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

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Schedule 10 - Family homes and domestic violence

Part 1 - Amendments of the Family Law Act 1996 (c.27)

658.     This Part extends the provisions relating to matrimonial homes and domestic violence contained in Part 4 of the Family Law Act 1996 ("the 1996 Act") so as to apply to civil partners as they apply to married persons.

659.     Part I of the Schedule amends sections 30 to 37, 42, 44, 49, 54 and 62 to 63 and Schedules 4 and 7 to the Family Law Act 1996. The amendments consist mainly of adding the words "civil partner", "civil partnership" and "civil partnership home", as appropriate, in order to extend the rights of spouses under those provisions to civil partners. Part I also amends references to "matrimonial home rights" to read "home rights", so that the description covers the rights of both married people and civil partners. The amendments provide for civil partners to apply for non-molestation orders and occupation orders, and grant civil partners the same rights to occupy the civil partnership home, as married people currently have to occupy the matrimonial home. The civil partner's right to occupy the civil partnership home will be a charge on the property.

660.     The amendments made to Schedule 7 will enable certain tenancies to be transferred on the dissolution of a civil partnership or following a declaration of nullity of a civil partnership.

Part 2 - Consequential amendments

661.     This Part makes amendments consequential on the amendments to the 1996 Act in respect of the following Acts:

    Land Compensation Act 1973 (c.26)

    Housing Act 1985 (c.68)

    Insolvency Act 1986 (c.45)

    Housing Act 1988 (c.50)

    Commonhold and Leasehold Reform Act 2002 (c.15)

Part 3 - Transitional arrangements

662.     This Part provides that all references to rights of occupation and matrimonial home rights (within the meaning of the Matrimonial Homes Act 1983 and the 1996 Act respectively) in any enactment, instrument or document shall be read, so far as is necessary for continuing the effect of the enactment, instrument or document as being or including a reference to home rights under Part 4 of the 1996 Act as amended by this Schedule. This Part also provides that all references to home rights before the Schedule is brought into force shall be read as including rights of occupation and matrimonial home rights without the amendments made by the Schedule. Therefore the rights conferred on civil partners by this Schedule will take effect from the date the Schedule is brought into force and are not retrospective.

Schedule 11 - Forbidden degrees of relationship: Scotland

663.     Paragraph 1 of Schedule 11 lists the relationships connecting people that absolutely forbid the registration of a civil partnership between them. Paragraphs 2 and 3 list the relationships connecting people that forbid the registration of a civil partnership between them, unless the requirements specified in clause 86 are met.

664.     The prohibitions in Schedule 11 closely follow those that are set out in the Marriage (Scotland) Act 1977.

Schedule 12 - Financial provision in Scotland after overseas proceedings

665.     This Schedule explains the circumstances under which a Scottish court may consider an application for financial provision following the dissolution or annulment of a civil partnership overseas.

Part 1- Introductory

666.     This Part states that the provisions of Schedule 12 will apply wherever a civil partnership has been dissolved or annulled after judicial or other proceedings overseas, and the dissolution or annulment is entitled to recognition in Scotland. Dissolutions or annulments granted before the commencement of Schedule 11 are included. "Overseas" is defined as meaning outside the British Islands.

Part 2- Circumstances in which court may entertain application for financial provision

667.      This Part provides that the Scottish court may entertain an application by one of the former (or former ostensible) civil partners following the overseas dissolution or annulment if the criteria specified in paragraphs 2(2) and (3) are satisfied. The application must be made by the party who did not initiate the overseas proceedings, and must be made within five years of the overseas dissolution or annulment taking effect. Both former partners must be alive when the application is made. The other criteria are designed to ensure a substantial connection between the civil partnership and Scotland, and between the parties and both Scotland and the jurisdiction of the relevant court. Paragraph 2(4) gives priority to the jurisdictional standards set out in Part 1 of the Civil Jurisdiction and Judgements Act 1982 and in Council Regulation (EC) No 44/2001, which will supersede the criteria in paragraph 2(2) where they apply.

Part 3 - Disposal of Applications

668.     Under this Part, Scots law will generally apply to the disposal of the application. In particular, the court is to endeavour to place the parties in the position they would have been in had the application for financial provision been disposed of by the Scottish court as part of a Scottish action for dissolution or annulment and on the date when the overseas dissolution or annulment took effect. The court is to have regard to the resources of the parties and to any order for financial provision already made overseas in or in connection with the foreign dissolution or annulment proceedings. An interim periodical allowance may be ordered where appropriate to relieve hardship. However, where the Scottish court's jurisdiction is based solely on the presence of a former family home of the parties in which the respondent has an interest, any order made must relate to the family home, its contents or their capital value.

Part 4 - The expression "order for financial provision"

669.     This Part defines the term "order for financial provision" with reference to section 8(1) of the Family Law (Scotland) Act 1985 (as amended by this Bill), and to clause 109.

Schedule 13 - Prohibited degrees of relationship: Northern Ireland

670.     This Schedule sets out the degrees of relationship between persons who may not register as civil partners of each other. It deals with both absolute prohibitions and qualified prohibitions and corresponds to prohibitions to marriage.

671.     Paragraph 1 contains the list of absolute prohibitions. No civil partnership between two persons who stand in relation to each other as described in paragraph 1 is ever valid.

672.     Paragraphs 2 and 3 and deal with qualified prohibitions. A civil partnership between two persons who stand in relation to each other as described in paragraph 2(1) and 3 is not valid unless certain conditions apply.

673.     Paragraph 2 deals with what may be referred to as "step-relationships". For example, a civil partnership between a woman and the child of her former wife or civil partner will not be valid unless both have reached the age of 21 and the younger of the two persons has not at any time before reaching the age of 18 been a child of the family in relation to the other person.

674.     Paragraph 2(1) defines "child of the family" to mean a person who (a) has lived in the same household as the other person and (b) has been treated by that other person as a child of the family.

675.     Paragraph 3 deals with civil partnerships between what may be referred to as "in-laws". For example, a civil partnership between a man and the husband or former civil partner of his child will not be valid unless both have reached the age of 21 and both the man's child and that child's other parent are dead.

Schedule 14 - Civil partnerships of persons under 18: Northern Ireland

676.     This Schedule deals with the issue of "consent" where a person under the age of 18 wishes to register a civil partnership with another person.

677.     Paragraphs 1 and 2 lists the persons or bodies whose consent is needed to the civil partnership of a person between the age of 16 and 18 and the circumstances in which their consent is required.

678.     Paragraph 3 provides a county court in Northern Ireland with power to make an order dispensing with the consent of any person required by paragraph 1 if the court is satisfied that the registration of the civil partnership is in the best interests of the young person. This jurisdiction is exercisable by the county court in 3 circumstances: (1) it is not reasonably practicable to obtain the consent of the person whose consent is required; (2) that person has refused or withheld consent to the civil partnership; or (3) there is uncertainty as to whose consent to the civil partnership is required.

679.     Paragraphs 4 to 7 provide that details of consents to the civil partnership of a young person are to be sent to and recorded by the registrar. Paragraph 7 applies clause 136(5) to the record of consents under this Schedule and a person claiming to have reason to object to the proposed civil partnership may inspect any entry relating to the proposed civil partnership free of charge.

Schedule 15: Wills, administration of estates and family provision: Northern Ireland

680.     Schedule 15 makes provision for amending the Wills and Administration Proceedings (Northern Ireland) Order 1994, Administration of Estates Act (Northern Ireland) 1955 and Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979 so that civil partners are given the same rights as those that exist for married people.

681.     Paragraph 2 amends Article 4(1) of the Wills and Administration Proceedings (Northern Ireland) Order 1994 so that a will made by a person who is under eighteen years shall be valid if that person is or has been in a civil partnership.

682.     Paragraph 3 amends Article 8(1) and (3) of the Wills and Administration Proceedings (Northern Ireland) Order 1994 so as to prevent the passing of property to a civil partner who attests to the signature of the testator except where the will would have been valid without that signature.

683.     Paragraph 4 amends Article 9 of the Wills and Administration Proceedings (Northern Ireland) Order 1994 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.

684.     Paragraph 5 inserts new Articles 13A and 13B in the Wills and Administration Proceedings (Northern Ireland) Order 1994. 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.

685.     Paragraph 6 amends Article 14 of the Wills and Administration Proceedings (Northern Ireland) Order 1994 to recognise a will is revocable by a marriage or formation of a civil partnership.

686.     Paragraph 7 amends Article 23 of the Wills and Administration Proceedings (Northern Ireland) Order 1994 so 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.

687.     Paragraph 8 amends Article 27(3) of the Wills and Administration Proceedings (Northern Ireland) Order 1994 so that its scope includes issue who are in civil partnerships as well as those who are married.

688.     Paragraph 9 amends section 6A of the Administration of Estates Act (Northern Ireland) 1955 so that where an intestate dies leaving a civil partner and that civil partner dies within 28 days of the intestate's death, the provisions relating to the distribution of property on intestacy shall have effect as regards the intestate as if the civil partner had not survived the intestate.

689.     Paragraph 10 amends section 7 of the Administration of Estates Act (Northern Ireland) 1955 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.

690.     Paragraph 11 amends section 8 of the Administration of Estates Act (Northern Ireland) 1955 so that the distribution of an intestate's property to his/her issue shall be subject to the rights of a surviving civil partner.

691.     Paragraph 12 amends section 9 of the Administration of Estates Act (Northern Ireland) 1955 so that the rights of an intestate's parents to the property of an intestate who leaves no issue, shall be subject to the rights of a surviving civil partner or spouse.

692.     Paragraph 13 amends section 10 of the Administration of Estates Act (Northern Ireland) 1955 so that the rights of an intestate's siblings to the property of an intestate who leaves neither issue nor parent, shall be subject to the rights of a surviving civil partner or spouse.

693.     Paragraph 14 amends section 11 of the Administration of Estates Act (Northern Ireland) 1955 so as to provide that the rights of the intestate's next-of-kin to the intestate's property shall be subject to the rights of a surviving civil partner in the same way as they would be subject to the rights of a surviving spouse.

694.     Paragraph 15 amends section 38 of the Administration of Estates Act (Northern Ireland) 1955 so that an intestate's residuary or whole estate may be 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.

695.     Paragraph 16 amends Article 2 of the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979, the interpretation section, to insert references to civil partners and civil partnership as appropriate.

696.     Paragraph 17 amends Article 3 of the 1979 Order 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.

697.     Paragraph 18 amends Article 4 of the 1979 Order 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.

698.     Paragraph 19 amends Article 5 of the 1979 Order 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.

699.     Paragraph 20 amends Article 8(3) and (10) of the 1979 Order 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.

700.     Paragraph 21 inserts a new Article 16A into the 1979 Order. Article 16A 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 1979 Order as if the dissolution, nullity or separation order had not been made.

701.     Paragraph 22 inserts a new Article 17ZA into the 1979 Order. Article 17ZA 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.

702.     Paragraph 23 inserts a new Article 17B into the 1979 Order. Article 17B extends the powers contained in section 17ZA to civil partnerships that were ended overseas.

703.     Paragraph 24 amends Article 18(1) of the 1979 Order 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 16 (Financial relief in the High Court or a county court: Northern Ireland) to the Bill (as enacted).

704.     Paragraph 25 amends Article 19(4) of the 1979 Order 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.

705.     Paragraph 26 inserts a new Article 20A into the 1979 Order. Article 20A 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 1979 Order.

706.     Paragraph 27 amends Article 21 of the 1979 Order so that its scope covers civil partners, former civil partners and the formation of civil partnerships.

Schedule 16: Financial Relief in the High Court or a county court etc.: Northern Ireland

707.     This Schedule provides for adjustment of financial provision and property rights of civil partners when a civil partnership is brought to an end and provides corresponding rights to those available to married people on divorce.

Part 1 - Financial Provision in Connection With Dissolution, Nullity or separation

708.     This Part outlines the circumstances in which the High Court or a county court (with jurisdiction) can make an order for financial provision relating to dissolution, nullity or separation orders in connection with a civil partnership. It states that the court may make an order for a lump sum or 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. The court can order periodical payments to be made for a specified time only and can order the civil partner paying to secure the payments by means of a charge or other arrangement. Part 1 also provides for special provisions to be made for lump sum orders either to be paid in instalments or to be secured by a charge on property. Lump sums payments can take account of liabilities or reasonable expenses incurred before the application was made. Where a lump sum order is deferred or ordered to be paid in instalments provision can be made for interest. Where an order is for periodical payments or a lump sum solely to the other civil partner in dissolution or nullity proceedings the order or settlement does not take effect until the dissolution or nullity order has been made final.

Part 2 - Property Adjustment On or After Dissolution, Nullity or Separation.

709.     This Part allows for property adjustment orders to be made on or after dissolution, nullity or separation. This provides for property to be transferred from one civil partner to the other or to a child of the family or to another person for the benefit of a child of the family. It also allows for a settlement of specified property to be made for the benefit of the other civil partner and/or children of the family. An order for a relevant settlement can be varied and the interest extinguished or reduced. Variation of a property adjustment order may be made even if there are no children of the family. In the case of a dissolution or nullity order the property adjustment or settlement can only take effect after the dissolution or nullity order has been made final.

Part 3 - Pension Sharing Orders On or After Dissolution or Nullity Order

710.     The Part provides for a pension sharing order to be made so that both civil partners share the benefit of the value of a pension that had previously been held by only one of the partners. The value of the pension is effectively split and the court specifies the amount (in percentage terms) transferred to the other civil partner. The Court can apportion any charge from the cost of making pension sharing arrangements. A pension sharing order cannot be made on a pension that is, or has already been, the subject of a pension sharing order between the same two civil partners, or where there is already in force an order under Part 5 in relation to the same pension. The order can only take effect after the dissolution or nullity order has been made final. The Lord Chancellor, in regulations, can set a minimum period before a pension order can take effect.

Part 4 - Matters to which the Court is to have regard under Parts 1 to 3

711.     This Part sets out the matters which the court must consider when exercising its powers to make orders under the preceding three Parts. Whilst all the circumstances of the case have to be considered the first consideration has to be given to the welfare of any child of the family under 18 years old. The criteria the court must consider under this Part are parallel to those contained in Article 27 of the Matrimonial Causes (Northern Ireland) Order 1978 and reflect the relative financial positions of the civil partners, their current and future obligations, their age and the duration of the civil partnership and the contributions each civil partner has made to the welfare of the family, whether in financial terms or by caring or looking after the home. The conduct of each civil partner will be taken into account if it would be unfair to disregard it. When exercising the powers in relation to a child of the family the court has to consider the financial needs and resources of the child in addition to the financial position of the civil partners. Where a child is not a child of one of the civil partners the court needs to look at any responsibility that civil partner had assumed for the child and the duration of such responsibility. The court has to consider the appropriateness of the orders under Parts 1 to 3 in respect of termination of financial dependence or involvement.

Part 5 - Making of Part 1 Orders Having Regard to Pension Benefits

712.     This Part describes the matters the court must have regard to when taking into account the considerations in Part 4 where a pension arrangement exists and the procedure for making orders in relation to a pension benefit of one civil partner when it becomes due to make payments (in terms of an amount or percentage) for the benefit of the other civil partner. Any such payment discharges the civil partner's liability under the order. Where no pension sharing order has been made on the pension arrangement and that pension includes a lump sum payable on death the court can order that the other civil partner receives the whole or part of that sum. The Lord Chancellor can make regulations addressing: payment from a pension arrangement to be made for the benefit of the other civil partner, the terms on which payment is made, payments made under a mistaken belief, discharges from requirements imposed by this Part, calculation and verification of the valuation of the pension.

Part 6 - Maintenance Pending Outcome of Dissolution, Nullity or Separation Proceedings

713.     This Part allows for the court to order one of the civil partners to make periodic payments for maintenance for the other civil partner before the final outcome of the proceedings has been determined.

Part 7 - Failure to maintain: Financial provision (and interim orders)

714.     This Part allows either civil partner to apply to the court because the other civil partner has failed to maintain them adequately or has failed to provide for, or make a proper contribution towards, the welfare of any child of the family. The court is empowered to make a range of orders, including orders for periodic payments for a set period of time, a lump sum payment and an order to secure payments. The court may make an order in favour of the other civil partner, the child of the family or another person for the benefit of the child. An order for a lump sum payment can be made to cover reasonable expenses and liabilities incurred in maintaining the applicant or any child of the family before the application was made. Where there is immediate need of financial assistance an interim order can be made. The Part sets out the matters the court must consider when deciding whether proper maintenance has been provided, which are the same as used in other financial provision cases as set out in Part 4.

 
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Prepared: 7 July 2004