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

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Introduction

463.     The clauses in this Part of the Bill relate to the interpretation of references to certain familial relationships in legislation including legislation made by the Scottish Parliament and Northern Ireland legislation.

Clause 238: Interpretation of statutory references to stepchildren etc.

464.     This clause provides that references to "step" relationships and "in-laws", in any provision to which the clause applies, are to be read as including relationships arising through civil partnership.

Clause 239: Provisions to which section 238 applies: Acts of Parliament etc.

465.     This clause applies clause 238 to any provision of a future Act (including Acts of the Scottish Parliament) or future subordinate legislation (subject to any indication to the contrary) and to references in existing legislation as listed in Schedule 22. In addition, this clause provides an order-making power to amend Schedule 22 and to apply clause 238 to provisions of existing subordinate legislation.

Clause 240: Provisions to which section 238 applies: Northern Ireland

466.     This clause applies clause 238 to Northern Ireland legislation. It introduces Schedule 23 to the Bill which applies the provisions of Clause 238 to the existing Northern Ireland legislation listed in that Schedule. It confers on the Department of Finance and Personnel an order-making power to amend Schedule 23 and to apply clause 238 to existing Northern Ireland subordinate legislation.

Part 7 - Miscellaneous

Clause 241: Discrimination against civil partners in employment field

467.     This clause amends the Sex Discrimination Act 1975 (SDA) to extend the prohibition of discrimination against married persons to cover civil partners. Section 3 of the SDA applies for the purposes of Part 2 of that Act, which contains a range of provisions prohibiting discrimination in the field of employment. At present section 3(1) provides that a person discriminates against a married person if he acts in a way that falls within the paragraph (a) or (b) of that subsection (which in effect define direct and indirect discrimination on the ground of marriage). This clause substitutes a new section 3 that applies to direct and indirect discrimination against spouses or civil partners, who are collectively defined as persons who meet the condition in subsection (2) of the new section. The clause also amends the exception in section 7(2)(h) of the SDA (genuine occupational qualification where job is one of two to be held by a married couple) to include civil partners. Other amendments to the SDA are consequential.

Clause 242: Discrimination against civil partners in employment field: Northern Ireland

468.     This clause amends the Sex Discrimination (Northern Ireland) Order 1976 (SI 1976/1042 (N.I. 15)) in the same terms as clause 241 amends the Sex Discrimination Act 1975. The amendment extends the prohibition of discrimination against married persons to cover civil partners in Northern Ireland.

Clause 243: Civil partners to have an unlimited insurable interest in each other

469.     This clause provides that two people who are civil partners will be presumed for the purposes of section 1 of the Life Assurance Act 1774 to have an interest in each other's lives and that that interest shall be unlimited.

Clause 244: Social security, child support and tax credits

470.     This clause introduces Schedule 24 which makes amendments to the Child Support Acts 1991 and 1995, the Child Support (Northern Ireland) Orders 1991 and 1995, the Social Security Contributions and Benefits Act 1992, the Social Security Administration Act 1992, the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the Social Security Administration (Northern Ireland) Act 1992, the Jobseekers Act 1995, the Jobseekers (Northern Ireland) Order 1995, the State Pension Credit Act 2002, the Tax Credits Act 2002 and the State Pension Credit Act (Northern Ireland) 2002. For the purpose of child support, social security and tax credits legislation amended, the intention is that, in general, couples in a civil partnership are treated in the same way as married couples and that same-sex couples who are not in a civil partnership but who are living together as if they were civil partners are treated in the same way as opposite-sex unmarried couples who are living together as husband and wife.

Clause 245: Power to amend enactments relating to pensions

471.     This clause provides a power to make amendments, repeals or revocations to enactments, Northern Ireland legislation, subordinate legislation or Church legislation relating to pensions, allowances or gratuities for the purpose of (or in connection with) making provision with respect to pensions, allowances or gratuities for surviving civil partners or dependants of deceased civil partners.

472.     Contracted-out defined benefit pension schemes would be required to take account of periods of pensionable service after commencement of the Bill. Contracted-out defined contribution schemes would be required to provide survivor benefits from the protected rights accrued after commencement of the Civil Partnership Bill, if the member is in a registered civil partnership at the point of retirement. Contracted-out schemes are already required to make provision for survivor benefits for legal spouses.

473.     In the context of judicial pensions, allowances or gratuities, this power will be used to make necessary amendments to the Judicial Pensions Act 1981 and the Judicial Pensions and Retirement Act 1993 and associated subordinate legislation in order to make the judicial pensions regime consistent with the Civil Partnership Bill. Both Acts (together with subordinate legislation) make provision for the survivors (children and spouses) of judicial officers who die while in service or after retirement. The power in clause 245 therefore includes a reference to dependants of deceased civil partners.

474.     Specific references to 'spouse' or to 'marriage' need to be extended to refer in addition to 'civil partners' and to 'civil partnership'. Similarly, references to children will be amended to include children of a civil partnership. Where appropriate, provisions will be extended to other relationships (e.g. step children) created as a consequence of the formation of a civil partnership in the same way as the benefits created by marriage.

475.     In relation to judicial pensions, allowances or gratuities, sub-section (3) will restrict the ability to make the necessary amendments to judicial pensions legislation to the Lord Chancellor, or to the Secretary of State (in practice the Secretary of State for Scotland) where the affected judicial office has an exclusively Scottish jurisdiction.

Clause 246: Amendment of certain enactments relating to pensions

476.     This clause introduces Schedule 25.

Clause 247: Amendment of certain enactments relating to the armed forces

477.     This clause introduces Schedule 26.

Part 8 - Supplementary

Clause 248: Regulations and orders

478.     This section provides that powers conferred by the Bill to make regulations or orders (except orders by a court) may be exercised so as to make different provision for different purposes and to make ancillary provision.

Clause 249: Power to make further provision in connection with civil partnership

479.     Subsection (1) confers power (which is not restricted by any other provision of the Bill (see subsection (5)) to make, by order, supplementary, incidental, consequential, transitory, transitional or saving provision considered appropriate for the general purposes of the Bill, for any particular purpose of the Bill, or in consequence of any provision by or under the Bill or for giving effect to such a provision.

480.     This power is exercisable by a Minister of the Crown, by the Scottish Ministers in relation to a provision within the legislative competence of the Scottish Parliament, by a Northern Ireland department in relation to a provision which deals with a transferred matter, and by the National Assembly for Wales in relation to matters with respect to which functions are exercisable by the Assembly (except in relation to a provision made by virtue of subsection (3)).

481.     By subsection (3) this includes the power to amend or repeal primary legislation (or Scottish primary legislation) and amend, repeal or (as the case may be) revoke provisions contained in Northern Ireland legislation. It also includes the power to repeal, amend or (as the case may be) revoke provisions conferring a power to make subordinate legislation whose exercise is currently limited to cases of marriage. An order may also amend, repeal or revoke Church legislation (subsection (3)(c)).

482.     By subsection (4) an order may provide for provisions of the Bill to come into force with modifications until other provisions are commenced. An order may amend or revoke subordinate legislation (subsection (4)(b)), including subordinate legislation made by the Scottish Ministers and any instrument within the meaning of section 1(c) of the Interpretation Act (Northern Ireland) 1954.

483.     The power is exercisable by statutory instrument, except where it is used by a Northern Ireland department. In the case of a Northern Ireland department, it is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979. The power is subject to the negative procedure unless it contains any provision made by virtue of subsection (3) in which case it is subject to the affirmative procedure

Clause 250: Community obligations and civil partners

484.     This power allows Ministers to make parallel provision to any made under section 2(2) of the European Communities Act 1972 which relates to persons who are or have been married (or whose marriage was void) where it does not relate to persons who are or have been civil partners (or whose civil partnership was void).

Clause 251: Consequential amendments, repeals etc.

485.     This clause introduces Schedule 27 (which makes minor and consequential amendments to other Acts arising from the provisions of the Bill), Schedule 28 (which makes minor and consequential amendments to enactments relating to Scotland), and Schedule 29 (which contains repeals and revocations of provisions of existing legislation).

Clause 252: Extent

486.     The Bill makes provision in relation to England, Wales, Northern Ireland and Scotland. Part 2 and related Schedules extend only to England and Wales, Part 3 and related Schedules to Scotland only and Part 4 and related Schedules to Northern Ireland only. Certain other clauses and Schedules are also limited in extent. Amendments, repeals or revocations have the same extent as the provisions amended or repealed.

Clause 253: Commencement

487.     This clause provides for the coming into force of the provisions of the Bill. All substantive provisions of the Act are to come into force by commencement orders. These orders will be made by the Secretary of State, except for the Scottish provisions which will be made by the Scottish Ministers and the Northern Ireland provisions which will be made by the Department of Finance and Personnel, both after consulting the Secretary of State. The Secretary of State must also consult the Scottish Ministers or the Department of Finance and Personnel before commencing certain other provisions.

Clause 254: Short title

488.     The short title will be the Civil Partnership Act 2004.

Schedules

Schedule 1 - Specified degrees of family relationship

489.     Schedule 1 contains provisions for determining when two people are within the specified degrees of family relationship, for the purposes of clause 2. Paragraph 1 of the Schedule lists a range of relationships and provides that two people are within the specified degrees of family relationship if one falls within the list in relation to the other. For example, two people will be within the specified degrees of family relationship if one of them is the child or sibling of the other.

Schedule 2 - Prohibited degrees of relationship: England and Wales

490.     Part 1 of Schedule 2 contains provisions for determining when two people are within prohibited degrees of relationship, for the purposes of clause 4. Clause 4(1)(d) provides that two people are not eligible to register as civil partners of each other if they are within the prohibited degrees of relationship. As noted previously, clause 4(1)(d) will not apply where two people wish to register as civil partners of each other under clause 2.

491.     Paragraph 1 of Schedule 2 lists the people who are absolutely prohibited from forming a civil partnership with each other (direct familial relationships). Paragraphs 2 and 3 list the people who are prohibited from forming a civil partnership with each other unless certain conditions are met (relationships arising by the civil partnership or marriage of family members).

492.     Paragraph 4 applies paragraphs 5 to 7 to those relationships set out in paragraph 2 (prohibited unless both are at least 21 and one has not lived as a child in the same household or been treated as a child of the family by the other).

493.     Paragraphs 5(1) provides that a registration authority must not record the fact that a notice of proposed civil partnership has been given unless it is satisfied by the production of evidence of age that both parties have reached 21 and it has received a declaration made by each proposed civil partner as to their affinal relationship (a "paragraph 5(1)(b) declaration"). Paragraph 5(4) requires a registration authority to record the fact that it has received a paragraph 5(1)(b) declaration and paragraph 5(5) requires the registration authority to file and keep such declarations.

494.     Paragraph 5(2) allows for a High Court declaration to be accepted as evidence of no impediment of affinity to the proposed civil partnership in place of a paragraph 5(1)(b) declaration.

495.     Paragraph 5(3) provides for the content of and the manner of signing and attesting a declaration made under paragraph 5(1)(b) to be prescribed by regulations.

496.     Paragraph 6 provides that if a registration authority receives an allegation that a paragraph 5(1)(b) declaration is false, as shown in the register, the registration authority in whose area it is proposed the registration take place must not issue a civil partnership schedule unless a High Court declaration is obtained under paragraph 7.

497.     Paragraph 7 provides for either of the proposed civil partners to apply to the High Court to obtain a declaration confirming there is no impediment of affinity, due to the fact that the qualifications which prevent a civil partnership within the degrees of relationship from being prohibited under paragraph 2 are met.

498.     Paragraph 8 provides that an objection to the issue of a civil partnership schedule made under clause 14 does not apply in relation to a civil partnership to which paragraphs 5 to 7 apply unless it relates to a ground other than the affinity between the proposed civil partners.

499.     Paragraph 9 provides for evidence of age and relevant deaths to be produced where two people, within the degrees of relationship which under paragraph 3 are prohibited unless both are at least 21 and certain relatives have died, intend to register as civil partners of each other.

Schedule 3 - Civil partnerships of persons under 18: England and Wales

500.     Paragraph 1 Schedule 3 sets out in table form the appropriate persons or bodies required to give consent to the civil partnership of a person who is under 18 and paragraph 2 defines certain terms used in the table.

501.     Paragraphs (3) and (4) deal with the situation where a person's consent to a child registering as a civil partner is unobtainable or refused and sets out the circumstances in which that consent can be dispensed with or an application can be made to the court for it to give consent.

502.     Paragraph 5 sets out the additional statement as to whether or not the required consents have been obtained which the declaration accompanying each notice of proposed civil partnership must contain if one of the proposed civil partners is under 18 and has not previously been a civil partner (under clause 5 no consent is required if the child is a surviving civil partner).

503.     Paragraph 6 sets out how a person, whose consent is required to a child and another person registering as civil partners of each other, may forbid the issue of a civil partnership schedule if a notice of proposed civil partnership in relation to that child has been recorded in the register. If the issue of a civil partnership schedule is forbidden in this way, the notice and all proceedings on it are void. However, a person cannot forbid the issue of a civil partnership schedule if the court has given its consent under paragraphs 3 or 4.

504.     Paragraph 7 provides that if a person declares that the consent of a person whose consent is required has been given, the registration authority may nevertheless refuse to issue the civil partnership schedule unless written evidence is produced that consent has in fact been given.

505.     Paragraph 8 provides an exception to the duty in clause 15(1) to issue a civil partnership schedule. This duty does not apply if the issue of a civil partnership schedule has been forbidden under paragraph 6.

506.     Paragraph 9 provides that if a civil partnership schedule is issued in relation to a proposed civil partnership between a child and another person, it must contain a statement that its issue has not been forbidden under paragraph 6.

507.     Paragraphs 10 to 14 set out provisions relating to the special procedure. The special procedure enables a civil partnership registration to take place very quickly, where one of the couple is seriously ill and not expected to recover. Paragraph 10 deals with the situation where a person's consent to a child registering as a civil partner under the special procedure is unobtainable or refused. Consent may be dispensed with by the Registrar General where it cannot be obtained or in either case, an application can be made to the court to give its consent. Paragraph 11 sets out the additional statement as to whether or not the required consents have been obtained which the declaration accompanying the notice of proposed civil partnership must contain if one of the proposed civil partners is under 18, has not previously been a civil partner, and wishes to register under the special procedure. Paragraph 12 states that paragraph 6 (Forbidding proposed civil partnership) applies in relation to the special procedure, with certain modifications. Paragraph 13 provides that the Registrar General may require evidence to satisfy him that a person's consent has in fact been given. Paragraph 14 provides that the duty of the Registrar General to give authority for the issue of a Registrar General's licence under clause 26(3)(b) does not apply if he has been forbidden to do so under paragraph 12.

508.     Paragraph 15 defines "the court" for the purposes of Schedule 3 and provides for rules of court to be made in relation to applications made under the provisions of this Schedule.

Schedule 4 - Registration by former spouses one of whom has changed sex

509.     Schedule 4 makes it possible for two parties to a marriage, who wish to stay together when one of them is changing gender, to have their marriage annulled and to register as civil partners of each other on the same day if so desired. Schedule 4 applies if a court makes absolute a decree of nullity granted on the ground that an interim gender recognition certificate has been issued to the party to the marriage (or, in Scotland, after granting a divorce on that ground) and on doing so, issues a full gender recognition certificate (under section 5(1) of the Gender Recognition Act 2004) after, and the parties wish to register a civil partnership without delay. In order to make use of the provisions in Schedule 4, the parties must give notice of proposed civil partnership within "the relevant period".

510.     Paragraph 2 defines "the relevant period" as the period beginning with the issue of the full gender recognition certificate and ending 1 month after the day of issue.

511.     Paragraph 3 provides for Chapter 1 of Part 2 to apply with the modifications set out in paragraphs 4 to 6 if each of the parties gives notice of proposed civil partnership during the "relevant period" and makes an election under this paragraph.

512.      Paragraph 4 modifies the standard procedure to allow a couple to register as civil partners without the proposed civil partnership being publicised or for a waiting period to be completed before the civil partnership schedule is issued. The applicable period (during which the signing of the civil partnership schedule may take place) is the period of one month from the day on which notices of proposed civil partnership are given or if given on different days, the earlier of those days (instead of 12 months as in clause 18).

513.     Paragraph 5 modifies the house-bound persons procedure to treat the reference in clause 19 to the standard procedure as a reference to the standard procedure as modified by this Schedule and omits clause 19(c) (which provides for a 3 month registration period).

514.      Paragraph 6 modifies the detained persons procedure to treat the reference in clause 20 to the standard procedure as a reference to the standard procedure as modified by this Schedule and omits clause 20(c) (which provides for a 3 month registration period).

515.     Paragraph 7 extends the provisions of this Schedule to certain non-residents. Paragraph 7(1) and (5) provides that where one of the proposed civil partners resides in Scotland or Northern Ireland or a is a member of Her Majesty's forces serving outside the United Kingdom, that person is not required to give notice of proposed civil partnership in England or Wales in order to register in England or Wales if the other proposed civil partner does reside in England or Wales.

516.     Paragraph 7(6) provides that the person residing in England and Wales may give notice of proposed civil partnership and make the necessary declaration without regard to the fact that the other person is not residing in England or Wales, as would normally be required.

517.     Paragraph 7(7) provides that if the person in England and Wales gives notice of proposed civil partnership and makes an election under this paragraph; the provisions for registration in England and Wales apply with the modifications set out in paragraphs 4 to 6 (described above) and paragraph 7(8).

518.     Paragraph 7(8) sets out the further modifications that (a) a civil partnership schedule is not to be issued by the registration authority unless a certificate of no impediment is produced that has been issued under the "relevant provision", and (b) that the applicable period is calculated by reference to the day on which notice is given by the person resident in England or Wales.

519.     Paragraph 7(9) defines the "relevant provision" for a resident of Scotland as clause 95, for a resident of Northern Ireland as, clause 146; and for a member of Her Majesty's forces serving outside the United Kingdom as, section 231.

Schedule 5 - Wills, the administration of estates and family provision

520.     Schedule 5 makes provision for amending the Wills Act 1837, Public Trustee Act 1906, Administration of Estates Act 1925, Intestates' Estates Act 1952, Family Provision Act 1966, and Inheritance (Provision for Family and Dependants) Act 1975, so that civil partners are given the same rights as those that exist for married people.

521.     Paragraph 2 inserts new sections 18B and 18C in the Wills Act 1837. The effect of these amendments is that, with the same limited exceptions as apply to marriage, a will is revoked when the testator forms a civil partnership with someone. They will also - once the civil partnership has been dissolved, annulled or made the subject of a presumption of death order - prevent former civil partners, where named as executors in the will, from becoming executors, and former civil partners named as beneficiaries in the will, from inheriting, unless the will provides otherwise.

522.     Paragraph 3 applies the provisions of the Wills Act 1837 and the Wills Act 1968 so as to prevent the passing of gifts to a civil partner who attests to the signature of the testator except where the will would have been valid without that signature.

523.     Paragraph 4 amends section 16 of the Wills Act 1837 so that where the civil partner of a creditor of the testator witnesses the will, he or she may be admitted as a witness in proceedings about the will.

524.     Paragraph 5 provides that the deceased's civil partner has priority over the issue of the testator should the testator bequeath the same gift separately to both of them.

525.     Paragraph 6 amends section 6 of the Public Trustee Act 1906 to place surviving civil partners in the same position as surviving spouses in having priority over the Public Trustee in being granted probate or letters of administration.

526.     Paragraph 7 amends section 46 of the Administration of Estates Act 1925 to allow surviving civil partners to inherit the estate of their deceased civil partner under the intestacy rules in the same way as surviving spouses, and so that the fact that an intestate person does not leave a surviving civil partner is taken into account in the same way as the fact that there is no surviving spouse in determining the succession to his real and personal estate.

527.     Paragraph 8 amends section 47 of the 1925 Act so that an intestate's residuary estate is held on trust for those of his children (or their issue if they predecease the intestate) who reach the age of 18, or marry, or form a civil partnership, under that age.

528.     Paragraph 9 amends section 47A of the 1925 Act so as to provide that surviving civil partners shall have the same right as surviving spouses to redeem their life interest in their share of the intestate's residuary estate.

529.     Paragraph 10 amends section 48 of the 1925 Act so as to provide that a personal representative shall have the same power to raise sums in respect of a surviving civil partner's interest as they do in respect of a surviving spouse's interest.

530.     Paragraph 11 amends section 51 of the 1925 Act so that where a minor who is equitably entitled to property under a trust dies he is deemed to have had a life interest in the property if he has married nor formed a civil partnership.

531.     Paragraph 12 amends section 55(1)(xviii) of the 1925 Act by adding the formation of a civil partnership to marriage in the definition of 'valuable consideration'.

532.     Paragraph 13 amends section 5 of and Schedule 2 to the Intestates' Estate Act 1952 by allowing the surviving civil partner to acquire the home he or she has shared with the deceased civil partner.

533.     Paragraph 14 amends section 1 of the Family Provision Act 1966 to allow increases in the fixed net sum which a surviving civil partner may receive from the estate of their deceased civil partner.

534.     Paragraph 15 amends section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 by adding civil partners and former civil partners to the class of persons entitled to make an application for reasonable financial provision from the estate of their deceased civil partner.

535.     Paragraph 16 amends section 2 of the 1975 Act by extending the court's powers to enable it to make orders varying any settlement made on the civil partners either during the civil partnership, or in anticipation of one being formed, including any variation in favour of any children of both the civil partners or of any person treated by the civil partners as a child of the family in relation to the civil partnership.

536.     Paragraph 17 amends section 3 of the 1975 Act by providing that the court, when considering an application for reasonable financial provision from the deceased's estate by a civil partner or a former civil partner, shall take into account the duration of the civil partnership and what the applicant might have received had the civil partnership been ended by being dissolved instead of by death.

537.     Paragraph 18 amends section 6 of the 1975 Act by adding the formation of a subsequent civil partnership as an exception to the events that can cause an order for periodical payment to cease to have effect.

538.     Paragraph 19 inserts a new section 14A into the 1975 Act. Section 14A provides that if a civil partner dies within a year of the making of a dissolution, nullity or separation order in relation to the civil partnership, and no application for financial provision has been made or determined, the court may treat a surviving civil partner who applies for an order under the 1975 Act as if the dissolution, nullity or separation order had not been made.

539.     Paragraph 20 inserts a new section 15ZA into the 1975 Act. Section 15ZA empowers the court, when making an order to end a civil partnership either by dissolution, or by nullity, or by separation or by presumption of death, (or at any time after making such an order), to order that neither of the civil partners, on the death of the other, shall be allowed to make an application for reasonable financial provision out of the deceased partner's estate.

540.     Paragraph 21 inserts a new section 15B into the 1975 Act. Section 15B extends the powers contained in section 15ZA to civil partnerships that were ended overseas.

541.     Paragraph 22 amends section 16 of the 1975 Act so that a court hearing an application for reasonable financial provision from the deceased's estate can vary or discharge secured periodical payments orders made prior to the death of the deceased under Schedule 5 to the Bill (as enacted).

542.     Paragraph 23 amends section 17 of the 1975 Act to allow for the court hearing an application for reasonable financial provision from the deceased's estate to vary or revoke any maintenance agreement made between civil partners prior to the death of one of them.

543.     Paragraph 24 inserts a new section 18A into the 1975 Act. Section 18A provides that where a civil partner has been ordered by the court to pay a secured periodical payment to their civil partner or has entered into a maintenance agreement with their civil partner, and then has died, the surviving civil partner's subsequent application to have the payment order or the maintenance agreement varied or discharged, may be treated as though it was accompanied by an application by them for reasonable financial provision from the estate of the deceased civil partner. The court may then make any order that it could have made on an application under the 1975 Act.

544.     Paragraph 25 amends section 19 of the 1975 Act so that its scope covers civil partners, former civil partners and the formation of civil partnerships.

545.     Paragraph 26 amends section 25 of the 1975 Act, the interpretation section, to insert references to civil partners and civil partnership as appropriate.

 
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Prepared: 7 July 2004