|Civil Partnership Bill [HL] - continued
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Clause 158: The period before conditional orders may be made final
298. 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. Subsection (2) 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 159: Intervention by the Crown Solicitor
299. This clause provides for the intervention of the Crown Solicitor in proceedings where an application has been made for a dissolution, nullity or presumption of death order. The court may involve the Crown Solicitor where it considers it necessary or expedient to have any question in relation to the case fully argued by counsel appointed by the Crown Solicitor, under the directions of the Attorney General. Any person may also give information to the Crown Solicitor on relevant issues at any time before the order has been made final and the Crown Solicitor 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 Crown Solicitor.
Clause 160: Proceedings before order has been made final
300. 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 Crown Solicitor, 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.
301. 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 158 has not yet expired, but is subject to the restrictions imposed in clause 168(4) (relating to financial provision in separation cases) and clause 181 (restrictions on the making of orders affecting children).
Clause 161: Time bar on applications for dissolution orders
302. This clause states that it will not be possible for an application for dissolution of a civil partnership to be made until at least 2 years after the date of formation of the civil partnership. However, matters which occurred within this 2 year period may be used in support of the application.
Clause 162: Attempts at reconciliation of civil partners
303. 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 (3) provides that if during any adjournment, the parties resume living in the same household, no account will be taken of this fact for the purposes of the proceedings.
304. Subsection (4) provides that this power to adjourn is additional to any other power of adjournment.
Clause 163: Consideration by the court of certain agreements or arrangements
305. This clause provides that rules of court may enable the court to consider an agreement made by the civil partners in connection with the dissolution of the civil partnership or with their separation and to express an opinion about whether the agreement is reasonable or give other directions as it thinks fit.
Clause 164: Dissolution of civil partnership which has broken down irretrievably
306. 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.
307. 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.
308. 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):
309. 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.
310. Subsection (6) provides that the court must consider the oral testimony of the applicant before making a dissolution order, unless there are special reasons to dispense with such testimony.
Clause 165: Supplemental provisions as to facts raising presumption of breakdown
311. Subsections (1) and (2) provide that where an applicant alleges that their civil partner has behaved in such a way that they cannot reasonably be expected to live with him or her, 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 that fact is proven.
312. 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.
313. 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.
314. 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).
315. 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 166: Dissolution order not precluded by previous separation order etc.
316. This clause provides that where a separation order, an order for financial relief in a court of summary jurisdiction or an occupation order under Articles 11 or 15 of the Family Homes and Domestic Proceedings (Northern Ireland) Order 1998 has been made, either civil partner may 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.
317. Under subsection (3) the court may treat the order made previously as sufficient proof of the facts alleged in support of the application but must not make the order without receiving evidence from the applicant.
318. 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.
319. 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 Articles 11 or 15 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 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 167: Refusal of dissolution in 5 year separation cases on grounds of grave hardship
320. 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 168: Proceedings before order made final: protection for respondent in separation cases
321. 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.
322. 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 or that there are circumstances making it desirable to make the order final without delay. Subsection (8) provides that if the court will not make an order under subsection (4), it must, on the applicant's application make an order declaring that it is not satisfied to make an order under subsection (4).
323. Under subsection (5) the court must not declare it is satisfied that the order should be made final without delay unless it has obtained an undertaking from the applicant to bring the question of financial provision for the respondent before the court within a specified time.
324. Subsections (6) and (7) provide that where an application has been made for a dissolution order on the basis of 2 years' separation or 5 years separation, and the court makes a final order without making an order under subsection (4), the final order is voidable at the instance of the respondent or the court. No person may challenge the validity of the final order on the grounds that subsections (4) and (5) were not satisfied.
Clause 169: Grounds on which civil partnership is void
325. This clause sets out the grounds on which a civil partnership will be void (and therefore invalid) under the law of Northern Ireland, where the parties registered as civil partners of each other in Northern Ireland.
326. Paragraph (a) provides that the civil partnership will be void if, at the time when the two people registered as civil partners in Northern Ireland, they were not eligible to register as civil partners of each other under the requirements set out in clause 134.
327. 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 schedule not being duly issued, the place of registration not being the place specified in the civil partnership schedule, or a registrar not being present at the registration.
Clause 170: Grounds on which civil partnership is voidable
328. 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 Northern Ireland. The grounds are as follows:
Clause 171: Bars to relief where civil partnership is voidable
329. 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.
330. 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.
331. 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.
332. 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 172: Proof of certain matters not necessary to validity of civil partnership
333. This clause provides that that where two people have registered as civil partners in Northern Ireland it is not necessary for them to provide evidence that any consent required under clause 141 (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 properly appointed registrar. No evidence may be given in any nullity proceedings to disprove either of these facts.
Clause 173: Presumption of death orders
334. 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 174: Separation orders
335. 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 175: Effect of separation order
336. 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 176: Declarations
337. 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 Northern Ireland either can or cannot be recognised in Northern Ireland.
338. 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 177: General provisions as to making and effect of declarations
339. This clause provides that where an application is made under clause 176 and the proposition put forward is proved to the satisfaction of the court, the court must make the order requested unless it is contrary to public policy for it to do so. When an application for a declaration is not proved the court must not make any declaration which has not been applied for. The court cannot make a declaration that a civil partnership was void at the inception, and nothing in the provisions relating to declarations will prevent the court making a nullity order in respect of the civil partnership.
Clause 178: The Attorney General and proceedings for declarations
340. This clause provides that the court may direct that the appropriate papers in relation to any case where an application is made for a declaration should be sent to the Attorney General. The Attorney General may either intervene in the proceedings as thought necessary or argue before the court in respect of any matter 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 179: Supplementary provisions as to declarations
341. This clause provides for rules of court to determine the form of an application for a declaration under clause 176. 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, and must make provision for an appeal to the Court of Appeal from any declaration or dismissal of an application made by a county court.
342. Subsection (3) provides that no proceedings will affect any final order or judgement already given. Subsection (4) provides that the court may direct that the whole or part of any application may be heard in private and subsection (5) that any application to have the proceedings heard in private must itself be heard in private unless the court directs otherwise.
343. Subsections (6) to (7) deal with the jurisdiction of the Court of Appeal to hear appeals from a decision of a county court in respect of an application under clause 176.
344. Subsection (8) defines family proceedings rules.
Clause 180: Relief for respondent in dissolution proceedings
345. 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 181: Restrictions on making orders affecting children
346. 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 (Northern Ireland) Order 1995 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 182: Parties to proceedings under this Chapter
347. 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.
Clause 183: The court
348. Subsection (1) defines "the court" for the purposes of Chapter 2 as being the High Court or a county court designated by the Lord Chancellor as a civil partnership proceedings county court and subsection (5) defines "civil partnership proceedings county court" as any such county court.
349. Subsection (6) provides that rules of court may be made to ensure that a civil partnership cause pending in one civil partnership proceedings county court may be heard and determined either partly in that court and partly in another, or in another such court.
350. Subsection (7) makes provision for civil partnership county courts to have jurisdiction even where the amount claimed would not normally enable a county court to exercise jurisdiction.
|© Parliamentary copyright 2004
|Prepared: 7 July 2004