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

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Clause 209: Person domiciled in a part of the United Kingdom

413.     This clause ensures that, where an overseas relationship is registered by a person who is domiciled in England and Wales, Scotland or Northern Ireland, it cannot be treated as a civil partnership unless the couple would have been eligible to register as civil partners of each other in that part of the United Kingdom. Thus the overseas relationship will not be treated as a civil partnership if either party was under 16 at the time of registration, or if the parties are within the prohibited degrees of relationship applicable in the relevant part of the United Kingdom. Where either party was domiciled in Scotland, the overseas relationship will also not be treated as a civil partnership if either party was incapable of understanding the nature of civil partnership. These requirements are additional to the requirements that neither party is already a civil partner or lawfully married and that both parties are of the same sex (see clauses 204 and 208), which apply even where neither party was domiciled in the United Kingdom.

Clause 210: The public policy exception

414.     This clause provides that two people cannot be treated as having formed a civil partnership as a result of their overseas relationship if it would be manifestly contrary to public policy to recognise the capacity of either or both of them to enter into the relationship under the relevant law.

Chapter 3 - Dissolution etc.: Jurisdiction and Recognition

Clause 211: Power to make provision corresponding to EC Regulation 2201/2003

415.     Subsections (1), (2) and (3) provide powers for the Lord Chancellor or Scottish Ministers to make regulations concerning:

    a)     the jurisdiction of the courts in England and Wales or Scotland in relation to the dissolution or annulment of civil partnerships or the legal separation of civil partners, where one of them is a resident or national of a member State or is domiciled in a part of the United Kingdom; and

    b)     the recognition and enforcement of equivalent judgments from other member States, in cases where the corresponding rules for dissolution, annulment or legal separation in matrimonial matters will be governed by EC Regulation 2201/2003. This Regulation will come into force on 1 March 2005.

416.     Subsection (4) allows the regulations to define "member State" for the purposes of this Part of the Bill and for the purposes of the regulations.

417.     Under subsection (5) regulations under this clause for England and Wales must be made by statutory instrument under the affirmative resolution procedure in both Houses of Parliament. Under subsection (6) equivalent regulations for Scotland must be made by statutory instrument under the affirmative resolution procedure in the Scottish Parliament.

Clause 212: Meaning of 'the court'

418.     This clause defines "the court" in clauses 213 to 216 in the same way as in Chapter 2 of Part 2 (see clause 37). These clauses extend to England and Wales only.

Clause 213: Proceedings for dissolution, separation or nullity order

419.     Subsection (1) gives the court jurisdiction to hear applications for dissolution or separation orders, either under clause 211 regulations or, in cases where no court has jurisdiction under those regulations, where either civil partner is domiciled in England and Wales on the date the proceedings begin. A further discretionary ground of jurisdiction is made available for those cases where the couple registered as civil partners of each other in England and Wales. This will operate where the clause 211 regulations do not give any court jurisdiction and the court decides it is in the interests of justice to assume jurisdiction.

420.      Subsection (2) gives the court jurisdiction to hear applications for nullity orders in the same circumstances as for dissolution and separation orders and also, in a case where no court has jurisdiction under clause 211 regulations, if either civil partner died before proceedings began and on death was domiciled in England and Wales or had been habitually resident there throughout the preceding year.

421.     Subsection (3) gives the court jurisdiction, when proceedings are pending under subsections (1) or (2), to hear other proceedings for a dissolution, separation or nullity order in respect of the same civil partnership, even if the court would not have jurisdiction to hear the latter proceedings under those subsections.

Clause 214: Proceedings for presumption of death order

422.     This clause gives the court jurisdiction to hear applications for a presumption of death order provided the applicant is domiciled in England and Wales on the date proceedings begin or was habitually resident there throughout the year ending with that date. A further discretionary ground of jurisdiction is made available for those cases where the couple registered as civil partners of each other in England and Wales. This will operate where the court decides it is in the interests of justice to assume jurisdiction.

Clause 215: Proceedings for dissolution, nullity or separation order: supplementary

423.     This clause allows for rules of court to make provision corresponding to the provision for marriages made by Schedule 1 to the Domestic and Matrimonial Proceedings Act 1973 (c.45), which may in particular deal with the provision of information to the court, by applicants and respondents for dissolution, nullity or separation orders, and with stays of proceedings, in cases where there are concurrent proceedings elsewhere in respect of the same civil partnership.

Clause 216: Applications for declarations as to validity etc.

424.     This clause gives the court jurisdiction in relation to proceedings under clause 58 (declarations in relation to a civil partnership) provided either of the civil partners is domiciled in England and Wales on the date of the application or has been habitually resident there throughout the year ending with that date or died before that date and on death was domiciled in England and Wales or was habitually resident there throughout the year ending with the date of death. A further discretionary ground of jurisdiction is made available for those cases where the couple registered as civil partners of each other in England and Wales. This will operate where the court decides it is in the interests of justice to assume jurisdiction.

Clause 217: Jurisdiction of Scottish Courts

425.     Clauses 217 to 219 extend only to Scotland. Subsections (1) and (2) of clause 217 provide the rules on the basis of which the Scottish courts will be able to exercise jurisdiction in an action for dissolution of a civil partnership or separation of civil partners. Any Scottish regulations to be made under clause 211 will have primacy. Subject to this, the Scottish courts will have jurisdiction where either civil partner is domiciled in Scotland when proceedings commence. Where an action is raised in the sheriff court then an additional test of 40 days residence in the sheriffdom will require to be satisfied. The Court of Session alone will also have jurisdiction where the parties registered as civil partners in Scotland, no court has jurisdiction under any Scottish regulations made under clause 211and the court is satisfied that it is in the interests of justice to assume jurisdiction.

426.     Under subsection (3), the Court of Session will have jurisdiction in an action for declarator of nullity of a civil partnership in circumstances largely corresponding to those in subsection (1), but with additional provision where one of the purported civil partners has died. Subsection (4) makes provision for proceedings parallel to an action already raised.

Clause 218: Sisting of proceedings

427.     This clause permits rules of court to make provision for suspending of proceedings before a Scottish court in respect of a civil partnership where an action in relation to the same civil partnership is ongoing elsewhere, and for information to be supplied to the court about such an action.

Clause 219: Scottish ancillary and collateral orders

428.     This clause confers jurisdiction on any Scottish court to deal with an application relating to children, aliment (maintenance), financial provision or expenses which is ancillary or collateral to an action for dissolution, separation or declarator of nullity. The only exception is where such jurisdiction would conflict with regulations made under clause 211. Section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (c.19) confers power on sheriffs to vary or recall particular types of order made by the Court of Session, provided no party objects. Where clause 219 enables the Court of Session to hear an application for variation or recall of one of its own orders, and the order is one to which section 8 (as amended by this Bill) applies, clause 219(4) ensures that the sheriff will also have power to hear the application under the section 8 procedure.

Clause 220: Meaning of "the court"

429.     This clause defines "the court" for the purposes of clauses 221 to 224 as having the same meaning as that in clause 183 in Chapter 2 of Part 4 of the Bill.

Clause 221: Proceedings for dissolution, separation or nullity order

430.     Subsection (1) gives the court jurisdiction to hear applications for dissolution or separation orders, either under clause 211 regulations or, in cases where no court has jurisdiction under those regulations, where either civil partner is domiciled in Northern Ireland on the date the proceedings begin. A further discretionary ground of jurisdiction is made available for those cases where the couple registered as civil partners of each other in Northern Ireland. This will operate where the clause 211 regulations do not give any court jurisdiction and the court decides it is in the interests of justice to assume jurisdiction.

431.     Subsection (2) gives the court jurisdiction to hear applications for nullity orders in the same circumstances as for dissolution and separation orders and also, in a case where no court has jurisdiction under clause 211 regulations, if either civil partner died before proceedings began and on death was domiciled in Northern Ireland or had been habitually resident there throughout the preceding year.

432.     Subsection (3) gives the court jurisdiction, when proceedings are pending under subsections (1) or (2), to hear other proceedings for a dissolution, separation or nullity order in respect of the same civil partnership, even if the court would not have jurisdiction to hear the latter proceedings under those subsections.

Clause 222: Proceedings for presumption of death order

433.     This clause gives the High Court jurisdiction to hear applications for a presumption of death order provided the applicant is domiciled in Northern Ireland on the date proceedings begin or was habitually resident there throughout the year ending with that date. A further discretionary ground of jurisdiction is made available for those cases where the couple registered as civil partners of each other in Northern Ireland. This will operate where the court decides it is in the interests of justice to assume jurisdiction.

Clause 223: Proceedings for dissolution separation or nullity order: supplementary

434.     This clause allows for rules of court to make provision corresponding to the provision for marriages made by Schedule 1 to the Matrimonial Causes (Northern Ireland) Order 1978, which may in particular deal with the provision of information to the court, by applicants and respondents for dissolution, nullity or separation orders, and with stays of proceedings, in cases where there are concurrent proceedings elsewhere in respect of the same civil partnership.

Clause 224: Applications for declarations as to validity

435.     This clause gives the court jurisdiction in relation to proceedings under clause 176 (declarations in relation to a civil partnership) provided either of the civil partners is domiciled in Northern Ireland on the date of the application or has been habitually resident there throughout the year ending with that date or died before that date and on death was domiciled in Northern Ireland or was habitually resident there throughout the year ending with the date of death. A further discretionary ground of jurisdiction is made available for those cases where the couple registered as civil partners of each other in Northern Ireland. This will operate where the court decides it is in the interests of justice to assume jurisdiction.

Clause 225: Effect of dissolution, annulment or separation obtained in the UK

436.     Subsection (1) provides that no dissolution or annulment of a civil partnership obtained in one part of the United Kingdom can be effective in any part of the United Kingdom unless it has been obtained from a court of civil jurisdiction. The parts of the United Kingdom, for the purposes of clauses 225 to 230 are England and Wales, Scotland, and Northern Ireland (see clause 229(5)).

437.     Subsection (2) provides for any dissolution or annulment of a civil partnership or legal separation of civil partners, obtained from a court of civil jurisdiction in one part of the United Kingdom, to be recognised throughout the United Kingdom, subject to subsections (3) and (4).

438.     Subsection (3) provides that such dissolution or annulment can be refused recognition if the dissolution, annulment or separation was obtained at a time when it was irreconcilable with an earlier decision on the existence or validity of the civil partnership, either given by a civil court in the other part of the United Kingdom, or given by a court elsewhere and recognised or entitled to be recognised in the other part.

439.     Subsection (4) provides that, in relation to a dissolution or legal separation, recognition can be refused if the dissolution or separation was obtained at a time when, according to the law of the other part, there was no civil partnership in existence.

Clause 226: Recognition in the UK of overseas dissolution, annulment or separation

440.     This clause provides that the validity of an overseas dissolution, annulment or legal separation is to be recognised in the United Kingdom if it is entitled to recognition either pursuant to regulations made under clause 211 or pursuant to clauses 227 to 229. An overseas dissolution etc is defined as a dissolution etc obtained outside the United Kingdom.

Clause 227: Grounds for recognition

441.     Subsection (1) provides for recognition of the validity of an overseas dissolution, annulment or legal separation obtained by proceedings if:

    (a) it is effective under the law of the country where it was obtained, and

    (b) at the relevant date (which is defined by subsection (3)) either civil partner was habitually resident or domiciled there or was a national of that country.

442.     Subsection (2) provides for recognition of the validity of an overseas dissolution, annulment or legal separation obtained otherwise than by proceedings if:

    (a) it is effective under the law of the country where it was obtained,

    (b) at the relevant date:

    -     both civil partners were domiciled there; or

    -     either civil partner was domiciled there and the other was domiciled in a country under the law of which the dissolution etc. is recognised as valid, and

    (c) neither civil partner was habitually resident in the United Kingdom for the year immediately before the relevant date.

443.     Subsection (3) defines the "relevant date" as regards overseas dissolutions etc. obtained by proceedings as being the date the proceedings commenced, and for those obtained otherwise than by proceedings as being the date it was obtained.

Clause 228: Refusal of recognition

444.     Subsection (1) provides for the refusal of recognition of the validity of an overseas dissolution, annulment or legal separation in any part of the United Kingdom if it was obtained at a time when it was irreconcilable with an earlier decision on the existence or validity of the civil partnership, either given by a civil court in that part of the United Kingdom, or given by a court elsewhere and recognised or entitled to be recognised in that part.

445.     Subsection (2) provides for the refusal of recognition of the validity of an overseas dissolution or legal separation in any part of the United Kingdom if it was obtained at a time when according to the law of that part there was at that time no civil partnership in existence.

446.     Subsection (3) provides for the refusal of recognition of the validity of an overseas dissolution, annulment or separation if, in relation to proceedings, steps as to notice were not taken or one of the civil partners was for any reason not given a reasonable opportunity to take part in the proceedings; or in the absence of proceedings, if there is no official documentation regarding the effectiveness and validity of the dissolution etc in the country where it was obtained.

447.     Recognition may also be refused in either case if recognition of the dissolution etc. would be manifestly contrary to public policy.

448.     Subsection (4) defines the meaning of "official" in relation to the documents referred to in subsection (3) and " the relevant date" in relation to the domicile of a civil partner also referred to in that subsection. "Proceedings" is defined in clause 229(5) as meaning judicial or other proceedings.

Clause 229: Supplementary provisions relating to recognition of dissolution etc.

449.     Subsection (1) provides, for the purposes of clauses 227 and 228, that a civil partner is to be treated as domiciled in a country if he was domiciled in that country either according the law of that country in family matters or according to the law of the part of the United Kingdom where the question of recognition arises.

450.     Subsection (2) gives the Lord Chancellor (or the Scottish Ministers) the power to make regulations concerning recognition of the validity of overseas annulments where there are cross-proceedings, for example where the validity of an order is contested, and with respect to cases where a separation is converted into a dissolution effective under the law of the country where it is obtained. They may also make regulations about proof of findings of fact in proceedings outside the UK and applying clauses 227 and 228 with modifications for countries with territories with different systems of law for dissolution etc.

451.     Subsections (3) and (4) provide that this power is exercisable by statutory instrument, subject to the negative resolution procedure (negative resolution of the Scottish Parliament in the case of regulations made by the Scottish Ministers).

452.     Subsection (5) defines the meanings of "annulment", "part of the United Kingdom", and "proceedings", in clauses 225 to 230.

453.     Subsection (6) states that nothing in this Chapter requires recognition of any finding of fault made in dissolution etc proceedings or recognition of any maintenance, custody or other ancillary order made in those proceedings.

Clause 230: Non-recognition of overseas dissolution etc. not a bar

454.     Under this clause, when a court in any part of the United Kingdom has granted a dissolution or annulment of a civil partnership, or a dissolution or annulment has been recognised as valid by virtue of this Chapter, the fact that the dissolution or annulment would not be recognised outside the United Kingdom does not prevent either party from entering a later marriage or civil partnership in that part of the United Kingdom or make the later marriage or civil partnership invalid in that part.

Chapter 4 - Miscellaneous and Supplementary

Clause 231: Commanding officers' certificates for Part 2 purposes

455.     This clause allows provision to be made by Order in Council for the situation where a couple, one of whom is a member of the armed forces serving outside the United Kingdom and the other resident in England and Wales, wish to register as civil partners in England and Wales. Under such an Order, the member of the armed forces could give notice of the proposed civil partnership to his commanding officer, who could then issue a certificate of no impediment. A civil partnership schedule could be issued in England and Wales under clause 21 on production of the certificate, without the need for the member of the armed forces to give notice in England and Wales. The clause follows the approach taken in the Marriage Act 1949 (c.76) in relation to persons serving in a naval vessel at sea, but extends it to all members of the armed forces.

Clause 232: Certificates of no impediment to overseas relationships

456.     This clause permits the making of an Order in Council to allow for the issue of certificates of no impediment where a United Kingdom national (or a Commonwealth national if prescribed in the Order in Council) intends to enter into an overseas relationship with a person who is neither a United Kingdom national nor a Commonwealth national. The Order in Council will also prescribe the countries or territories which are covered. This power will be used to make provision corresponding to the provisions of section 1(1) of the Marriage with Foreigners Act 1906 (c.40). "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 233: Transmission of certificates of overseas relationships etc.

457.     This clause permits the making of an Order in Council to provide for the transmission to UK Registrars General of foreign certificates in relation to overseas relationships, for the issue of certified copies by the Registrar General, and for these to be received in evidence. This clause will be used to make provision for civil partnerships corresponding to the provisions of section 18(2) of the Foreign Marriage Act 1892 (c.23).

Clause 234: Power to make provision relating to certain Commonwealth forces

458.     This clause permits the making of an Order in Council to ensure that, where the law of certain Commonwealth countries makes provision corresponding to clause 203 (allowing for registration by armed forces personnel serving abroad), relationships formed under such provisions can be recognised in the UK. This will enable provision to be made, if necessary, equivalent to that which can be made under section 3(2) of the Foreign Marriage Act 1947 (c.33).

Clause 235: Fees

459.     Subsection (1) provides that the power of the Chancellor of the Exchequer to make provision for fees under clause 35 may be used to prescribe fees in respect of things done by registration authorities, or by or on behalf of the Registrar General for England and Wales by virtue of an Order in Council under Part 5 of the Bill. This could be used, for example, to set a fee for attesting a notice of intention to register an overseas relationship under an Order in Council made under clause 175 (certificates of no impediment to overseas relationships).

460.     Subsections (2) and (3) provide power for the Registrar General for Scotland, with the approval of the Scottish Ministers, to make regulations prescribing fees in respect of things done by virtue of an Order in Council under Part 5 of the Bill.

461.     Subsection (4) provides that the power of the Department of Finance and Personnel in Northern Ireland to make provision for fees under clause 153 may be used to prescribe fees in respect of things required by virtue of an Order in Council under Part 5 of the Bill to be done by or on behalf of the Registrar General for Northern Ireland.

Clause 236: Orders in Council: supplementary

462.     This clause contains supplementary provisions in relation to the powers to make an Order in Council contained in clauses 202, 203, 231, 232, 233 and 234. Statutory instruments containing an Order in Council under those clauses are to be subject to the negative resolution procedure, including where other provisions are included which are made by Order in Council under existing legislation on foreign marriages, such as the Foreign Marriage Act 1892. This clause also provides that Orders in Council under those clauses may make different provision for different cases. This may be necessary, for example, to take account of differing local conditions in different countries. They may in addition include, for example, supplementary, consequential and transitional provisions and subsection (2) makes clear that such provisions may correspond to provision made under this Bill or under any Act relating to marriage outside the UK

Clause 237: Interpretation

278.      This clause defines the terms "United Kingdom national" and "Her Majesty's forces" for the purposes of this Part of the Bill.

Part 6 - Relationships arising through civil partnerships

 
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Prepared: 7 July 2004