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Session 2003 - 04|
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|Civil Partnership Bill [HL]|
These notes refer to the Civil Partnership Bill [HL] as brought from the House of Lords on 5 July 2004
CIVIL PARTNERSHIP BILL [HL]
1. These explanatory notes relate to the Civil Partnership Bill as brought from the House of Lords on 5 July 2004. They have been prepared by the Department of Trade and Industry in order to assist the reader of the Bill and to help inform debate on it. They do not form a part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. The purpose of the Civil Partnership Bill is to enable same-sex couples to obtain legal recognition of their relationship by forming a civil partnership which they may do by registering as civil partners of each other provided:
4. The Civil Partnership Bill also enables two people to register as civil partners of each other where they are within the degrees of family relationship set out in Schedule 1, provided that both of them are aged over thirty years and they have lived together for a continuous period of twelve years immediately prior to the date of registration. In this case, the two people may be of the same sex or of the opposite sex and they will be eligible to register as civil partners of each other, despite being within the prohibited degrees of relationship set out in paragraph 1 of Schedule 2.
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5. Forming a civil partnership will have legal consequences. The civil partners will assume legal rights and responsibilities with regard to each other and to third parties, including the state.
6. On 30 June 2003 the Government published a consultation paper, 'Civil Partnership: a framework for the legal recognition of same-sex couples', setting out its proposals for a civil partnership. After a three-month consultation period, during which over three thousand responses were received, a report summarising the consultation findings was published in November 2003. An intention to bring forward a Civil Partnership Bill was announced in the Queen's Speech on 26 November 2004.
7. On 10 September 2003, the Scottish Executive announced that in the event that civil partnership registration was introduced in England and Wales, same-sex couples should similarly be able to form a civil partnership in Scotland in order to access a comprehensive package of rights and responsibilities in both reserved and devolved areas. The Scottish Executive therefore proposed seeking the agreement of the Scottish Parliament to the inclusion of Scottish provisions in a future Westminster Civil Partnership Bill. The Scottish Executive published a consultation document on 30 September and an analysis of consultation responses was published on 5 February 2004. The Executive subsequently reaffirmed its intention to introduce civil partnership in Scotland, if it were introduced in England and Wales. On 3 June 2004 the Scottish Parliament agreed to the inclusion of Scottish provisions in a Westminster Bill.
8. Northern Ireland Office Ministers set out their policy intentions on civil partnership in their consultation document, published on 19 December 2003. In it they announced that they supported the introduction of civil partnership in Northern Ireland and for this to be legislated for in the Westminster Bill. The consultation period closed on 5 March 2004. Northern Ireland Office Ministers have decided to take the proposal forward and establish a civil partnership registration scheme for Northern Ireland by including the necessary legislative provisions in the Civil Partnership Bill. Some were included in the Bill as introduced in the House of Lords but others were left to be added to the Bill by amendment.
9. The Bill is in 8 parts and has 29 schedules:
10. Part 1 introduces the key features of civil partnership.
11. Part 2 sets out the arrangements for civil partnerships in England and Wales.
12. Part 3 sets out the arrangements for civil partnerships in Scotland.
13. Part 4 makes provision for civil partnerships in Northern Ireland.
14. Part 5 deals with civil partnerships formed or dissolved abroad.
15. Part 6 deals with relationships arising through civil partnership.
16. Part 7 contains miscellaneous provisions.
17. Part 8 contains supplementary material such as powers to make regulations and orders, commencement and extent.
COMMENTARY ON CLAUSES
Part 1 - Introduction
Clause 1: Civil Partnership
18. This clause establishes civil partnership as a legal relationship between two people of the same sex or between two people within the categories set out in clause 2. Subsection (1) provides for a civil partnership to be formed in either of two ways. The first is when two people register as civil partners of each other, either in the United Kingdom (under the relevant Part of the Bill) or under an Order in Council made under clause 202 or 203 (which allow for registration overseas at British consulates or by armed forces personnel). The second is where the couple register an "overseas relationship" which is treated as a civil partnership under Chapter 2 of Part 5. Subsection (3) provides that a civil partnership only ends on death, dissolution or annulment. The criteria for what constitutes an "overseas relationship" are set out in clauses 204 to 206.
Clause 2: Categories of civil partners other than same-sex couples
19. Subsection (1) provides that two people are eligible to register as civil partners of each other where they:
20. Subsection (2) introduces Schedule 1, which contains provisions for determining when two people are within the specified degrees of family relationship for the purposes of this clause.
Part 2 - Civil Partnership: England and Wales
21. The clauses in this Part extend to England and Wales only (see clause 252(1)).
Chapter 1 - Registration
Clause 3: Formation of civil partnership by registration
22. Subsection (1) describes the point at which a civil partnership is formed and sets out who is to be present at the registration. Subsections (3) - (4) specify who must sign the civil partnership document and the administrative procedure to be completed following the civil partnership registration.
23. Subsection (5) states that no religious service may be used while a civil partnership registrar officiates at the signing of a civil partnership document.
Clause 4: Eligibility
24. Subsection (1) provides that two people are not eligible to register as civil partners of each other if -
25. However, subsection (2) provides that subsection (1)(a) and (1)(d) will not apply where two people wish to register as civil partners of each other under clause 2 (categories of civil partners other than same-sex couples). Therefore they may be eligible to register even though they are of the opposite sex, or within prohibited degrees of relationship.
Clause 5: Parental etc. consent where proposed civil partner under 18
26. This clause sets out the provisions requiring consent where a person wishing to form a civil partnership is under 18 years of age. Schedule 3 identifies the appropriate persons or bodies who may give consent. Subsection (3) provides an exception to the requirement of consent where a civil partner has been bereaved and wishes to register a subsequent civil partnership before he or she is 18. Subsection (5) defines "child" for the purpose of Part 2 as a person who is under 18 (except where the term is used to express a relationship).
Clause 6: Types of pre-registration procedure
27. Subsection (1) sets out the various procedures, available in England and Wales, under which two people may register as civil partners of each other. Subsections (2) and (3) refer respectively to the relevant modifications of those procedures which apply where one of the proposed civil partners lives in Scotland, Northern Ireland or is a member of the armed forces serving abroad, and the other has a usual residence in England and Wales, or where the proposed civil partners are former spouses, one of whom has changed sex. Subsection (4) provides for all the procedures to be subject to Schedule 2 and 3 (in connection with prohibited degrees and where a proposed civil partner is under 18).
Clause 7: Place of registration
28. This clause states that the place where the proposed civil partnership is to be registered must be in England and Wales, must not be in religious premises and must be specified in the notice or notices of proposed civil partnership. For registration under the standard procedure the place must be agreed with the registration authority where the registration is to take place or the notice of proposed civil partnership will be void. The clause also provides that, in the case of registration under the standard procedure, the place must be one which is open to any person wishing to attend the registration.
Clause 8: The civil partnership document
29. This clause defines the term, distinguishing between the Registrar General's licence for the special procedure and the civil partnership schedule for all other procedures and provides that the civil partnership document is delivered to the civil partnership registrar before a civil partnership registration can take place.
30. The clause also enables the civil partnership registrar to ask the proposed civil partners for the information which is to be recorded in the register.
31. Clauses 9 to 18 set out the standard procedure by which two people may register as civil partners of each other in England and Wales.
Clause 9: Notice of proposed civil partnership and declaration
32. Subsection (1) states that for two people to register as civil partners of each other they must each give a notice of proposed civil partnership and have resided in England or Wales for at least 7 days immediately before giving the notice. The content of the notice may be prescribed by regulations. Subsections (3) and (4) state that a notice must include a declaration about kindred, affinity or other lawful impediment and that each party has had a residence in England and Wales for at least 7 days before giving the notice. The declarations must be signed and attested by the person giving the notice and the "authorised person" (as defined by subsection (6)) respectively. Subsection (5) requires the registration authority to record the fact that the notice has been given and the information in it and that the "authorised person" attested the declaration.
Clause 10: Power to require evidence of name etc.
33. This clause enables a registration authority to request specified evidence to verify certain information contained in a notice of proposed civil partnership. Requests for evidence may only be made before the civil partnership schedule has been issued in accordance with clause 15.
Clause 11: Proposed civil partnerships to be publicised
34. This clause sets out which registration authority (or authorities), as well as the Registrar General, must publicise "relevant information" during the "waiting period" after a notice has been given. Subsection (2) defines "relevant information" as the names of the proposed civil partners and such other information as may be prescribed by regulations (see clause 36).
Clause 12: Meaning of the "waiting period"
35. This clause defines the term "waiting period".
Clause 13: Power to shorten the waiting period
36. This clause enables the Registrar General, on an application made to him, to reduce the waiting period if satisfied there are compelling reasons because of exceptional circumstances. Subsections (2) and (3) give powers for the making of procedural regulations in relation to such applications, including delegating the power to shorten the waiting period to a registration authority and making appeals to the Registrar General.
Clause 14: Objection to proposed civil partnership
37. This clause sets out the procedure for any person to make an objection to the issue of a civil partnership schedule. The registration authority in question must record the fact that an objection has been made and the information it contains in the register as soon as possible.
Clause 15: Issue of civil partnership schedule
38. This clause provides for the issue of a civil partnership schedule at the end of the waiting period. Subsection (2) provides a power to prescribe the content of the schedule. The schedule may be issued on the request of one or both of the proposed civil partners, provided the relevant registration authority is satisfied that there is no lawful impediment to the couple forming a civil partnership and that any objections to the proposed civil partnership have been satisfactorily investigated by the relevant registration authority or have been withdrawn. The "relevant registration authority" means that authority which first records that a notice of proposed civil partnership has been given.
Clause 16: Appeal against refusal to issue civil partnership schedule
39. This clause provides for an appeal to the Registrar General against the refusal of a registration authority to issue the civil partnership schedule. The Registrar General must either confirm the refusal or direct that a civil partnership schedule be issued.
Clause 17: Frivolous objections and representations: liability for costs etc.
40. This clause provides for the Registrar General to deal with frivolous objections made against the issue of the civil partnership schedule. Subsection (3) imposes liability on a person who makes a frivolous objection or representation for costs of the proceedings before the Registrar General and for damages payable to the proposed civil partner to whom the objection or representation relates.
Clause 18: Period during which registration may take place
41. This clause provides that until the waiting period in relation to each notice of proposed civil partnership has expired, the proposed civil partners may not form a civil partnership. It also specifies the period of validity of the civil partnership schedule issued under the standard procedure of civil partnership as being 12 months, running from when notice of proposed civil partnership is recorded, and when notices are not recorded on the same day, from the earlier of the two days. After this period the civil partnership schedule cannot be used and fresh notices will need to be given.
Clause 19: House-bound persons
42. This clause caters for people who wish to register as civil partners of each other at the place where one of them is house-bound. The fact that a person is house-bound is shown by a statement made by a registered medical practitioner not more than 14 days before the day on which each notice is recorded that in his opinion, because of illness or disability, that person ought not to move from the place where he is at the time when the statement is made and that it is likely to be the case for at least the following 3 months that, because of the illness or disability, that person ought not to move from that place.
43. Subsection (3) of this clause sets out the procedure for a housebound person to register as a civil partner. This is the same as the standard procedure - see clauses 9 - 18 - with the additional requirement that the receipt of a medical statement, which must accompany each notice, is recorded in the register and the applicable period (during which the civil partnership schedule may be signed) is shortened to 3 months.
44. For the purposes of forming a civil partnership, Subsection (6) treats a person in relation to whom a medical statement is made as being resident and usually resident at the place where he or she is for the time being, even if this would not otherwise be the case.
Clause 20: Detained persons
45. This clause provides for a detained person to register as a civil partner at the place where that person is detained.
46. Subsection (2) defines "detained" as meaning a patient in a hospital (other than a short-term detainee under the Mental Health Act 1983 (c20)) or in a prison or other place to which the Prison Act 1952 (c.52) applies.
47. Subsection (3) sets out the procedure for civil partnership registration involving a detained person. This is the same as the standard procedure - see clauses 9 - 18 - with the additional requirement that the receipt of a supporting statement, which must accompany each notice, is recorded in the register and the applicable period (during which the civil partnership schedule must be signed) is shortened to 3 months.
48. Subsection (4) sets out that a supporting statement is one made by the responsible authority (as defined by subsection (6)) identifying the establishment where the person is detained and confirming that the responsible authority has no objection to that place being specified in a notice of proposed civil partnership.
49. For the purposes of forming a civil partnership, Subsection (8) treats a detained person as being resident and usually resident at the place where he or she is for the time being, even if this would not otherwise be the case.
Clause 21: Modified procedures for certain non-residents
50. Subsection (1) applies subsection (5) to cases where two people wish to register as civil partners of each other in England or Wales where one resides in England or Wales and the other resides in Scotland (subsection (2)); or one resides in England or Wales and the other resides in Northern Ireland (subsection (3)); or one resides in England or Wales and the other is a member of Her Majesty's forces serving outside the United Kingdom (subsection (4)).
51. Subsection (5) provides that for the standard, house-bound and detained persons procedures the following modifications apply: (a) the person in Scotland, Northern Ireland or in HM forces serving overseas is not required to give notice in England and Wales; (b) the person in England or Wales may give notice without declaring that the other person resides in England or Wales; (c) the waiting period is calculated from the date that notice is recorded in England or Wales; (d) a civil partnership schedule is not to be issued until a certificate of no impediment, issued under the "relevant provisions" is produced to the registration authority responsible for the issue of the schedule; (e) the applicable period (during which the civil partnership schedule must be signed) is calculated from the date notice given in England or Wales is recorded; and (f) clause 32 (offences relating to civil partnership schedule) applies so as to take into account the fact that only the person in England and Wales need give notice.
52. Subsection (6) defines the "relevant provision" for a resident in Scotland as clause 95, for a resident in Northern Ireland as clause 146 and for a member of Her Majesty's forces serving outside the United Kingdom as clause 231.
53. Clauses 22 to 28 enable a civil partnership registration to take place very quickly, where one of the couple is seriously ill and not expected to recover. This is the special procedure. The couple must show sufficient evidence, if required, for the issue of a Registrar General's licence. The licence is the equivalent of the civil partnership schedule but can only be issued on the authority of the Registrar General. It is the document that is signed by the couple to form the civil partnership.
Clause 22: Notice of proposed civil partnership
54. This clause allows just one of the proposed civil partners to give a notice of proposed civil partnership under the special procedure, as long as that person complies with any requirements as to evidence. Subsection (3) applies most of the requirements for the declaration under the standard procedure to the special procedure.
Clause 23: Evidence to be produced
55. This clause sets out the evidence that the Registrar General may require the person giving the notice to produce to the registration authority in order to satisfy the Registrar General of the need to use the special procedure.
56. Under subsection (3), a certificate from a registered medical practitioner is sufficient evidence of the seriousness of a proposed civil partner's medical condition and of that person's ability to understand the nature and purport of signing a Registrar General's licence.
Clause 24: Application to be reported to the Registrar General
57. This clause requires the registration authority to inform the Registrar General of any application it received by notice of proposed civil partnership for a licence under the special procedure and of supporting evidence, and to comply with any directions that he may give for verifying the evidence given.
|© Parliamentary copyright 2004||Prepared: 7 July 2004|