court hearing an application by the respondent under subsection (2) must

consider all the circumstances, including—

(a)   

the age, health, conduct, earning capacity, financial resources and

financial obligations of each of the parties, and

30

(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

applicant die first.

(4)   

The court must not make the order final unless it has, by order, declared that it

is satisfied that—

35

(a)   

the applicant should not be required to make any financial provision

for the respondent,

(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, or

40

(c)   

there are circumstances making it desirable that the order should be

made final without delay.

(5)   

The court must not make an order declaring that it is satisfied as mentioned in

subsection (4)(c) unless it has obtained a satisfactory undertaking from the

applicant that he will bring the question of financial provision for the

45

respondent before the court within a specified time.

 

 

Civil Partnership Bill [HL]
Part 4 — Civil partnership: Northern Ireland
Chapter 2 — Dissolution, nullity and other proceedings

83

 

(6)   

Subsection (7) applies if, following an application under subsection (2) which

is not withdrawn, the court makes the order final without making an order

under subsection (4).

(7)   

The final order is voidable at the instance of the respondent or of the court but

no person is entitled to challenge the validity of the order after it is made final

5

on the ground that subsections (4) and (5) were not satisfied.

(8)   

If the court refuses to make an order under subsection (4), it must, on an

application by the applicant, make an order declaring that it is not satisfied as

mentioned in that subsection.

Nullity

10

169     

Grounds on which civil partnership is void

Where two people register as civil partners of each other in Northern Ireland,

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 134), or

15

(b)   

at the time when they do so they both know—

(i)   

that due notice of proposed civil partnership has not been

given,

(ii)   

that the civil partnership schedule has not been duly issued,

(iii)   

that the place of registration is a place other than that specified

20

in the civil partnership schedule, or

(iv)   

that a registrar is not present.

170     

Grounds on which civil partnership is voidable

(1)   

Where two people register as civil partners of each other in Northern Ireland,

the civil partnership is voidable if—

25

(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

30

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

35

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 171 “mental disorder” has the same meaning as in

the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)).

40

171     

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—

 

 

Civil Partnership Bill [HL]
Part 4 — Civil partnership: Northern Ireland
Chapter 2 — Dissolution, nullity and other proceedings

84

 

(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

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.

5

(2)   

Without prejudice to subsection (1), the court must not make a nullity order by

virtue of section 170(1)(a), (b), (c) or (e) unless—

(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

10

period has been granted under subsection (3).

(3)   

A judge of the court may, on an application made to him, grant leave for the

institution of proceedings if he—

(a)   

is satisfied that the applicant has at some time during the 3 year period

suffered from mental disorder, and

15

(b)   

considers that in all the circumstances of the case it would be just to

grant leave for the institution of proceedings.

(4)   

An application for leave under subsection (3) may be made after the end of the

3 year period.

(5)   

Without prejudice to subsection (1), the court must not make a nullity order by

20

virtue of section 170(1)(d) unless it is satisfied that proceedings were instituted

within the period of 6 months from the date of issue of the interim gender

recognition certificate.

(6)   

Without prejudice to subsections (1) and (2), the court must not make a nullity

order by virtue of section 170(1)(c) or (e) unless it is satisfied that the applicant

25

was at the time of the formation of the civil partnership ignorant of the facts

alleged.

172     

Proof of certain matters not necessary to validity of civil partnership

Where two people have registered as civil partners of each other in Northern

Ireland, it is not necessary in support of the civil partnership to give any

30

proof—

(a)   

that any person whose consent to the civil partnership was required by

section 141 (parental etc. consent) had given his consent;

(b)   

that the registrar was properly appointed under section 148;

and no evidence is to be given to prove the contrary in any proceedings

35

touching the validity of the civil partnership.

Presumption of death orders

173     

Presumption of death orders

(1)   

The High Court may, on an application made by a civil partner, make a

presumption of death order if it is satisfied that reasonable grounds exist for

40

supposing that the other civil partner is dead.

(2)   

In any proceedings under this section the fact that—

(a)   

for a period of 7 years or more the other civil partner has been

continually absent from the applicant, and

 

 

Civil Partnership Bill [HL]
Part 4 — Civil partnership: Northern Ireland
Chapter 2 — Dissolution, nullity and other proceedings

85

 

(b)   

the applicant has no reason to believe that the other civil partner has

been living within that time,

   

is evidence that the other civil partner is dead until the contrary is proved.

Separation orders

174     

Separation orders

5

(1)   

An application for a separation order may be made to the court by either civil

partner on the ground that any such fact as is mentioned in section 164(5)(a),

(b), (c) or (d) exists.

(2)   

On an application for a separation order the court must inquire, so far as it

reasonably can, into—

10

(a)   

the facts alleged by the applicant, and

(b)   

any facts alleged by the respondent,

   

but whether the civil partnership has broken down irretrievably is irrelevant.

(3)   

If the court is satisfied on the evidence of any such fact as is mentioned in

section 164(5)(a), (b), (c) or (d) it must, subject to section 181, make a separation

15

order.

(4)   

Section 165 (supplemental provisions as to facts raising presumption of

breakdown) applies for the purposes of an application for a separation order

alleging any such fact as it applies in relation to an application for a dissolution

order alleging that fact.

20

175     

Effect of separation order

If either civil partner dies intestate as respects all or any of his or her real or

personal property while—

(a)   

a separation order is in force, and

(b)   

the separation order is continuing,

25

the property as respects which he or she died intestate devolves as if the other

civil partner had then been dead.

Declarations

176     

Declarations

(1)   

Any person may apply to the court for one or more of the following

30

declarations in relation to a civil partnership specified in the application—

(a)   

a declaration that the civil partnership was at its inception a valid civil

partnership;

(b)   

a declaration that the civil partnership subsisted on a date specified in

the application;

35

(c)   

a declaration that the civil partnership did not subsist on a date so

specified;

(d)   

a declaration that the validity of a dissolution, annulment or legal

separation obtained in any country outside Northern Ireland in respect

of the civil partnership is entitled to recognition in Northern Ireland;

40

 

 

 
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