|Civil Partnership Bill [HL] - continued||House of Commons|
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Clause 184: Appeals
351. This clause provides that rules of court may be made to allow appeals to the Court of Appeal of decisions or dismissals of applications made by a judge in a civil partnership proceedings county court.
352. Subsection (3) provides that a person may appeal any order or dismissal of an application made by a county court with jurisdiction under paragraphs 49, 50 and 58 of Schedule 16 (financial relief in the High Court or county court: Northern Ireland) as if the order or dismissal had been made in exercise of the jurisdiction conferred by Part 3 of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)).
Clause 185: Transfer of proceedings
353. This clause provides that rules of court may be made to facilitate the transfer of any civil partnership cause from a civil partnership proceedings county court to the High Court or alternatively from the High Court back to the civil partnership proceedings county court.
354. Subsection (3) provides a definition of a "civil partnership cause" for the purposes of this clause.
355. Subsection (4) provides that rules of court may provide for the transfer or retransfer of a civil partnership cause from either a civil partnership proceedings county court to the High Court or, from the High Court to a civil partnership proceedings county court.
356. Subsection (5) provides that the power conferred by subsections (2) and (4) includes the power to provide for the removal of proceedings at the direction of the High Court. Nothing in this subsection affects the High Court's powers of removal and remittal.
Chapter 3 - Property and Financial Arrangements
Clause 186: Disputes between civil partners about property
357. 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 187: Applications under section 186 where property not in possession etc.
358. This clause allows one civil partner (A) to make an application under clause 186 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 186 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 186.
Clause 188: Assurance policy by civil partner for benefit of other civil partner etc.
359. This clause extends the application of section 4 of the Law Reform (Husband and Wife) Act (Northern Ireland) 1964 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 189: Wills, administration of estates and family provision
360. This clause states that Schedule 15 contains provisions amending enactments relating to wills, administration of estates and intestacy to give the same treatment to civil partners as exist for married people.
Clause 190: Financial relief for civil partners and children of the family
361. This clause introduces Schedule 16, 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 3 of the Matrimonial Causes (Northern Ireland) Order 1978 when they go through divorce, nullity or judicial separation proceedings.
362. Subsection (2) provides that if the effect of rules of law is that provisions for financial relief under Part 3 of the Matrimonial Causes (Northern Ireland) Order 1978 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 16 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.
363. Subsection (3) introduces Schedule 17 which provides civil partners with the right to apply for financial relief in courts of summary jurisdiction in a way that corresponds to the rights that exist for married people under the Domestic Proceedings (Northern Ireland) Order 1980.
364. Subsection (4) introduces Schedule 18, which contains provisions for financial relief in Northern Ireland 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 191: Civil partnership agreements unenforceable
365. 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 Northern Ireland and will not be enforceable.
366. Subsection (2) provides that no action can be taken over any breach of a civil partnership agreement.
367. Subsection (4) provides that the clause will apply to civil partnership agreements entered into both before and after the clause comes into force but it will not affect any legal action which has begun before the clause comes into force.
Clause 192: Property where civil partnership agreement is terminated
368. This clause applies when a civil partnership agreement is terminated. It provides that clauses 186 and 187 (relating to disputes between civil partners about property) 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.
369. An application made using clause 186 or 187 must be made within three years of the date of termination of the civil partnership agreement.
370. Subsection (4) 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
371. This Chapter makes various amendments to the Children (Northern Ireland) Order 1995 and the Adoption (Northern Ireland) Order 1987 to reflect the creation of the new status of civil partnership.
Clause 193: Parental responsibility, children of the family and relatives
372. This clause amends various provisions of the Children (Northern Ireland) Order 1995 ("the Children Order") to include civil partners in a way that corresponds to the provisions that apply to married couples.
373. Subsection (2) amends the definition of "child of the family" in Article 2(2) of the Children Order 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.
374. Subsection (3) amends the definition of "relative" in Article 2(2) of the Children Order to replace "by affinity" with "by marriage or civil partnership".
375. Subsection (4) amends Article 7(1C) of the Children Order 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).
Clause 194: Guardianship
376. This clause amends Article 161 of the Children Order in relation to the revocation and disclaimer of appointments of guardians. Under Article 160 (1) and (2) of the Children Order 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 Article 161 of the Children Order 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 195: Entitlement to apply for a residence or contact order
377. This clause amends Article 10(5) of the Children Order 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 196: Financial provision for children
378. This clause amends Schedule 1 to the Children Order.
379. Subsection (2) extends the meaning of "parent" in paragraph 1(2) of Schedule 1 to the Children Order to include any civil partner in a civil 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.
380. Subsection (3) amends Schedule 1 to the Children Order by adding to the definition of periodical payment orders in paragraph 3(6) of that Schedule orders under the provisions of Parts 1 and 7 of Schedule 16 (Financial relief in the High Court or county court etc.) and under Schedule 17 (Financial relief in court of summary jurisdiction etc.) 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.
381. Subsection (4) amends paragraph 17(2) to Schedule 1 of the Children Order 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.
Clause 197: Adoption
382. This clause amends the Adoption (Northern Ireland) Order 1987 ("the 1987 Order") to ensure that the status of civil partnership is recognised for the purposes of adoption.
383. Subsection (2) amends the definition of "relative" in relation to a child in Article 2(2) of the 1987 Order to replace "by affinity" with "by marriage or civil partnership".
384. Subsection (3) amends Article 12(5) of the 1987 Order so that an adoption order cannot be made in respect of any person who is or has been married or in a civil partnership.
385. Subsection (4) amends Article 15(1)(a) of the 1987 Order 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.
386. Subsection (5) amends Article 33(3)(g) of the 1987 Order so that a protected child ceases to be so on his or her marrying or forming a civil partnership.
387. Subsection (6) amends Article 40(3)(a) of the 1987 Order so that the status conferred as a consequence of an adoption order does not apply for the purposes of either Schedule 13 to the Civil Partnership Bill (prohibited degrees of relationship) or Article 18(1) of the Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984.
388. Subsection (7) amends Article 54(2) of the 1987 Order to ensure that an adopted person who intends to enter into a civil partnership can apply to the Registrar General for him to check that the person with whom the applicant intends to enter a civil partnership, does not fall within the prohibited degrees of relationship for the purposes of Article 18(1) of the Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984 or Schedule 13 to the Civil Partnership Bill.
389. Subsection (8) amends Article 54A(13)(a) of the 1987 Order 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.
Chapter 6 - Miscellaneous
Clause 198: False statements etc. with reference to civil partnerships
390. This clause amends Article 8 of the Perjury (Northern Ireland) Order 1979 to make it an offence for a person to make false statements or representations with reference to marriage or civil partnership formation.
391. Subsection (2) inserts a new paragraph (1A) into Article 8 making 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.
Clause 199: Housing and tenancies
392. This clause introduces Schedule 19 (Housing and tenancies: Northern Ireland), which makes amendments to a range of enactments relating to housing and tenancies.
Clause 200: Family Homes and domestic violence
393. This clause introduces Schedule 20 (Family homes and domestic violence), which amends the Family Homes and Domestic Violence (Northern Ireland) Order 1998 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 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 201: Fatal accidents claims
394. This clause extends the provisions of the Fatal Accidents (Northern Ireland) Order 1977 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.
395. Subsections (2) and (3) widen the definition of "dependant" for the purposes of a right of action under the Order 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.
396. Subsection (4) defines "former civil partner" as a person whose civil partnership with the deceased has been annulled or dissolved.
397. Subsection (5) replaces the reference to a relationship by "affinity" in Article 2(3)(b) of the Order with a reference to a relationship "by marriage or civil partnership", for the purposes of clarity.
398. 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 entered into a civil partnership.
Part 5 - Civil partnerships formed or dissolved abroad etc.
399. The clauses in this Part (Part 5) of the Civil Partnership Bill extend to the whole of the United Kingdom, with the exception of clauses 212 to 216 which extend only to England and Wales, clauses 217 to 219 which extend only to Scotland and clauses 220 to 224 which extend only to Northern Ireland (see clause 252(4)).
Chapter 1 - Registration outside UK under Order in Council
Clause 202: Registration at British consulates etc.
400. This clause confers power to make subordinate legislation by Order in Council to make provision for two people to register as civil partners of each other in countries or territories outside the United Kingdom in the presence of an officer of Her Majesty's Diplomatic Service. The officers in whose presence the parties may register as civil partners, and the countries or territories where this may take place, will be set out in the Order in Council (see the definition of "prescribed" in clause 236(5)). This power will be used to make provisions for civil partnership corresponding to the provisions of the Foreign Marriage Act 1892 (c.23). Under that Act it is possible for UK nationals to marry in accordance with UK law at a diplomatic post overseas in certain circumstances, so this power will enable civil partnerships likewise to be registered at diplomatic posts overseas.
401. Subsection (2) sets out the four conditions which the Diplomatic Service officer must be satisfied are met. These are that at least one of the proposed civil partners is a United Kingdom national, that the civil partners would have been eligible to register in the relevant part of the United Kingdom as determined according to the provisions of the Order in Council, that the authorities in the country or territory in question will not object to the registration, and that there are insufficient facilities for them to enter into an overseas relationship under that country's law. In addition, by subsection (3), the officer is not required to allow the couple to register as civil partners if in his opinion to do so would be inconsistent with international law or the comity of nations, although the Order may include provision for an appeal against any such refusal. "United Kingdom national" is defined in clause 237. The criteria for what constitutes an "overseas relationship" are set out in clauses 204 to 206.
Clause 203: Registration by armed forces personnel
402. This clause enables provision to be made by Order in Council for two people to register as civil partners of each other in countries or territories outside the United Kingdom where one of them is a member of Her Majesty's forces serving in the country or territory in question or falls within certain connected categories set out in subsection (2). The countries or territories where a such persons may register will be set out in the Order in Council (see the definition of "prescribed" in clause 236(5)). "Her Majesty's forces" is defined in clause 237(2).
403. This power will be used to make provisions for civil partnership corresponding to section 22 of the Foreign Marriage Act 1892 (c.23). Under that section, members of the armed forces and certain civilians accompanying them can be married outside the UK by a forces chaplain or an officer authorised by the commanding officer. This clause allows similar provision to be made by Order in Council for civil partnership registration outside the UK, in the presence of one of the officers responsible for the recording of births, deaths and marriages (and, in future, civil partnerships) among the Service community.
Chapter 2 - Overseas relationships treated as civil partnerships
Clause 204: Meaning of "overseas relationship"
404. This clause defines the overseas relationships which are capable of being treated as civil partnerships if the other requirements of this Chapter are met. An overseas relationship must be either a "specified relationship" (see clause 205 and Schedule 21) or must meet the "general conditions" (see clause 206). In addition the relationship must have been registered in a country or territory outside the UK by two people who are of the same sex under the relevant law, and (as a matter of UK law) are not already in a civil partnership or lawfully married. (They are also required to be of the same sex as a matter of UK law - see clause 208). The overseas relationship may have been registered before the enactment of the Civil Partnership Bill (but, in such cases, clause 207 ensures that the couple will be treated as having formed a civil partnership only at the time when that clause comes into force). "The relevant law" is defined in subsection (2) as the law of the country or territory where the overseas relationship is registered, including its rules of private international law.
Clause 205: Specified relationships
405. This clause introduces Schedule 21, which lists the relationships which are "specified relationships" for the purposes of clause 204. The Schedule lists various types of relationship which exist in other countries, such as civil union in Vermont in the United States of America, registered partnership in Denmark, and so on. It also includes marriage in Belgium and the Netherlands (both countries where marriage is available to same-sex partners). Relationships falling within the descriptions in Schedule 21 can be treated as civil partnerships as set out in clauses 207 to 210, if the other requirements of those clauses and clause 204 are met. For example, a marriage in Belgium or the Netherlands could be treated as a civil partnership only if it is between two people of the same sex, and who are not already in a civil partnership or lawfully married.
406. Subsections (2) to (6) enable the Schedule to be amended by order made by the Secretary of State. This is subject to the affirmative resolution procedure if the amendments have the effect of removing a description of a relationship from Schedule 21, or amending such a description, but to the negative resolution procedure if the amendments add additional relationships to the list. No order may be made without the consent of the Scottish Ministers or the Department of Finance and Personnel in Northern Ireland.
Clause 206: The general conditions
407. If a relationship is not a "specified relationship" listed in Schedule 21, it is nonetheless an "overseas relationship" if it meets the general conditions set out in this clause, provided the other requirements of clause 204 are also met.
408. The general conditions relate to the following issues:
Clause 207: Overseas relationships treated as civil partnerships: the general rule
409. Subsection (1) provides that two people are to be treated as having formed a civil partnership as a result of having registered an overseas relationship if under the relevant law they had capacity to enter into the relationship, and met all requirements necessary for formal validity under that law. "The relevant law" is defined in clause 204 as the law of the country or territory where the overseas relationship is registered, including its rules of private international law. Clause 207 is subject to clauses 208 to 210.
410. Subsection (2) provides that the civil partnership is treated as having been formed at the time when the overseas relationship is registered as having been entered into. However if the relationship was registered before this clause comes into force, then subsection (3) provides that the civil partnership is treated as having been formed only at the date when this clause comes into force.
Clause 208: The same-sex requirement
411. Subsection (1) provides that both members of the couple must be of the same sex, at the critical time, if the overseas relationship is to be treated as a civil partnership in the UK. "The critical time" is defined in subsection (5) to refer back to clause 207(2) or (3) (i.e. depending on whether the relationship was entered into before or after the commencement of clause 207).
412. Subsections (2) to (4) provide an exception where the couple was regarded as a same-sex couple under the relevant law because one of the parties was regarded as having changed gender under that law. In this situation the relationship will be treated as a civil partnership once the party who has changed gender under the relevant law has also acquired a full gender recognition certificate under the Gender Recognition Act 2004. But the parties will only be regarded as having formed a civil partnership if no marriage or civil partnership has been entered into in the interim. These provisions are analogous to provisions contained in the Gender Recognition Act 2004, in relation to overseas marriages.
|© Parliamentary copyright 2004||Prepared: 7 July 2004|