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 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