Clause 80: Housing and tenancies

168.     This clause introduces Schedule 9, which makes amendments to a range of enactments relating to housing and tenancies.

Clause 81: Family Homes and Domestic Violence

169.     This clause introduces Schedule 10, which amends Part 4 of the Family Law Act 1996 and related enactments so that they apply in relation to civil partnerships as they apply in relation to marriages. The amendments will mean that civil partners have the same rights to occupy the civil partnership home, as married persons have to occupy the matrimonial home. In addition civil partners will be able to apply for non-molestation orders and occupation orders. Occupation orders are orders regulating occupation of the home (which may include excluding the respondent from the home and vicinity of the home and prohibiting, terminating or restricting the exercise of the respondent's occupation rights, as appropriate).

Clause 82: Fatal accidents claims

170.     This clause extends the provisions of the Fatal Accidents Act 1976 to include civil partners, so that where a person's death is caused by the wrongful act, neglect or default of another person, a civil partner of the deceased will be able to claim compensation in the same way as a spouse.

171.     Subsections (2) and (3) widen the definition of "dependant" for the purposes of a right of action under the Act to include civil partners and former civil partners of the deceased; and any person (not being a child of the deceased) who was treated by the deceased as a child of the family, in relation to any civil partnership to which the deceased was at any time a party.

172.     Subsection (4) defines "former civil partner" as a person whose civil partnership with the deceased has been annulled or dissolved.

173.     Subsection (5) replaces the reference to a relationship by "affinity" in section 1(5)(a) of the Act with a reference to a relationship "by marriage or civil partnership", for the purposes of clarity.

174.     Subsection (6)(a) enables a civil partner of the deceased to claim bereavement damages. Subsection (6)(b) prevents a parent of a deceased minor from making a claim for bereavement damages where the minor had formed a civil partnership.

Part 3 - Civil Partnerships: Scotland

Introduction

175.     The clauses in this part (Part 3) of the Civil Partnership Bill extend only to Scotland (see clause 252(2)).

Chapter 1 - Formation and Eligibility

Clause 83: Formation of civil partnership by registration

176.     This clause provides that a civil partnership is formed when both persons sign the completed civil partnership schedule before two witnesses aged 16 years or over and an authorised registrar (all being present). Registering as civil partners of each other creates the legal relationship between the two persons, but registration cannot take place unless both persons are eligible to be registered.

Clause 84: Eligibility

177.     Subsection (1) provides that two people are not eligible to register in Scotland as civil partners of each other if -

a)     they are not of the same sex,

b)     they are related in a forbidden degree

c)     either of them is under 16

d)     either of them is married or already in a civil partnership

e)     either is incapable of understanding the nature of a civil partnership

178.     However, subsection (2) provides that subsection (1)(a) and (1)(b) 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 forbidden degrees of relationship.

179.     Subsections (4) and (5) set out the circumstances in which persons over 21, within the relationships of affinity set out in paragraphs 2 and 3 of Schedule 11, will not be related in a forbidden degree.

180.     Subsections (6) to (8) apply the provisions of this section and Schedule 11, with appropriate modifications, to the case of a person wishing to form a civil partnership in his acquired gender under the Gender Recognition Act 2004.

Chapter 2 - Registration

181.     The UK has three Registrars General covering Scotland, Northern Ireland and England and Wales. The law concerning registration in Scotland is devolved to the Scottish Parliament. There is separate legislation covering the functions of the Registrar General for Scotland. Consequently, the provisions on civil partnerships reflect (and are internally consistent with) the legislation and procedures that apply in Scotland.

Clause 85: Appointment of authorised registrars

182.     This clause empowers the Registrar General for Scotland, for the purpose of affording reasonable facilities throughout Scotland for registration as civil partners, to appoint such number of district registrars as he thinks necessary, and for any district, one or more assistant registrars, as persons who may carry out such registration.

Clause 86: Notice of proposed civil partnership

183.     This clause closely follows the procedures for civil preliminaries contained in the Marriage (Scotland) Act 1977. It provides procedures for the completion, by each party, of the notice of proposed civil partnership and for the submission, with the prescribed fee, of the notice to the district registrar. The content of the notice may be prescribed by regulations made by the Registrar General for Scotland with the approval of the Scottish Ministers.

Clause 87: Civil partnership notice book

184.     This clause requires the district registrar to enter into "the civil partnership book" such particulars from the notice of proposed civil partnership or the civil partnership certificate as may be prescribed by the Registrar General for Scotland. The Registrar General is to prescribe the form and content of the book.

Clause 88: Publicisation

185.     This clause follows similar provisions in the Marriage (Scotland) Act 1977 about making public the intention to form a civil partnership. The public have a right to know of and be able to object to a proposed civil partnership. The clause provides that the district registrar and the Registrar General must publicise the relevant information (names of intended civil partners and date of intended registration) as soon as practicable. The manner in which the information is to be publicised will be prescribed by the Registrar General. Subject to clause 89, the date on which it is intended to sign the civil partnership document should be a date more than 14 days after publicisation by the district registrar.

Clause 89: Early registration

186.     This clause enables an authorised registrar, provided he is authorised to do so by the Registrar General, on receipt of a written request from one or both of the intended civil partners to fix the date for registering as civil partners at a date earlier than 14 days after the publicisation of the intended date of signing the civil partnership register. It is anticipated that this power will be exercised in similar circumstances to its equivalent under the Marriage (Scotland) Act 1977, typically where one of the proposed civil partners is seriously ill and not expected to recover.

Clause 90: Objections to registration

187.     This clause provides procedures for any person to make an objection in writing to the district registrar to the issue of a civil partnership schedule to prevent the registration as civil partners. The objection must relate to a lawful impediment.

Clause 91: Place of registration

188.     This clause provides that a civil partnership document may be signed at a registration office or at any place which the intended civil partners and the local registration authority agree. However, the place must not be one where people meet for public worship or be known or regarded by persons of a religious faith as a place of reverence.

Clause 92: The civil partnership schedule

189.     This clause provides for the completion by the district registrar of the civil partnership schedule. This may be done providing the relevant district registrar has no concerns over the capacity of the couple to enter into the civil partnership, that there are no outstanding objections and that the required period of publicisation has expired.

Clause 93: Further provision as to registration

190.     This clause requires the persons who intend to form a civil partnership to confirm that (to the best of their knowledge) the particulars set out in the civil partnership schedule are correct.

191.     This clause also requires the authorised registrar, as soon as practicable after the Schedule has been signed, to cause the particulars to be entered into the "civil partnership register". The form and content of the register will be prescribed by the Registrar General for Scotland. A prescribed fee will also be paid by the intended civil partners for the registration of their relationship.

Clause 94: Civil partnership with former spouse

192.     This clause provides for the signing of a civil partnership schedule to take place quickly, where the couple were previously married to each other, one of them has changed gender under the provisions of the Gender Recognition Act 2004 and the marriage has subsequently ended, and the couple wish to recreate their legal status with each other by entering into a civil partnership. The aim is to minimise, as much as possible, the time between the end of the marriage and the creation of the civil partnership.

193.     The clause sets out the procedure for effecting the signature of the civil partnership document in the circumstances described above. The signing of the civil partnership schedule can take place on the same day that both notices of proposed civil partnerships are given, or if they are given on different days, on the day the second notice is given.

Clause 95: Certificates of no impediment for Part 2 purposes

194.     This clause applies where 2 people intend to register as civil partners of each other and one ("A") resides in Scotland and the other ("B") resides in England or Wales. The clause would allow "A" to submit notice in Scotland under the clause 84 provisions. If the district registrar is satisfied that there is no impediment to "A" registering as "B's" civil partner, the district registrar must issue a certificate that there is not known to be any impediment. The certificate is not to be issued earlier than 14 days after receipt of the notice, except in circumstances relating to clause 94(1) and "A" elects for the certificate to be issued as soon as possible. The form of the certificate is to be prescribed by the Registrar General. The clause also allows for objection to be made to the district registrar in writing by any person before a certificate is issued. The district registrar is obliged to take into account any objection when he is deciding whether he is satisfied that there is no legal impediment to the registration as civil partners.

Clause 96: Application of certain sections of 1965 Act to civil partnership register

195.     This clause provides that certain provisions of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 apply to the civil partnership register as they apply in relation to registers of births, deaths and marriages. These provisions enable the examination of the civil partnership register by district examiners, the searching of indexes kept by registrars or the Registrar General for Scotland and the application to the register of the process of correction provided by section 44 (Register of Corrections etc.).

Clause 97: Correction of errors in civil partnership register

196.     This clause provides that no alteration may be made to the civil partnership register except as authorised by or under an Act (including an Act of the Scottish Parliament). It enables the district registrar to correct a clerical error or an error of a kind prescribed by the Registrar General for Scotland. The Registrar General may also authorise district examiners to correct any specified errors which they discover during an examination under section 34 of the 1965 Act.

Clause 98: Offences

197.     This clause provides for certain offences in relation to civil partnerships. Subsections (1) and (2) set out the offences a person, if they act knowingly, may possibly commit under civil partnership proceedings. Subsection (3) sets out the maximum penalties that may be imposed on a person found guilty under Subsection (1) or (2). Subsection (4) confirms the time limit during which a prosecution may commence.

Chapter 3 - Occupancy Rights and Tenancies

Clause 99: Occupancy Rights

198.     This clause sets out the rights that civil partners have to occupy the family home of the civil partnership. The clause applies where one of the civil partners is either entitled to occupy the family home, or permitted to do so by a third party, and the other civil partner has no such entitlement or permission. An example of this would be where the family home is owned or leased in the name of one civil partner only. The civil partner who is entitled to occupancy or permitted occupancy by a third party is called the "entitled partner". The civil partner who is not entitled to occupancy or permitted occupancy by a third party is called the "non-entitled partner".

199.     Subsection (1) sets out that non-entitled partners have the right to continue to occupy the family home (if they are already doing so), or have the right to enter and occupy the family home (if they are not already doing so). If the entitled partner has occupancy rights by virtue of permission of a third party, the non-entitled partner does not require the permission of the third party to exercise the rights conferred by subsection (1).

200.     Subsection (2) means that this right also extends to any child of the family.

201.     Subsection (3) covers a situation whereby the entitled partner shares a right of occupancy with another person who is not the civil partner. In this situation, the rights explained in subsection (1) only apply if that other person waives their right to occupy the family home in favour of the entitled partner.

202.     Subsection (4) provides recourse to the court, if the entitled partner refuses to let their civil partner enter the home. The latter can apply to the court for an order, as explained in clause 101.

203.     Subsection (5) allows the non-entitled partner to renounce their rights under this clause in writing in certain circumstances. Subsection (6) provides that such a statement must be made before a notary public and made without coercion.

204.     Subsection (7) provides definitions of "child of the family" and "family" and Subsection (8) defines what a notary public is.

Clause 100: Occupancy: subsidiary and consequential rights

205.     This clause sets out the rights ancillary to the occupancy rights of a non-entitled partner in relation to the family home. Subsection (1)(a) to (f) list the duties that a non-entitled partner can undertake without the permission of the entitled partner. Subsection (2) details the circumstances in which if an obligation has been performed or enforced by a non-entitled partner, it will be treated in the same way as if it had been made by the entitled partner.

206.     Subsection (3) provides that, where there is an entitled and non-entitled partner, the court may make an order apportioning costs incurred or to be incurred by either civil partner if they carry out any of the duties in subsection (1)(a) to (d) without the consent of the other civil partner, or perform any other activity in respect of the family home with the consent of the other civil partner.

207.     Subsection (4) sets out the situation as it applies to civil partners where both are entitled or permitted by a third party to occupy a family home. This subsection sets out what each civil partner can do and the restrictions on the court in making an order.

208.     Subsection (5) covers the situation where one civil partner owns or hires goods such as furniture in a family home. This Subsection sets out what the other civil partner may do in connection with these goods. It also sets out how the court can treat such goods if making an order to apportion expenditure in respect of these goods.

209.     Subsections (6) to (9) specify additional criteria relevant to previous subsections of this clause.

Clause 101: Regulation by court of rights of occupancy of family home

210.     This clause sets out the regulation by the court of rights of occupancy of the family home. Subsections (1) and (2) detail the type of order a civil partner may apply for from the court in connection with occupancy of the family or possession or use of goods owned or hired by one of the civil partners.

211.     Subsection (3) sets out the factors that the court will consider in determining an application for an order. Subsection (4) gives the court power to make an interim order under certain circumstances. Subsection (5) prevents the court from making an order, if the effect of that order would be to exclude the non-applicant civil partner from the family home.

212.     Subsection (6) allows the court, on the granting of an order under subsections (3) or (4), to grant a warrant allowing a messenger-at-arms or sheriff officer to enter the family home or other premises to search for and take possession of the item required to be delivered and to deliver the item in accordance with the order that is granted. Subsection (7) provides that such a warrant be executed only after the end of a period specified in the order for delivery.

213.     Subsection (8) provides that the court can order one civil partner to pay compensation to the other if its appears to the court that the latter has suffered a loss of occupancy rights, impaired occupation of the family home or impaired use of the items in the civil partner's possession as a consequence of any act or default on the part of the other civil partner.

214.     Subsection (9) provides for a civil partner to renounce rights to apply under subsection (2) for the possession or use of any item as detailed in that subsection.

Clause 102: Exclusion orders

215.     This clause provides that either civil partner in the family home can apply to the court for an order which suspends the occupancy rights of the other civil partner in a family home. Subsection (2) sets out that the court is to make an exclusion order if it appears necessary to protect the applicant or any child of the family from the conduct of the other civil partner. This is subject to subsection (3) which sets out where it would appear unjustified or unreasonable to make an exclusion order.

216.     Subsection (4) sets out the types of exclusion order that the court can grant, where this is necessary. Subsection (5) sets out further directions that the court may attach when making an exclusion order. Subsection (6) gives the court power to make an interim order and sets out that subsections (4) and (5) will apply in the same way to an interim order as to an exclusion order. Subsection (7) sets out that an interim order can only be made if the non-applicant partner has been given an opportunity to be heard or represented before the court.

217.     If both civil partners are permitted by a third party to occupy the family home, subsection (8) makes it incompetent for one civil partner to bring an action to eject the other from the family home. This is without prejudice to subsections (1) and (6).

Clause 103: Duration of orders under sections 101 and 102

218.     This clause sets out the duration of orders made under clauses 101 and 102. Subsection (1) gives the court the power to vary or cancel an order made under these clauses, at the request of one of the civil partners. Subsection (2) sets out the circumstances where such an order (unless varied or cancelled) will cease to have effect. In addition, subsection (3) provides that where an order has been granted under clause 101(3) or (4), which grants possession of use or items, that this will cease if a third party revokes permission for these possessions to be retained in the family home.

Clause 104: Continued exercise of occupancy rights after dealing

219.     This clause sets out the occupancy rights in relation to dealings with third parties. Subsection (1) provides protection for the non-entitled partner with occupancy rights in relation to the entitled partner's dealings with third parties. Subsection (2) provides a definition of dealing for the purposes of subsection (1). Subsection (2) also provides that a civil partner is not an entitled partner where they are only entitled to occupy the family home by virtue of permission from a third party, or they share entitlement to occupy along with a person who is not the other civil partner, irrespective of whether that person has waived their rights. Subsections (3) and (4) deal with the circumstances in which this clause does not apply.

Clause 105: Dispensation with civil partner's consent to dealing

220.     This clause allows the court to dispense with the non-entitled partner's consent to a dealing which has taken place or is proposed in certain circumstances. Subsection (1) sets out the circumstances under which this can occur. Subsection (2) defines when a non-entitled partner is to be regarded as having unreasonably withheld consent. Subsection (3) places an onus on the court to consider all the circumstances of the case in considering whether to make an order. Subsection (4) provides that where the entitled partner makes an application to the court for an order under this clause and the non-entitled partner has brought proceedings in court for enforcement of occupancy rights, the non-entitled partner's proceedings will not be decided until the conclusion of the application by the entitled partner.

Clause 106: Interests of heritable creditors

221.     This clause explains the rights that a heritable creditor has where there is an interest in the family home. Subsection (1) provides the grounds under which a creditor, who has an interest in the family home, can seek an order from the court for the non-entitled partner to make a payment, where such a payment is due. Subsections (2) to (4) attach conditions and exceptions to this situation.

Clause 107: Provisions where both civil partners have title

222.     This clause covers the situation where both civil partners have title of the property and are entitled to occupy the family home.

Clause 108: Rights of occupancy in relation to division and sale

223.     This clause explains the circumstances that the court must take into account where a civil partner brings an action for the division and sale of a family home owned jointly with the other civil partner. The clause allows the court to refuse to grant a decree, to postpone granting a decree or granting a decree with certain conditions applied.

Clause 109: Adjudication

224.     This clause protects the interests and rights of a civil partner where a decree of adjudication has been pronounced by the court on property or furnishing belonging to the other civil partner, which the former uses.

Clause 110: Transfer of tenancy

225.     This clause allows the court to make an order to transfer the tenancy of a family home to the non-entitled partner and provides for the non-entitled partner to make an appropriate payment to the entitled partner in compensation. The clause sets out the circumstances under which this can apply and the consideration that the court should give.

Chapter 4 - Interdicts

Clause 111: Civil partners: competency of interdict

226.     This clause means that the Court of Session or the sheriff can grant a relevant interdict in respect of a couple living together in a civil partnership. A relevant interdict for these purposes and for the purposes of clause 112, is an interdict which is designed to prevent any inappropriate conduct on the part of one civil partner towards the other or a child of the family, or to prevent a civil partner from returning to the family home or its vicinity.