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

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Clause 112: Attachment of powers of arrest to relevant interdicts

227.     This clause allows the court to attach a power of arrest to any relevant interdict on the application of a civil partner. The clause sets out the conditions which apply to this power.

Clause 113: Police powers after arrest

228.     This clause sets out the action that the police may take where a non-applicant civil partner has been arrested as set out in subsection (4) of clause 112. It also provides that the facts and circumstances that gave rise to the arrest will be reported to the procurator fiscal who will determine whether criminal proceedings should follow.

Clause 114: Procedure after arrest

229.     This clause covers the procedure that arises where the non-applicant civil partner is not released after arrest, but where the procurator fiscal decides that no criminal proceedings should follow.

Chapter 5 - Dissolution, Separation and Nullity

Clause 115: Dissolution

230.     This clause provides that an action for the dissolution of a civil partnership can be brought in the Court of Session or in the sheriff court. It sets out the terms under which a court may grant a decree, and when the irretrievable breakdown of a civil partnership is taken to be established.

Clause 116: Encouragement of reconciliation

231.     This clause provides that if it seems to the court that it is likely that the civil partners could reconcile, the court must continue the action for as long as it thinks is necessary to enable the couple to attempt reconciliation. Subsection (2) provides that where a couple still wish to dissolve their civil partnership after a period of living together again (during the court action), that that period will not be taken into account for the purposes of the action.

Clause 117: Effect of resumption of cohabitation in certain actions

232.     Subsection (1) provides that the irretrievable breakdown of a civil partnership on grounds of desertion for a continuous two year period will not be taken to be established if, at the end of that two year period, the parties start living together again and do so at any time after the end of the three months which begin from the date the parties resumed living together. Subsection (2) applies clause 116(2) to subsection (1).

233.     Subsection (3) makes provision that where dissolution of a civil partnership is sought on the basis of desertion or non-cohabitation for periods of time as provided for in clause 115(3)(b) to (d), the court should not take account of any resumption of cohabitation within the periods provided for in clause 115(3)(b) to (d) so long as that resumption amounts in total to less than six months. The resumption of cohabitation can be for one period of up to six months, or more than one period totalling up to six months. But any such resumption of cohabitation within the periods provided for in clause 115(3)(b) to (d) will be excluded from calculation of the periods of non-cohabitation for the purposes of clause 115(3).

Clause 118: Dissolution following on decree of separation

234.     If a couple that has a decree of separation subsequently decide to dissolve their civil partnership, this clause provides that they may apply to the court giving the same evidence upon which a decree of separation was based. The court can treat a decree of separation as proof of the facts under which the decree was granted. However, this does not entitle a court to grant a decree of dissolution of a civil partnership without receiving evidence from the civil partner seeking the dissolution.

Clause 119: Registration of dissolution of civil partnership

235.     This clause requires the Registrar General for Scotland to maintain a register of decrees of dissolution of civil partnership (Register of Dissolutions of Civil Partnership). The Registrar General is also required to make and keep an alphabetical index of entries to this register. The form of the register is to be prescribed. On payment of the prescribed fee to the Registrar general, the index to the register may be searched and an extract of any entry provided. An extract of an entry in the register is sufficient evidence of the decree of dissolution to which it relates. The Registrar General may also delete, amend or substitute an entry in the register.

Clause 120: Nullity

236.     This clause sets out that if a couple register as civil partners in Scotland despite not meeting the eligibility criteria detail in clause 84, the civil partnership will be void, meaning that it will be treated as never having taken place. Either of the couple or another interested person may bring an action in the Court of Session to have the civil partnership declared void.

Clause 121: Validity of civil partnerships registered outside Scotland

237.     This clause determines the rules to be applied when determining whether, under the law of Scotland, a civil partnership which was not formed in Scotland is void or voidable. If the civil partnership is void or voidable, a court in Scotland which has jurisdiction under clauses 211 or 217 to 219 may make a declarator of nullity in respect of the civil partnership under the inherent declaratory power held by the Court of Session.

238.     Subsection (1) ensures that a civil partnership which was registered in England and Wales is void or voidable for the purposes of the law of Scotland if that is the effect of the English provisions in clauses 49 and 50.

239.     Subsection (2) ensures that a civil partnership which was registered in Northern Ireland is void or voidable for the purposes of the law of Scotland if that is the effect of the provisions applicable in Northern Ireland.

240.     Subsection (4) deals with the formation of civil partnerships 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 Scottish law if the civil partnership had actually been formed in that part of the United Kingdom.

241.     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. For a partnership formed at a British consulate etc., the condition is that one party must be a United Kingdom national as defined in clause 237. For a partnership formed 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 formed, or falls within certain other related categories as set out in clause 203(2)(a).

242.     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).

243.     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 overseas relationship was registered, 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" in subsection (9)).

Clause 122: Financial provision after overseas dissolution, annulment or separation

244.     This clause introduces Schedule 12, which relates to applications for financial provision in Scotland after a civil partnership has been dissolved or annulled, or 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 6 - Miscellaneous and Interpretation

Clause 123: Regulations

245.     This clause provides that, in Chapters 2 and 5 of the Act, "prescribed" means prescribed in regulations made by the Registrar General for Scotland with the approval of the Scottish Ministers. A statutory instrument containing such regulations is subject to annulment in pursuance of a resolution of the Scottish Parliament.

Clause 124: Attachment

246.     This clause protects the interests and rights of a civil partner where an attachment has been made on property or furnishing belonging to the other civil partner, which the former uses.

Clause 125 - Promise of agreement to enter into a civil partnership

247.     This clause sets out that if a couple make an agreement to register their civil partnership, it will not confer any rights or obligations under Scots law. If the promise or agreement to form a civil partnership is broken, no action can be brought in a court in Scotland and this is irrespective of the law applicable to the promise of agreement.

Clause 126: Lord Advocate as party to action for nullity or dissolution of civil partnership

248.      This clause makes provision for intimation on the Lord Advocate of proceedings for either declarator of nullity or dissolution of a civil partnership. Subsection (1) provides that the Lord Advocate can become a party to either of these kinds of proceedings, and conduct his case in such manner as he considers appropriate. Subsection (2) allows the court to intimate these proceedings on the Lord Advocate if the court thinks it necessary to assist in the determination of the proceedings. Subsection (3) provides that, in any case where the Lord Advocate does become a party to the proceedings, no expenses can be claimed against him.

Clause 127: Civil partner of accused a competent witness

249.     This clause provides that the civil partner of an accused person may be called as a witness by the accused, a co-accused, or the prosecutor. If a civil partner of an accused is called as a witness, they cannot be forced to give evidence by the co-accused or the prosecutor, and cannot be forced to reveal communications between the civil partners while the civil partnership continues. If a civil partner of an accused person does not give evidence, neither the defence nor the prosecutor can take advantage of this in any submissions to the court.

Clause 128: Assurance policies: Scotland

250.     This clause ensures that civil partners are recognised in terms of assurance policies in the same way that spouses are at present.

Clause 129: Council Tax: liability of civil partners

251.     This clause adds a section to the Local Government Finance Act 1992 so that civil partners (and persons living together as such) are jointly and severally liable for the payment of council tax on a property in the same way as spouses (and persons living together as such).

Clause 130: General provisions as to fees

252.     This clause enables a district registrar to refuse to comply with any application made under Part 3 until the appropriate fee has been paid to him. For example, this reflects section 19(2) of the 1977 Act which provides that an authorised registrar should not solemnise a marriage unless the prescribed fee has been paid. The clause also enables the Registrar General to remit fees in cases of hardship. That provision follows what is provided in section 54 of the 1965 Act.

Clause 131: Interpretation of this Part

253.     This clause defines certain expressions used in Part 3 (Civil Partnership: Scotland).

Clause 132: The expression "relative" in the 1965 Act

254.     This clause provides that the definition of "relative" in section 56(1) of the 1965 Act should include "a civil partner and anyone related to the civil partner of the person". In practical terms, this would (for instance) enable a civil partner or a relative of a civil partner to act as the informant for the registration of a death under section 23 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965.

Part 4 - Civil Partnership: Northern Ireland


255.     The clauses in this Part (Part 4) of the Civil Partnership Bill extend only to Northern Ireland (see clause 252(4)).

Chapter 1 - Registration

Clause 133: Formation of civil partnership by registration

256.     This clause provides that a civil partnership is created when both persons sign the completed civil partnership schedule before two witnesses and the registrar (all being present). The civil partnership schedule should then be signed by both witnesses and the registrar.

257.     Subsection (4) provides that the registrar must register the civil partnership as soon as possible after the signing of the civil partnership schedule.

258.     Subsection (5) states that no religious service is to be used when the civil partnership schedule is being signed.

Clause 134: Eligibility

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

    a)     they are not of the same sex,

    b)     either or them is already a civil partner or lawfully married

    c)     either of them is under 16

    d)     they are within prohibited degrees of relationship (as determined under Schedule 13 - see subsection (3)))

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

260.     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 135: Notice of proposed civil partnership

261.     This clause provides that each party must give the registrar a notice of proposed civil partnership. The notice must be in a prescribed form and accompanied by a prescribed fee and any other relevant information. In prescribed cases the notice must be given to the registrar in person.

Clause 136: Civil partnership notice book and list of intended civil partnerships

262.     This clause requires the registrar to record in the civil partnership notice book such particulars as may be prescribed, taken from every civil partnership notice received and the date on which each civil partnership notice is received.

263.     Subsection (3) requires the registrar to publicise a list containing relevant information (names of intended civil partners and date of intended signing of the civil partnership schedule) in relation to each proposed civil partnership for which the registrar has received a civil partnership notice.

264.     Subsection (5) provides that any person claiming to have reason to object to a proposed civil partnership may inspect any entry relating to the civil partnership in the civil partnership notice book without charge.

Clause 137: Power to require evidence of name etc.

265.     This clause provides for the registrar to request specified evidence from a proposed civil partner to verify certain information contained in a civil partnership notice. This power to request evidence is only exercisable before the civil partnership schedule has been issued.

Clause 138: Objections

266.     This clause provides that any person may make an objection in writing to the registrar to the issue of a civil partnership schedule to prevent a civil partnership registration from proceeding. The objection must relate to a lawful impediment.

Clause 139: Civil partnership schedule

267.     This clause provides for the completion by the registrar of the civil partnership schedule. This may be done providing the registrar is satisfied that there is no legal impediment to the formation of the civil partnership or the Registrar General has directed him to proceed.

Clause 140: Place of registration

268.     This clause provides that a civil partnership document may be signed at a registration office or at any place approved for that purpose by the local registration authority. In some cases of serious illness or disability, as supported by a medical statement, the civil partnership may be registered at the place where the person concerned is located.

Clause 141: Parental etc. consent where proposed civil partner under 18

269.     This clause sets out the provisions for consent requirements where a person wishing to form a civil partnership is under eighteen years of age. The clause gives effect to Schedule 14 which identifies the appropriate persons or bodies who may give consent and makes provision for orders dispensing with consent and for recording consents.

270.     Subsection (4) confirms that a ward of court requires the consent of the High Court to register as a civil partner. Subsection (5) provides a definition of "young person" as a person who is under eighteen.

Clause 142: Validity of registration

271.     This clause provides that once a civil partnership registration has been recorded, its validity must not be questioned in any legal proceedings commenced after that time on the ground of any contravention of a provision of or made under the Bill.

Clause 143: Corrections and cancellations

272.     This clause provides that regulations may make provision for the Registrar General or other registrars to make corrections to the records of civil partnership registrations and that the registration of a void civil partnership must be cancelled by the Registrar General or by the registrar as directed by the Registrar General.

Clause 144: Interpreters

273.     This clause provides that a registrar may use an interpreter to assist in relation to the registration of a civil partnership.

274.     Subsections (2) and (3) provide that the interpreter must confirm his ability to act as an interpreter in the relevant language by signing a statement prior to the registration and must sign a certificate after the registration to the effect that he faithfully acted as an interpreter.

Clause 145: Detained persons

275.     This clause provides that a detained person may register as a civil partner at the place where that person is detained provided that the civil partnership notice is accompanied by a supporting statement.

276.     Subsection (2) sets out that a supporting statement is one made in a prescribed form by a responsible authority (as defined by subsection (3)) 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.

277.     Subsection (4) sets out that the registrar must notify the Registrar General upon receipt of a civil partnership notice and supporting statement, and must not complete a civil partnership schedule until directed to do so by the Registrar General.

Clause 146: Certificates of no impediment for Part 2 purposes

278.     This clause makes provision for a registrar in Northern Ireland to receive notice from a person living in Northern Ireland who wishes to register as a civil partner in England and Wales. Upon receipt of notice of an intended civil partnership, the registrar in Northern Ireland may issue a certificate to the person resident in Northern Ireland stating that there is no impediment under Northern Ireland law to that person registering as a civil partner. Before such a certificate is issued by the registrar any person may submit a written objection to its issue.

Clause 147: Registration districts and registration authorities

279.     This clause provides definitions for registration districts and registration authorities in Northern Ireland. Subsection (2) states that local registration authorities shall exercise their powers as agents of the Department of Finance and Personnel.

Clause 148: Registrars and other staff

280.     This clause makes provision for the appointment or removal, by a local registration authority, of a registrar, one or more deputy registrars and other staff as may be required for the signing of civil partnership documents. The powers of appointment and removal are subject to the approval of the Registrar General.

Clause 149: Records and documents to be sent to Registrar General

281.     This clause provides that any person must comply with a request from the Registrar General to provide any record or document relating to a civil partnership.

Clause 150: Annual report

282.     This clause provides that the Registrar General must submit to the Department of Finance and Personnel an annual report of the number of civil partnership registrations in each year. Subsection (2) provides that each annual report must then be laid before the Northern Ireland Assembly.

Clause 151: Searches

283.     This clause provides that the Registrar General and other registrars must ensure that indexes to civil partnership registration records are made available for public inspection.

284.     Subsections (2) and (3) provide that such indexes may be searched and documents relating to a civil partnership registration may be requested upon payment of a prescribed fee. Subsections (4) and (5) provide that any document produced by the Registrar General must be stamped with the seal of the General Register Office and judicial notice must be taken of it.

Clause 152: Proof of civil partnership for purposes of certain statutory provisions

285.     This clause makes provision for a civil partner, upon application to the Registrar General and payment of a prescribed fee, to obtain a document proving the civil partnership registration for the purposes of any prescribed statutory provision.

Clause 153: Fees

286.     This clause enables the Department of Finance and Personnel to make an order prescribing fees payable in relation to civil partnership registrations. The order must be approved by resolution of the Assembly.

Clause 154: Offences

287.     This clause creates offences and associated penalties in relation to the registration of civil partnerships.

288.     Subsection (1) creates an offence in relation to the civil partnership schedule.

289.     Subsection (2) creates an offence in relation to the requirement for an official civil partnership registrar to officiate at the signing of the civil partnership schedule.

290.     Subsection (3) sets out the maximum penalty that may be imposed for these offences.

291.     Subsection (4) specifies the time-limit within which a prosecution may be brought.

Clause 155: Regulations:

292.     This clause provides for the Department of Finance and Personnel, by regulations, to make any necessary provision in relation to registration as civil partners in Northern Ireland. Regulations may also prescribe the fees payable in connection with Part 4 of the Bill

Clause 156: Interpretation

293.     This clause provides definitions of various terms which are used in this Chapter.

Chapter 2 - Dissolution, Nullity and Other Proceedings

Clause 157: Powers to make orders and effect of orders

294.     This clause lists the orders that the court can make to bring a civil partnership to an end or to formally recognise the separation of the parties and their effects, which are as follows:

    a)     A dissolution order, which when made final will bring civil partnership to an end.

    b)     A nullity order, which when made final will annul a civil partnership which is either void or voidable.

    c)     A presumption of death order, which when made final will dissolve the civil partnership on the ground that one of the partners is presumed to be dead.

    d)     A separation order, which provides for the separation of the civil partners, but will not allow either civil partner to marry or to form another civil partnership.

295.     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 158 [(The period before conditional orders may be made final)].

296.     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. The civil partnership is to be treated as if it had existed up to that date.

297.     "The court" is ascribed the meaning given in clause 183 (subsection (4)), namely the High Court or a designated county court. Subsection (5) makes it clear that the powers of the court under this clause are subject to the court having jurisdiction under clauses 211 and clauses 220 to 224 of the Bill.

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Prepared: 7 July 2004