House of Commons - Explanatory Note
Civil Partnership Bill [HL] - continued          House of Commons

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Clause 53: Power to validate civil partnership

109.     Subsection 1 provides that the Lord Chancellor may by order validate a civil partnership, where two people register as civil partners of each other in England and Wales, if it appears to him that the civil partnership is or may be void under clause 49(b). Subsection (2) provides that an order under subsection (1) may include provisions for relieving a person from any liability under clauses 32(2), 33(2), 34(5) or 34(7) (offences relating to civil partnership schedule, Registrar General's licence and recording of civil partnerships). Subsection (3) provides that the draft of an order under subsection (1) must be advertised for not less than one month prior to the order being made. Subsection (4) provides that the Lord Chancellor must consider all objections sent to him during that month and, if it appears necessary to him, direct a local inquiry into the validity of any such objections. Subsection 5 provides that an order under subsection (1) is subject to the special parliamentary procedure. The special parliamentary procedure is laid down in the Statutory Orders (Special Procedure) Act 1945.

Clause 54: Validity of civil partnership registered outside England and Wales

110.     This clause determines the rules to be applied when determining whether, under the law of England and Wales, a civil partnership is void or voidable where the parties did not register as civil partners in England and Wales. If the civil partnership is void or voidable, a court in England and Wales which has jurisdiction under clauses 211 to 216 may make a nullity order in respect of the civil partnership under clause 37.

111.     Subsection (1) ensures that a civil partnership formed in Scotland is void for the purposes of the law of England and Wales only if it would be void under the Scottish provisions in clause 120 of the Bill. The civil partnership will also be voidable if an interim gender recognition certificate is subsequently issued to either party under the Gender Recognition Act 2004.

112.     Subsection (2) ensures that a civil partnership which was registered in Northern Ireland is void or voidable for the purposes of the law of England and Wales only if it would be void or voidable under the provisions applicable in Northern Ireland.

113.      Subsection (4) deals with the situation where the parties registered as civil partners outside the United Kingdom under an Order in Council made under clause 202 or 203. Orders in Council made under those clauses will include provision for determining the relevant part of the United Kingdom for certain purposes. Paragraphs (a)(i) and (b) of subsection (4) ensure that questions of nullity are then dealt with in exactly the same way as would apply under English law if the parties had registered as civil partners in that part of the United Kingdom.

114.     In addition the civil partnership will be void if the condition in clause 202(2)(a) or 203(2)(a) (whichever is relevant) was not met. Where the parties registered as civil partners at a British consulate etc., the condition is that one party must be a United Kingdom national as defined in clause 237. Where the parties registered as civil partners in the armed services, the condition is that one of the proposed civil partners is a member of the armed forces serving in the country or territory where the partnership is registered, or falls within certain other related categories as set out in clause 203(2)(a).

115.     Finally the civil partnership will also be void if there is a breach of a requirement of the Order in Council which is prescribed for this purpose by the Order itself (this power will be used to define in the Order those requirements which are mandatory in order to ensure the validity of the civil partnership).

116.     Subsection (8) sets out the rules to be applied in relation to an apparent or alleged overseas relationship. An overseas relationship can be treated as a civil partnership under Chapter 2 of Part 5. But the civil partnership will be void if it transpires that the relationship is in fact not an overseas relationship as defined in clauses 204 to 206, or if one of the requirements for the overseas relationship to be treated as a civil partnership under clauses 207 to 210 is not met. For example the civil partnership will be void if, under the law of the country where the registration took place, the formalities necessary to enter into the overseas relationship were not fulfilled or there was no capacity to enter into the overseas relationship (see clause 207(1)). It is also voidable if that is the effect of the law of the country where the registration took place (see the definition of "the relevant law") or on the grounds that an interim gender recognition certificate has been issued under the Gender Recognition Act 2004. But if either party was domiciled in England and Wales then the civil partnership will also be voidable in the other circumstances set out in clause 50(1).

117.     Where a civil partnership is voidable in accordance with this clause the clause 50 bars to relief are applied in the usual way. However where the civil partnership is voidable by virtue of the application of foreign law, the bars to relief will only apply in so far as they are applicable under the foreign law.

Clause 55: Presumption of death orders

118.     This clause gives the court power to make a presumption of death order when a civil partner applies for it on the grounds that the court is satisfied that there are reasonable grounds for believing that the other civil partner is dead. The fact that the other civil partner has been absent from the applicant for a continuous period of 7 years or more and that the applicant has no reason to believe that he or she has been living during that time will be accepted as evidence that the other civil partner is dead until the contrary is proved.

Clause 56: Separation orders

119.     This clause allows for an application to be made for an order for separation on the same grounds and using the same facts as are required for an order for dissolution of a civil partnership. The court must inquire as far as possible into the facts alleged by the applicant and any facts put forward by their civil partner (referred to as the respondent for the purpose of the proceedings.) If the court is satisfied of the facts alleged it must make a separation order (subject to provisions relating to children).

Clause 57: Effect of separation order

120.     This clause provides that when a civil partner dies without making a will (intestate) and a separation order is in force and the separation is continuing the rules in respect of the passing of intestate estates shall be applied as if his or her surviving (but separated) civil partner were also dead.

Clause 58: Declarations

121.     This clause provides for people to apply to the court for declarations regarding the status of a civil partnership. These applications cover its validity, that it was or was not in existence on a certain date, and declarations as to whether a dissolution obtained outside England and Wales either can or cannot be recognised in England and Wales.

122.     Under Subsection (2) the court must consider whether the person applying has a sufficient interest to justify making a declaration if the applicant is not one of the civil partners.

Clause 59: General provisions as to making and effect of declarations

123.     This clause provides that where an application is made under clause 58 and the truth of the proposition to be declared is proved to the satisfaction of the court, the court must make the declaration requested unless it is manifestly contrary to public policy to do so. If the court dismisses the application, it must not make any other declaration which has not been applied for. The court cannot make a declaration that a civil partnership was void at its inception. Nothing in this clause will prevent the court from being able to make a nullity order in respect of the civil partnership.

Clause 60: The Attorney General and proceedings for declarations

124.     This clause provides that, in any case where an application is made for a declaration under clause 58, the court may direct that the appropriate papers in the matter should be sent to the Attorney General. The Attorney General may in any event intervene in proceedings for a declaration under clause 58 as he thinks necessary, or may argue any question which the court thinks should be fully argued. Subsection (3) enables the court to make an order for the parties to the proceedings to pay the costs incurred by the Attorney General if this is justified.

Clause 61: Supplementary provisions as to declarations

125.     This clause provides for rules of court to determine the form of an application under clause 58 for a declaration, and of the declaration itself. The rules may provide for the information to be supplied by the applicant and for notice of the application to be served on the Attorney General and on persons who may be affected by the declaration.

126.     Subsection (3) provides that no proceedings under clause 58 will affect any final order or judgment already given. Subsection (4) allows the court to hear any application under clause 58 (or any part of it) in private (and by subsection (5) any application for such a direction must itself be heard in private unless the court directs otherwise).

Clause 62: Relief for respondent in dissolution proceedings

127.     This clause provides that if the respondent in dissolution proceedings alleges and proves any of the facts which the applicant had to satisfy the court of, the court may grant the respondent the relief that would normally be granted to an applicant who had proved such facts, as if it had been the respondent who had made the application.

Clause 63: Restriction on making of orders affecting children

128.     This clause provides that in any proceedings for a dissolution, nullity or separation order the court must consider whether there are any children for whom the court should exercise its powers under the Children Act 1989 (c. 41) in order to safeguard their welfare and provide for their upbringing. If necessary the court may direct that the dissolution, nullity or separation order is not to be made final until the court has considered whether to exercise those powers. The provisions apply to any child of the family who is under 16 years of age at the date the court considers the position and also to children of the family over 16 if the court directs that they should also be included in its consideration.

Clause 64: Parties to proceedings under this Chapter

129.     This clause allows rules of court to be made to allow for parties to be joined to proceedings for dissolution, nullity or separation if they are involved in allegations of improper conduct made in the proceedings. The rules may also provide for the court to dismiss parties whom it has joined to the proceedings, and as to the persons who are to be party to an application for a declaration. Subsection (3) enables the court to permit a person to intervene if it thinks he or she should be made a party.

Chapter 3 - Property and Financial Arrangements

Clause 65: Contribution by civil partner to property improvement

130.     This clause provides that where a civil partner has made a substantial contribution in money or money's worth to the improvement of property in which either or both the civil partners have an interest he or she is to be treated as having acquired a share or an enlarged share in that property. The extent of the share will be determined by any agreement made between the parties or, if there is no agreement, it will be determined by what may seem in all the circumstances just to any court before which the question of the existence or extent of the beneficial interest of either of the civil partners arises. The acquiring of a share or an enlarged share will be subject to any agreement made or implied between the civil partners to the contrary.

Clause 66: Disputes between civil partners about property

131.     This clause enables civil partners to refer disputes over property to court. It provides that civil partners may apply to the High Court or to a county court in respect of any question relating to the title to or the possession of property. The court may make such order with respect to the property as it thinks fit, including an order for the sale of the property.

Clause 67: Applications under section 66 where property not in possession etc.

132.     This clause allows one civil partner (A) to make an application under clause 66 where the other civil partner (B) no longer has the money or property concerned or (A) does not know whether (B) still has the money or property. The power of the court to make orders under clause 66 includes the power to order (B) to pay to (A) such sum of money as seems appropriate or to make any other order which it could have made under clause 64.

Clause 68: Actions in tort between civil partners

133.     This clause enables the court to stay proceedings in tort brought by one civil partner against the other during their civil partnership, if it appears that neither party would substantially benefit from continuation of the proceedings, or where the issue could better be resolved by an application under clause 66. It also enables the court to exercise any of the powers it could exercise under clause 66 or give any directions as it thinks fit for the disposal, under that clause, of any question arising in the proceedings.

Clause 69: Assurance policy by civil partner for benefit of other civil partner etc.

134.     This clause extends the application of section 11 of the Married Women's Property Act 1882 (c.75) to civil partners, so that if a civil partner takes out a life insurance policy to provide for his or her civil partner or children the money payable under the policy is not to form part of the estate of the insured.

Clause 70: Wills, administration of estates and family provision

135.     This clause states that Schedule 5 contains provisions amending Acts relating to wills, the administration of estates and family provision to give the same treatment to civil partners as exist for married people.

Clause 71: Financial relief for civil partners and children of the family

136.     Subsection (1) introduces Schedule 6, which makes provision for financial relief for civil partners which corresponds to the relief available to married couples in the High Court or a county court under Part 2 of the Matrimonial Causes Act 1973 when they go through divorce, nullity or judicial separation proceedings.

137.     Subsection (2) provides that if the effect of rules of law is that provisions for financial relief under Part 2 of the Matrimonial Causes Act 1973 are interpreted as being available in the case of the dissolution of a marriage on the ground of presumed death, then those rules of law will also apply to the corresponding financial provisions in Schedule 6 to the Bill for civil partners, with any necessary modifications. This is to allow case law to be available to civil partners which allows for financial relief to be available if the person who was presumed dead is subsequently proved to be alive.

138.     Subsection (3) introduces Schedule 7, which provides civil partners with the right to apply for financial relief in magistrates' courts in a way that corresponds to the rights that exist for married people under the Domestic Proceedings and Magistrates Courts Act 1978 (c.22).

139.     Subsection (4) introduces Schedule 8, which contains provisions for financial relief in England and Wales after a civil partnership has been dissolved or annulled or the civil partners have been legally separated in a country outside the British Islands. "British Islands" is defined in the Interpretation Act 1978 (c. 30) as comprising the United Kingdom, the Channel Islands and the Isle of Man.

Chapter 4 - Civil Partnership Agreements

Clause 72: Civil partnership agreements unenforceable

140.     This clause provides that an agreement to form a civil partnership by any of the means outlined in clause 1 ("a civil partnership agreement") does not constitute a contract giving rise to legal rights under the law of England and Wales and will not be enforceable.

141.     Subsection (2) provides that no action can be taken over any breach of a civil partnership agreement.

142.     Subsection (4) provides that the clause will apply to civil partnership agreements entered into both before and after the section comes into force but it will not affect any legal action which has begun before the clause comes into force.

Clause 73: Property where civil partnership agreement is terminated

143.     This clause applies when a civil partnership agreement is terminated. It provides that clause 65(dealing with contributions to property improvement by a civil partner) and clauses 66 and 67 (regarding disputes between civil partners over property and applications where property is not in possession) will apply in relation to property in which either or both of the parties to the agreement had a beneficial interest while the agreement was in force.

144.     An application made using the provisions of clauses 66 and 67 must be made within three years of the date of termination of the civil partnership agreement.

145.     Subsection (5) provides that where a person makes a gift to the other person on the understanding that it will be returned if the civil partnership agreement is terminated, they can recover the property given even if he or she terminated the agreement himself or herself.

Chapter 5 - Children

146.     This Chapter makes various amendments to the Children Act 1989 and the Adoption and Children Act 2002 to reflect the creation of the new status of civil partnership.

Clause 74: Parental responsibility, children of the family and relatives

147.     This clause amends various provisions of the Children Act 1989 ("the Children Act") to include civil partners in a way that corresponds to the provisions that apply to married couples.

148.     Subsection (2) amends section 4A (1) of the Children Act to enable a civil partner to acquire parental responsibility of their civil partner's child in the same way as a person who is married to the parent of the child (but is not that child's parent).

149.     Subsection (3) amends the definition of "child of the family" in section 105 (1) of the Children Act to include a child of both civil partners and any other child who has been treated as a child of the family by both civil partners, unless the child had been placed with the civil partners by a local authority or a voluntary organisation as foster parents.

150.     Subsection (4) amends the definition of "relative" in section 105 (1) of the Children Act to replace "by affinity" with "by marriage or civil partnership".

Clause 75: Guardianship

151.     This clause amends section 6 of the Children Act in relation to the revocation and disclaimer of appointments of guardians. Under section 5 (3) and (4) of the Children Act a parent or guardian may appoint any person to act as the guardian of a child in his or her place. This clause inserts a provision into section 6 of the Children Act so that where a person appoints his or her civil partner to be the guardian of a child that appointment is revoked if the civil partnership is dissolved or annulled, unless the appointment itself indicates that the dissolution or annulment of the civil partnership should not affect the appointment.

Clause 76: Entitlement to apply for a residence or contact order

152.     This clause amends section 10 (5) of the Children Act to add a civil partner in a civil partnership to the class of people who are able to apply for a residence or contact order. The amendment enables civil partners to apply for an order whether or not the civil partnership subsists.

Clause 77: Financial provision for children

153.     This Clause amends Schedule 1 to the Children Act by adding to the definition of periodical payment orders in paragraph 2(6) of that Schedule orders under the provisions of Parts 1 and 8 of Schedule 6 and under Schedule 7 to this Bill. This will enable courts to make orders for periodical payments to be made from one civil partner to the other or to a child of the family, or to a particular person for the benefit of a child of the family.

154.     Subsection (3) amends Paragraph 15 (2) to Schedule 1 of the Children Act so that a local authority will not be able to make a contribution towards the maintenance of a child who is subject to a residence order where the person with whom the child is living is a parent of the child, or the husband or wife or civil partner of a parent of the child.

155.     Subsection (4) extends the meaning of "parent" in paragraph 16(2) of Schedule 1 to the Children Act to include any civil partner in a partnership, whether it is still in existence or whether it has been brought to an end, for whom the child concerned is a child of the family.

Clause 78: Adoption

156.     This clause amends the Adoption and Children Act 2002 ("the 2002 Act") to ensure that the status of civil partnerships are recognised for the purposes of adoption.

157.     Subsection (2) inserts an additional sub-section in section 47 of the 2002 Act so that an adoption order cannot be made in respect of any person who is in a civil partnership or has been in a civil partnership.

158.     Subsection (3) amends section 51(1) of the 2002 Act to allow for an adoption order to be made on the application of one person where that person is over the age of 21 years and is not married or is not a civil partner.

159.     Subsection (4) inserts an additional sub-section in section 51 of the 2002 Act to set out the circumstances where one member of a civil partnership may apply for an adoption order on their own and not as a couple. The circumstances are: where their civil partner either cannot be found; they have separated and are living apart, and the separation is likely to be permanent or the person's civil partner is incapable of making an application for an adoption order because of physical or mental ill-health.

160.     Subsection (5) amends section 64 of the 2002 Act to include a civil partnership. Section 64(5) enables fees to be prescribed in respect of persons who apply to the adoption agency under sections 60, 61 or 62 for information. The exception is that the adopted person cannot be charged in respect of any information disclosed to him about any person who but for his adoption would be related to him by blood, including half-blood, marriage or civil partnership.

161.     Subsection (6) amends section 74(1) of the 2002 Act to ensure that the status conferred as a consequence of an adoption order does not apply for the purposes of either Schedule 2 to the Civil Partnership Bill (prohibited degrees of relationship) or Schedule 1 to the Marriage Act 1949.

162.     Subsection (7) amends section 79(7) of the 2002 Act to ensure that an adopted person who intends to form a civil partnership can apply to the Registrar General for him to check that the person, with whom the applicant intends to form a civil partnership, does not fall within the prohibited degrees.

163.     Subsection (8) amends section 81 of the 2002 Act to ensure that the meaning of "relative" for the purposes of an entry in the adoption contact register includes a person related by civil partnership.

164.     Subsection (9) ensures that the meaning of "relative" in section 98 of the 2002 Act includes a person related by civil partnership. Section 98 of the 2002 Act amplifies the regulation-making power in section 9 to provide that the appropriate Minister may make regulations in connection with adoptions made before the commencement of sections 56 to 65. Section 98(1) of the 2002 Act provides that regulations may make provision for assisting adults adopted before the appointed day to obtain information about their adoption and to facilitate contact between them and their relatives.

165.     Subsection (10) extends the meaning of "relative" in relation to a child in section 144(1) of the 2002 Act to include people related by civil partnership as well as by marriage. Section 144 of the 2002 Act provides general interpretation.

166.     Subsection (11) amends the definition (for the purposes of that Act) of "couple" in section 144(4) of the 2002 Act to include two people who are civil partners of each other. With the amendment made by the Civil Partnership Bill, a couple means a married couple, two people who are civil partners of each other, or two people, whether of different sexes or of the same sex, living as partners in an enduring family relationship.

Chapter 6 - Miscellaneous

Clause 79: False statements etc. with reference to civil partnerships

167.     Subsection (1) makes it an offence to knowingly make certain false statements or representations for the purpose of procuring the formation of a civil partnership or a record being made in any register relating to civil partnerships, or as a means of forbidding the issue of a civil partnership document or a document required by an Order in Council. For example, a person who signs a declaration that he is free to enter into a civil partnership, knowing that the declaration is false, commits an offence. A person guilty of an offence under subsection (1) is liable on conviction on indictment to imprisonment, for a term not exceeding 7 years, or to a fine (or both) and on summary conviction, to a fine not exceeding the statutory maximum. These provisions are similar to those in section 3(1) of the Perjury Act 1911 under which it is an offence to make false statements or representations with reference to marriage. The effect of subsection (4) is that all the other relevant provisions in the Perjury Act 1911 will apply, without having to replicate them in the Civil Partnership Bill. So, for example, section 7(1) of the Perjury Act, which applies to people who aid, abet etc offences under that Act, would apply to a person who helps another person to commit an offence under clause 79.

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Prepared: 7 July 2004