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Civil Partnership Bill [HL]


Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 1 — Registration

16

 

35      

Power to assimilate provisions relating to civil registration

(1)   

The Chancellor of the Exchequer may by order make—

(a)   

such amendments of this Act as appear to him appropriate for the

purpose of assimilating any provision connected with the formation or

recording of civil partnerships in England and Wales to any provision

5

made (whether or not under an order under section 1 of the Regulatory

Reform Act 2001 (c. 6)) in relation to civil marriage in England and

Wales, and

(b)   

such amendments of other enactments and of subordinate legislation as

appear to him appropriate in consequence of any amendments made

10

under paragraph (a).

(2)   

“Civil marriage” means marriage solemnised otherwise than according to the

rites of the Church of England or any other religious usages.

(3)   

“Amendment” includes repeal or revocation.

(4)   

“Subordinate legislation” has the same meaning as in the Interpretation Act

15

1978 (c. 30).

36      

Regulations and orders

(1)   

Regulations may make provision supplementing the provisions of this

Chapter.

(2)   

Regulations may in particular make provision—

20

(a)   

relating to the use of Welsh in documents and records relating to civil

partnerships;

(b)   

with respect to the retention of documents relating to civil partnerships;

(c)   

prescribing the duties of civil partnership registrars;

(d)   

prescribing the duties of persons in whose presence any declaration is

25

made for the purposes of this Chapter;

(e)   

for the issue by the Registrar General of guidance supplementing any

provision made by the regulations.

(f)   

for the issue by registration authorities or the Registrar General of

certified copies of entries in the register and for such copies to be

30

received in evidence.

(3)   

In this Chapter “regulations” means regulations made by the Registrar General

with the approval of the Chancellor of the Exchequer.

(4)   

Any power to make regulations or an order under this Chapter is exercisable

by statutory instrument.

35

(5)   

A statutory instrument containing an order under section 34 is subject to

annulment in pursuance of a resolution of either House of Parliament.

(6)   

No order may be made under section 35 unless a draft of the statutory

instrument containing the order has been laid before, and approved by a

resolution of, each House of Parliament.

40

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings

17

 

Chapter 2

Dissolution, nullity and other proceedings

Introduction

37      

Powers to make orders and effect of orders

(1)   

The court may, in accordance with this Chapter—

5

(a)   

make an order (a “dissolution order”) which dissolves a civil

partnership on the ground that it has broken down irretrievably;

(b)   

make an order (a “nullity order”) which annuls a civil partnership

which is void or voidable;

(c)   

make an order (a “presumption of death order”) which dissolves a civil

10

partnership on the ground that one of the civil partners is presumed to

be dead;

(d)   

make an order (a “separation order”) which provides for the separation

of the civil partners.

(2)   

Every dissolution, nullity or presumption of death order—

15

(a)   

is, in the first instance, a conditional order, and

(b)   

may not be made final before the end of the prescribed period (see

section 38);

   

and any reference in this Chapter to a conditional order is to be read

accordingly.

20

(3)   

A nullity order made where a civil partnership is voidable annuls the civil

partnership only as respects any time after the order has been made final, and

the civil partnership is to be treated (despite the order) as if it had existed up to

that time.

(4)   

In this Chapter, other than in sections 58 to 61, “the court” means—

25

(a)   

the High Court, or

(b)   

if a county court has jurisdiction by virtue of Part 5 of the Matrimonial

and Family Proceedings Act 1984 (c. 42), a county court.

(5)   

This Chapter is subject to sections 219 to 224 (jurisdiction of the court).

38      

The period before conditional orders may be made final

30

(1)   

Subject to subsections (2) to (4), the prescribed period for the purposes of

section 37(2)(b) is—

(a)   

6 weeks from the making of the conditional order, or

(b)   

if the 6 week period would end on a day on which the office or registry

of the court dealing with the case is closed, the period of 6 weeks

35

extended to the end of the first day on which the office or registry is

next open.

(2)   

The Lord Chancellor may by order amend this section so as to substitute a

different definition of the prescribed period for the purposes of section

37(2)(b).

40

(3)   

But the Lord Chancellor may not under subsection (2) provide for a period

longer than 6 months to be the prescribed period.

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings

18

 

(4)   

In a particular case the court dealing with the case may by order shorten the

prescribed period.

(5)   

The power to make an order under subsection (2) is exercisable by statutory

instrument.

(6)   

An instrument containing such an order is subject to annulment in pursuance

5

of a resolution of either House of Parliament.

39      

Intervention of the Queen’s Proctor

(1)   

This section applies if an application has been made for a dissolution, nullity

or presumption of death order.

(2)   

The court may, if it thinks fit, direct that all necessary papers in the matter are

10

to be sent to the Queen’s Proctor who must under the directions of the

Attorney General instruct counsel to argue before the court any question in

relation to the matter which the court considers it necessary or expedient to

have fully argued.

(3)   

If any person at any time—

15

(a)   

during the progress of the proceedings, or

(b)   

before the conditional order is made final,

   

gives information to the Queen’s Proctor on any matter material to the due

decision of the case, the Queen’s Proctor may take such steps as the Attorney

General considers necessary or expedient.

20

(4)   

If the Queen’s Proctor intervenes or shows cause against the making of the

conditional order in any proceedings relating to its making, the court may

make such order as may be just as to—

(a)   

the payment by other parties to the proceedings of the costs incurred by

him in doing so, or

25

(b)   

the payment by the Queen’s Proctor of any costs incurred by any of

those parties because of his doing so.

(5)   

The Queen’s Proctor is entitled to charge as part of the expenses of his office—

(a)   

the costs of any proceedings under subsection (2);

(b)   

if his reasonable costs of intervening or showing cause as mentioned in

30

subsection (4) are not fully satisfied by an order under subsection (4)(a),

the amount of the difference;

(c)   

if the Treasury so directs, any costs which he pays to any parties under

an order made under subsection (4)(b).

40      

Proceedings before order has been made final

35

(1)   

This section applies if—

(a)   

a conditional order has been made, and

(b)   

the Queen’s Proctor, or any person who has not been a party to

proceedings in which the order was made, shows cause why the order

should not be made final on the ground that material facts have not

40

been brought before the court.

(2)   

This section also applies if—

(a)   

a conditional order has been made,

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings

19

 

(b)   

3 months have elapsed since the earliest date on which an application

could have been made for the order to be made final,

(c)   

no such application has been made by the civil partner who applied for

the conditional order, and

(d)   

the other civil partner makes an application to the court under this

5

subsection.

(3)   

The court may—

(a)   

make the order final,

(b)   

rescind the order,

(c)   

require further inquiry, or

10

(d)   

otherwise deal with the case as it thinks fit.

(4)   

Subsection (3)(a)—

(a)   

applies despite section 37(2) (period before conditional orders may be

made final), but

(b)   

is subject to section 48(4) (protection for respondent in separation cases)

15

and section 63 (restrictions on making of orders affecting children).

41      

Time bar on applications for dissolution orders

(1)   

No application for a dissolution order may be made to the court before the end

of the period of 1 year from the date of the formation of the civil partnership.

(2)   

Nothing in this section prevents the making of an application based on matters

20

which occurred before the end of the 1 year period.

42      

Attempts at reconciliation of civil partners

(1)   

This section applies in relation to cases where an application is made for a

dissolution or separation order.

(2)   

Rules of court must make provision for requiring the solicitor acting for the

25

applicant to certify whether he has—

(a)   

discussed with the applicant the possibility of a reconciliation with the

other civil partner, and

(b)   

given the applicant the names and addresses of persons qualified to

help effect a reconciliation between civil partners who have become

30

estranged.

(3)   

If at any stage of proceedings for the order it appears to the court that there is

a reasonable possibility of a reconciliation between the civil partners, the court

may adjourn the proceedings for such period as it thinks fit to enable attempts

to be made to effect a reconciliation between them.

35

(4)   

The power to adjourn under subsection (3) is additional to any other power of

adjournment.

43      

Consideration by the court of certain agreements or arrangements

(1)   

This section applies in relation to cases where—

(a)   

proceedings for a dissolution or separation order are contemplated or

40

have begun, and

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings

20

 

(b)   

an agreement or arrangement is made or proposed to be made between

the civil partners which relates to, arises out of, or is connected with, the

proceedings.

(2)   

Rules of court may make provision for enabling—

(a)   

the civil partners, or either of them, to refer the agreement or

5

arrangement to the court, and

(b)   

the court—

(i)   

to express an opinion, if it thinks it desirable to do so, as to the

reasonableness of the agreement or arrangement, and

(ii)   

to give such directions, if any, in the matter as it thinks fit.

10

Dissolution of civil partnership

44      

Dissolution of civil partnership which has broken down irretrievably

(1)   

Subject to section 41, an application for a dissolution order may be made to the

court by either civil partner on the ground that the civil partnership has broken

down irretrievably.

15

(2)   

On an application for a dissolution order the court must inquire, so far as it

reasonably can, into—

(a)   

the facts alleged by the applicant, and

(b)   

any facts alleged by the respondent.

(3)   

The court hearing an application for a dissolution order must not hold that the

20

civil partnership has broken down irretrievably unless the applicant satisfies

the court of one or more of the facts described in subsection (5)(a), (b), (c) or (d).

(4)   

But if the court is satisfied of any of those facts, it must make a dissolution

order unless it is satisfied on all the evidence that the civil partnership has not

broken down irretrievably.

25

(5)   

The facts referred to in subsections (3) and (4) are—

(a)   

that the respondent has behaved in such a way that the applicant

cannot reasonably be expected to live with the respondent;

(b)   

that—

(i)   

the applicant and the respondent have lived apart for a

30

continuous period of at least 2 years immediately preceding the

making of the application (“2 years’ separation”), and

(ii)   

the respondent consents to a dissolution order being made;

(c)   

that the applicant and the respondent have lived apart for a continuous

period of at least 5 years immediately preceding the making of the

35

application (“5 years’ separation”);

(d)   

that the respondent has deserted the applicant for a continuous period

of at least 2 years immediately preceding the making of the application.

45      

Supplemental provisions as to facts raising presumption of breakdown

(1)   

Subsection (2) applies if—

40

(a)   

in any proceedings for a dissolution order the applicant alleges, in

reliance on section 44(5)(a), that the respondent has behaved in such a

way that the applicant cannot reasonably be expected to live with the

respondent, but

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings

21

 

(b)   

after the date of the occurrence of the final incident relied on by the

applicant and held by the court to support his allegation, the applicant

and the respondent have lived together for a period (or periods) which

does not, or which taken together do not, exceed 6 months.

(2)   

The fact that the applicant and respondent have lived together as mentioned in

5

subsection (1)(b) must be disregarded in determining, for the purposes of

section 44(5)(a), whether the applicant cannot reasonably be expected to live

with the respondent.

(3)   

Subsection (4) applies in relation to cases where the applicant alleges, in

reliance on section 44(5)(b), that the respondent consents to a dissolution order

10

being made.

(4)   

Rules of court must make provision for the purpose of ensuring that the

respondent has been given such information as will enable him to

understand—

(a)   

the consequences to him of consenting to the making of the order, and

15

(b)   

the steps which he must take to indicate his consent.

(5)   

For the purposes of section 44(5)(d) the court may treat a period of desertion as

having continued at a time when the deserting civil partner was incapable of

continuing the necessary intention, if the evidence before the court is such that,

had he not been so incapable, the court would have inferred that the desertion

20

continued at that time.

(6)   

In considering for the purposes of section 44(5) whether the period for which

the civil partners have lived apart or the period for which the respondent has

deserted the applicant has been continuous, no account is to be taken of—

(a)   

any one period not exceeding 6 months, or

25

(b)   

any two or more periods not exceeding 6 months in all,

   

during which the civil partners resumed living with each other.

(7)   

But no period during which the civil partners have lived with each other

counts as part of the period during which the civil partners have lived apart or

as part of the period of desertion.

30

(8)   

For the purposes of section 44(5)(b) and (c) and this section civil partners are to

be treated as living apart unless they are living with each other in the same

household, and references in this section to civil partners living with each other

are to be read as references to their living with each other in the same

household.

35

46      

Dissolution order not precluded by previous separation order etc.

(1)   

Subsections (2) and (3) apply if any of the following orders has been made in

relation to a civil partnership—

(a)   

a separation order;

(b)   

an order under Schedule 6 (financial relief in magistrates’ courts etc.);

40

(c)   

an order under section 33 of the Family Law Act 1996 (c. 27)

(occupation orders);

(d)   

an order under section 37 of the 1996 Act (orders where neither civil

partner entitled to occupy the home).

(2)   

Nothing prevents—

45

(a)   

either civil partner from applying for a dissolution order, or

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 2 — Dissolution, nullity and other proceedings

22

 

(b)   

the court from making a dissolution order,

   

on the same facts, or substantially the same facts, as those proved in support of

the making of the order referred to in subsection (1).

(3)   

On the application for the dissolution order, the court—

(a)   

may treat the order referred to in subsection (1) as sufficient proof of

5

any desertion or other fact by reference to which it was made, but

(b)   

must not make the dissolution order without receiving evidence from

the applicant.

(4)   

If—

(a)   

the application for the dissolution order follows a separation order or

10

any order requiring the civil partners to live apart,

(b)   

there was a period of desertion immediately preceding the institution

of the proceedings for the separation order, and

(c)   

the civil partners have not resumed living together and the separation

order has been continuously in force since it was made,

15

   

the period of desertion is to be treated for the purposes of the application for

the dissolution order as if it had immediately preceded the making of the

application.

(5)   

For the purposes of section 44(5)(d) the court may treat as a period during

which the respondent has deserted the applicant any period during which

20

there is in force—

(a)   

an injunction granted by the High Court or a county court which

excludes the respondent from the civil partnership home, or

(b)   

an order under section 33 or 37 of the 1996 Act which prohibits the

respondent from occupying a dwelling-house in which the applicant

25

and the respondent have, or at any time have had, a civil partnership

home.

47      

Refusal of dissolution in 5 year separation cases on grounds of grave hardship

(1)   

The respondent to an application for a dissolution order in which the applicant

alleges 5 years’ separation may oppose the making of an order on the ground

30

that—

(a)   

the dissolution of the civil partnership will result in grave financial or

other hardship to him, and

(b)   

it would in all the circumstances be wrong to dissolve the civil

partnership.

35

(2)   

Subsection (3) applies if—

(a)   

the making of a dissolution order is opposed under this section,

(b)   

the court finds that the applicant is entitled to rely in support of his

application on the fact of 5 years’ separation and makes no such finding

as to any other fact mentioned in section 44(5), and

40

(c)   

apart from this section, the court would make a dissolution order.

(3)   

The court must—

(a)   

consider all the circumstances, including the conduct of the civil

partners and the interests of the civil partners and of any children or

other persons concerned, and

45

(b)   

if it is of the opinion that the ground mentioned in subsection (1) is

made out, dismiss the application for the dissolution order.

 

 

 
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