|Civil Partnership Bill [HL] - continued||House of Commons|
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Clause 25: Objection to issue of Registrar General's licence
58. This clause sets out the procedure for any person to make an objection to the Registrar General giving authority for the issue of his licence. 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 26: Issue of Registrar General's licence
59. This clause applies where a notice of proposed civil partnership has been given to the registration authority under clause 22. The registration authority may issue a Register General's licence only if given authority to do so by the Registrar General. The licence must state that it is issued on the Registrar General's authority and must contain such other information as may be prescribed by regulations. The Registrar General must only give his authority if he is satisfied that one of the proposed civil partners is seriously ill and not expected to recover, and even then he must not give his authority unless he is also satisfied that there is no lawful impediment to the issue of the licence. If an objection has been made to the Registrar General giving his authority, he must not give his authority until he has investigated the objection and has decided whether it ought to obstruct the issue of the licence or the objection has been withdrawn.
Clause 27: Frivolous objections: liability for costs
60. This clause applies if a person objects to the Registrar General giving authority for the issue of his licence and the Registrar General declares that the objection is frivolous. Subsection (2) provides that the person making the objection is liable for the costs of the proceedings before the Registrar General and for damages recoverable by the proposed civil partner to whom the objection relates.
Clause 28: Period during which registration may take place
61. This clause establishes the period of validity of Registrar General's licences issued under the special procedure as 1 month from the day on which notice is given. After this period the notice and licence are void.
Clause 29: Registration Authorities
62. This clause defines "registration authority" in relation to England and Wales
Clause 30: Civil partnership registrars
63. This clause defines civil partnership registrars (subsection (1)) and places a duty on registration authorities to ensure that there are sufficient individuals designated as such in their area to carry out the functions of civil partnership registrars (subsection (2)) and sets out the administrative arrangements relating to these designations (subsection (3)). It also places a duty on the Registrar General and make available to the public a list of civil partnership registrars and the registration authorities for which they are designated to act.
Clause 31: The Registrar General and the register
64. This clause defines "the Registrar General" and places certain responsibilities on him relating to the maintenance of records that relate to civil partnerships.
Clause 32: Offences relating to civil partnership schedule
65. This clause creates offences in relation to the civil partnership schedule.
66. Subsection (3) sets out the maximum penalty that may be imposed for these offences. Subsection (4) specifies the time limit within which a prosecution may be brought.
Clause 33: Offences relating to Registrar General's licence
67. This clause creates offences in relation to the special procedure.
68. Subsection (3) sets out the maximum penalty that may be imposed for these offences. Subsection (4) specifies the time limit within which a prosecution may be brought.
Clause 34: Offences relating to the recording of civil partnerships
69. This clause creates offences in relation to the requirements for recording civil partnerships in the register, and specifies the maximum penalty for each offence. Subsection (9) provides a time limit of 3 years after the commission of the offence in relation to the commencement of a prosecution for certain of those offences.
Clause 35: Fees
70. This clause enables the Chancellor of the Exchequer to make an order providing for fees to be payable in relation to specified elements of the different civil partnership registration procedures. The clause also makes provision, in cases of hardship, for the Registrar General to remit the fee for the issue of his licence under the special procedure.
Clause 36: Regulations and orders
71. This clause provides that regulations may make provision supplementing the provisions on registration. The clause also provides that references to regulations within the registration provisions are to regulations made by the Registrar General, with the approval of the Chancellor of the Exchequer. Subsection (4) enables the Chancellor of the Exchequer to amend the Bill in consequence of any order under the Regulatory Reform Act 2001 which includes provision relating to the system of registration of marriage in England and Wales. No orders can be made under subsection (4) unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament. Subsection (5) provides that any power to make regulations or an order as set out by this clause is exercisable by statutory instrument. Statutory instruments containing an order made under clause 35 are subject to annulment in pursuance of a resolution of either House of Parliament.
Chapter 2 - Dissolution, Nullity and Other Proceedings
Clause 37: Powers to make orders and effect of orders
72. This clause lists the orders that the court can make (and their effects) to bring a civil partnership to an end or to formally recognise the separation of the parties. These are as follows:
73. Subsection (2) provides that an order for dissolution, nullity or presumption of death will initially be a conditional order and that it may not be made final until the end of the prescribed period defined in clause 38.
74. Subsection (3) provides that a nullity order made in respect of a civil partnership which is voidable annuls the civil partnership only for any period after the order is made final. The civil partnership is to be treated as if it had existed up to that date.
75. The courts which can make these orders are defined in subsection (4) as the High Court or a county court with jurisdiction to hear civil partnership proceedings. Subsection (5) makes it clear that the powers of the court under this clause are subject to the court having jurisdiction under clauses 211 to 216 of the Bill.
Clause 38: The period before conditional orders may be made final
76. This clause sets the period which must elapse before a dissolution, nullity or presumption of death order may be made final. By subsection (1), the period is 6 weeks from the making of the conditional order (subject to a slight modification if this period ends on a day when the court office or registry is closed). Subsection (2) gives the Lord Chancellor power to make an order substituting a different period not exceeding 6 months. Subsection (4) provides that in particular cases the court may reduce the period (this might be relevant, for example, in the case of a deathbed dissolution and formation of a new civil partnership).
Clause 39: Intervention of the Queen's Proctor
77. This clause provides for the intervention of the Queen's Proctor in proceedings where an application has been made for a dissolution, nullity or presumption of death order. The court may involve the Queen's Proctor where it considers it necessary or expedient to have any question in relation to the case fully argued by counsel appointed by the Queen's Proctor, under the directions of the Attorney General. Any person may also give information to the Queen's Proctor on relevant issues at any time before the order has been made final and the Queen's Proctor can take such steps as the Attorney General considers necessary or expedient. The clause also gives the court discretion to order the payment of costs by or to the Queen's Proctor.
Clause 40: Proceedings before order has been made final
78. This clause provides for the court to consider the position once a conditional order has been made but before it has been made final. By subsection (1), the clause applies where the Queen's Proctor, or anyone who has not been a party to the proceedings, shows that that there is cause (good reason) why the conditional order should not be made final on the ground that material facts were not put before the court. By subsection (2), the court may also consider a case under this clause where the civil partner who applied for the conditional order has not taken steps to make this final within 3 months from the earliest date when such an application could have been made, and the other civil partner applies to the court under this clause.
79. Where this clause applies, the court may make the order final, rescind the order, direct that further enquiries are to be made, or deal with the case in such other manner as it thinks fit. By subsection (4), the court's power to make the order final applies even if the minimum period under clause 38 has not yet expired, but is subject to the restrictions imposed in clause 48(4) (relating to financial provision in separation cases) and clause 63 (restrictions on the court's powers to make orders affecting children).
Clause 41: Time bar on applications for dissolution orders
80. This clause states that it will not be possible for an application for dissolution of a civil partnership to be made until at least 1 year after the date of formation of the civil partnership. However, matters which occurred within this 1 year period may be used in support of the application.
Clause 42: Attempts at reconciliation of civil partners
81. This clause allows the court to adjourn an application for a dissolution or separation order if it appears that the civil partners have a reasonable possibility of achieving a reconciliation. Subsection (2) provides that rules of court must make provision for the applicant's solicitors to certify whether they have discussed with their client the possibility of reconciliation and to provide the applicant with details of persons qualified to help the civil partners effect a reconciliation.
Clause 43: Consideration by the court of certain agreements or arrangements
82. This clause provides that the rules of court may make provision for civil partners to refer to the court an agreement or arrangement between them in connection with the dissolution of the civil partnership or with their separation. The rules may allow the court to express an opinion about whether the agreement or arrangement is reasonable, or to give directions.
Clause 44: Dissolution of civil partnership which has broken down irretrievably
83. This clause establishes the ground on which an application for the dissolution of a civil partnership may be made and the four facts which can prove the ground for dissolution.
84. Subsection (1) provides that the sole ground on which an application for dissolution may be made is that the civil partnership has broken down irretrievably.
85. In order to demonstrate the irretrievable breakdown of the civil partnership the applicant must satisfy the court of one or more of the following facts set out in subsection (5):
86. Subsection (2) provides that the court must inquire as far as possible into the facts alleged by the applicant and any facts put forward by the respondent. If the court is satisfied of any of the facts set out in subsection (5), it must make a dissolution order unless on the evidence it is not satisfied that the civil partnership has broken down irretrievably.
Clause 45: Supplemental provisions as to facts raising presumption of breakdown
87. Subsections (1) and (2) provide that where an applicant alleges that the other civil partner has behaved in such a way that the applicant cannot reasonably be expected to live with the other civil partner, but, following the final incident used to support the fact, the civil partners have continued to cohabit for a period or periods of time amounting to less than 6 months in total, the court must disregard this time spent living together when determining whether the allegation is made out.
88. Subsections (3) and (4) provide that where a civil partner allegedly consents to the making of a dissolution order under the "2 years' separation" head, then rules of court must provide that he or she is made aware of the consequences of consenting to the order and what must be done to indicate consent.
89. Subsection (5) allows the court to consider a period of desertion as continuing even when the civil partner concerned was incapable of continuing the necessary intention, provided the court would on the evidence have inferred that the period of desertion would have continued if the civil partner had been able to continue the intention. This would cover a situation where one civil partner deserts his or her civil partner for 2 years but is involved in an accident at some time over the 2 years which leads to a temporary loss of consciousness. This break in the "intention to desert" would not stop the 2 years from accruing.
90. Subsection (6) provides that when considering whether a period of living apart or desertion is continuous, no account is to be taken of a period or periods of time not exceeding 6 months in total in which the civil partners resumed living together. However (as a separate issue from whether the period of living apart or desertion could be regarded as "continuous") under subsection (7) no period during which the civil partners lived together can count as part of the period of living apart or desertion. So for example, desertion or separation for 2 years can be proved, even if the civil partners lived together for, say, 2 months during the relevant period, so long as the total period of desertion or separation adds up to 2 years (excluding those 2 months).
91. Subsection (8) provides that civil partners are to be treated as living apart unless they are living with each other in the same household.
Clause 46: Dissolution order not precluded by previous separation order etc.
92. This clause provides that where a separation order, an order for financial relief in the magistrates' court or an occupation order under sections 33 and 37 of the Family Law Act 1996 (c. 27) has been made, either civil partner may still apply to the court for a dissolution order. The same facts as were used for the previous order may be used to support the application for a dissolution order. Under subsection (3) the court may treat the order made previously as sufficient proof of the facts alleged in support of the application for a dissolution order but must not make that order without receiving evidence from the applicant.
93. Subsection (4) applies where an application for a dissolution order is made following a separation order or any order requiring the civil partners to live apart. If there was a period of desertion immediately preceding the application for a separation order, the parties 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 as if it had taken place immediately prior to the application for the dissolution order. This will mean that the period of desertion can be used to support the application for a dissolution order.
94. Under subsection (5) the court may also treat as a period of desertion to support an application for a dissolution order a period during which the respondent was subject to an injunction excluding him or her from the civil partnership home or when an order under sections 33 and 37 of the Family Law Act 1996 (c. 27) was in force prohibiting the civil partner from exercising his or her right to live in a dwelling-house used as the civil partnership home.
Clause 47: Refusal of dissolution in 5 year separation cases on grounds of grave hardship
95. Subsection (1) provides that the respondent to an application for a dissolution order in which the applicant alleges 5 years' separation may oppose the making of a dissolution order on the ground that the dissolution of the civil partnership would result in grave financial or other hardship to him or her and that in the circumstances it would be wrong to make the order. By subsection (3) the court must consider all the circumstances, including the conduct of the civil partners and the interests of any children or other persons concerned, and if the court is satisfied that there would be severe hardship it must dismiss the application for the dissolution order. Subsection (4) provides that "hardship" includes the loss of the chance of acquiring any benefit which the respondent might acquire if the civil partnership were not dissolved.
Clause 48: Proceedings before order made final: protection for respondent in separation cases
96. Subsection (1) provides that the court can rescind a dissolution order which has not been made final if the application was on the basis of 2 years' separation with the other civil partner's consent and the applicant misled their civil partner over any matter which led to consent being given.
97. Subsections (2) to (5) allow the respondent to an application for a dissolution order alleging either 2 years' or 5 years' separation to apply to the court to consider his or her financial position after dissolution of the civil partnership. The court must consider all the relevant circumstances including the age, health, conduct, earning capacity, financial resources and obligations of each civil partner and the position of the respondent on the death of the applicant, assuming the applicant died first. Under subsection (4) the court must not make the dissolution order final unless it is satisfied either that the applicant should not be required to make financial provision for the respondent or that the provision made for the respondent is reasonable and is the best that can be made in the circumstances. Under subsection (5) the court may make the dissolution order final if the circumstances make it desirable to do so without delay, provided it has obtained an undertaking from the applicant to make such financial provision for the respondent as the court may approve.
Clause 49: Grounds on which civil partnership is void
98. This clause sets out the grounds on which a civil partnership will be void (and therefore invalid) under the law of England and Wales, where the parties registered as civil partners of each other in England and Wales. (The grounds on which the law of England and Wales will hold other civil partnerships to be void are set out in clause 54.)
99. Paragraph (a) provides that the civil partnership will be void if, at the time when the two people registered as civil partners in England and Wales, they were not eligible to register as civil partners of each other under the requirements set out in clause 4.
100. Paragraph (b) lists the breaches of the formal requirements which will render the civil partnership void if both civil partners were aware of them at the time of the registration. These are the failure to provide the required notice of proposed civil partnership, the civil partnership document not being duly issued or having expired, the place of registration not being the place specified in the notice(s) of proposed civil partnership and the civil partnership document, or a civil partnership registrar not being present at the registration.
101. Paragraph (c) provides that the civil partnership will be void if the civil partnership document is void because one of the intended civil partners is a child (under the age of 18) and the issue of the civil partnership document has been forbidden by a person whose consent is required for the child to form a civil partnership.
Clause 50: Grounds on which civil partnership is voidable
102. This clause sets out the grounds on which an application can be made for an order annulling a civil partnership on the grounds that it is voidable, where the parties registered as civil partners of each other in England and Wales. (The grounds on which the law of England and Wales will hold other civil partnerships to be voidable are set out in clause 54.) The grounds are as follows:
Clause 51: Bars to relief where civil partnership is voidable
103. Subsection (1) provides that the court must not make a nullity order on the grounds that a civil partnership is voidable if the applicant had acted towards the respondent in such a way as to indicate that he or she would not apply for a nullity order and that it would be unjust to the respondent to make the order now.
104. Subsection (2) establishes that an application for a nullity order on the grounds that a civil partnership is voidable (other than in the circumstances dealt with by subsection (5) below) must be made within 3 years of the date of formation of the civil partnership. However subsections (3) and (4) permit the court to allow later applications where it is just to do so on the basis that the applicant suffered from mental disorder during the 3-year period.
105. Where the application is made on the ground that an interim gender recognition certificate has been issued under the Gender Recognition Act 2004 after the date of formation of the civil partnership, the time limit under subsection (5) is 6 months from the date of issue of that certificate.
106. Subsection (6) provides that, where the application is made on the grounds of pregnancy at the time of formation of the civil partnership, or a change of gender previous to that date, a nullity order must not be made unless the applicant did not know of the relevant facts at the time of formation of the civil partnership.
Clause 52: Proof of certain matters not necessary to validity of civil partnership
107. This clause provides that where two people have registered as civil partners of each other in England and Wales it is not necessary for them to provide evidence that any consent required under clause 5 (consent by parents etc. where one of the intended civil partners is a child) was actually given, or that the person who officiated at the signing of the civil partnership schedule was a designated civil partnership registrar for the area in which registration took place. No evidence may be given in any nullity proceedings to disprove either of these facts.
108. The issue of consent is subject to the provisions of clause 49(c) which provides that a civil partnership will be void if it was forbidden by a person whose consent is required for a child to form a civil partnership.
|© Parliamentary copyright 2004||Prepared: 7 July 2004|