Civil Partnership Bill [HL]

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Session 2002 - 03
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Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Schedule 9 — Family homes and domestic violence
Part 1 — Amendments of the Family Law Act 1996 (c.27)
226

Schedule 9
Section 82

Family homes and domestic violence
Part 1
Amendments of the Family Law Act 1996 (c. 27)
1     (1)
Amend section 30 (rights concerning matrimonial home where one spouse
5
has no estate, etc.) as follows.
      (2)
In subsection (1)—
(a)
in paragraph (a)—
(i)
after “one spouse” insert “or civil partner (“A”)”, and
(ii)
for “that spouse” substitute “A”.
10
(b)
in paragraph (b), after “other spouse” insert “or civil partner (“B”)”.
      (3)
In subsection (2)—
(a)
for “the spouse not so entitled” substitute “B”,
(b)
for “(“matrimonial home rights”)” substitute “(“home rights”)”, and
(c)
in paragraph (a), for “the other spouse” substitute “A”.
15
      (4)
In subsection (3)—
(a)
for “a spouse” and for “that spouse” substitute “B”, and
(b)
for “the other spouse” (in both places) substitute “A”.
      (5)
In subsection (4)—
(a)
for “A spouse’s” substitute “B’s”,
20
(b)
in paragraph (a), for “by the other spouse as the other spouse’s”
substitute “by A as A’s”, and
(c)
in paragraph (b)—
(i)
for “the spouse occupies the dwelling-house as that spouse’s”
substitute “B occupies the dwelling-house as B’s”, and
25
(ii)
for “by the other spouse as the other spouse’s” substitute “by
A as A’s”.
      (6)
In subsection (5)—
(a)
for “a spouse (“the first spouse”)” substitute “B”, and
(b)
in paragraph (b), for “the other spouse (“the second spouse”)”
30
substitute “A”,
(c)
for “the second spouse” substitute “A”, and
(d)
for “the first spouse against the second spouse” substitute “B against
A”.
      (7)
In subsection (6)—
35
(a)
for “a spouse” substitute “B”, and
(b)
for “the other spouse” (in both places) substitute “A”.
      (8)
In subsection (7), for the words from first “which” to the end substitute
“which—
(a)
in the case of spouses, has at no time been, and was at no time
40
intended by them to be, a matrimonial home of theirs; and
(b)
in the case of civil partners, has at no time been, and was at
no time intended by them to be, a civil partnership home of
theirs.”

Civil Partnership Bill [HL]
Schedule 9 — Family homes and domestic violence
Part 1 — Amendments of the Family Law Act 1996 (c.27)
227

      (9)
In subsection (8)—
(a)
for “A spouse’s matrimonial home rights” substitute “B’s home
rights”,
(b)
in paragraph (a), after “marriage” insert “or civil partnership”, and
(c)
in paragraph (b), for “the other spouse” substitute “A”.
5
     (10)
In subsection (9)—
(a)
for “a spouse” (in both places) substitute “a person”, and
(b)
for “matrimonial home rights” substitute “home rights”.
     (11)
In the heading to section 30, for “matrimonial home where one spouse”
substitute “home where one spouse or civil partner” and, in the preceding
10
cross-heading, after “matrimonial” insert “or civil partnership”.
2     (1)
Amend section 31 (effect of matrimonial home rights as charge on dwelling-
house) as follows.
      (2)
In subsection (1) for “marriage, one spouse” substitute “marriage or civil
partnership, A”.
15
      (3)
In subsection (2) for “The other spouse’s matrimonial home rights”
substitute “B’s home rights”.
      (4)
In subsection (3)—
(a)
in paragraph (a), for “the spouse so entitled” substitute “A”, and
(b)
in paragraph (b), after “marriage” insert “or of the formation of the
20
civil partnership”.
      (5)
In subsection (4)—
(a)
for “a spouse’s matrimonial home rights” substitute “B’s home
rights”,
(b)
for “the other spouse” substitute “A”, and
25
(c)
for “either of the spouses” substitute “A or B”.
      (6)
In subsection (5) for “the other spouse” substitute “A”.
      (7)
In subsection (7) for “the spouses” substitute “A and B”.
      (8)
In subsection (8)—
(a)
for “a spouse’s matrimonial home rights” substitute “B’s home
30
rights”,
(b)
in paragraph (a), for “the other spouse” substitute “A”, and
(c)
in paragraph (b), after “marriage” insert “or civil partnership”.
      (9)
In subsection (9)—
(a)
in paragraph (a), for “a spouse’s matrimonial home rights” substitute
35
“B’s home rights”, and
(b)
for “the other spouse” (in both places) substitute “A”.
     (10)
In subsection (10)—
(a)
for “a spouse” and for “that spouse” substitute “A”, and
(b)
in paragraph (b), for “a spouse’s matrimonial home rights”
40
substitute “B’s home rights”.
     (11)
For subsection (12)(a) substitute—
“(a)
B’s home rights are a charge on the estate of A or of trustees
of A, and”.
     (12)
In the heading to section 31, for “matrimonial home rights” substitute “home
45
rights”.

Civil Partnership Bill [HL]
Schedule 9 — Family homes and domestic violence
Part 1 — Amendments of the Family Law Act 1996 (c.27)
228

3
For section 32 (further provisions relating to matrimonial home rights)
substitute—
“32 Further provisions relating to home rights
Schedule 4 (provisions supplementary to sections 30 and 31) has
effect.”
5
4     (1)
Amend section 33 (occupation orders where applicant has estate or interest
etc. or has matrimonial home rights) as follows.
      (2)
In subsection (1)(a)(ii), for “matrimonial home rights” substitute “home
rights”.
      (3)
After subsection (2) insert—
10
“(2A)
If a civil partnership agreement (as defined by section 73 of the Civil
Partnership Act 2004) is terminated, no application under this
section may be made by virtue of section 62(3)(eza) by reference to
that agreement after the end of the period of three years beginning
with the day on which it is terminated.”
15
      (4)
In subsection (3)(e)—
(a)
for “matrimonial home rights” substitute “home rights”, and
(b)
after “spouse” insert “or civil partner”.
      (5)
In subsection (4), for “matrimonial home rights” substitute “home rights”.
      (6)
In subsection (5)—
20
(a)
for “matrimonial home rights” substitute “home rights”,
(b)
after “is the other spouse” insert “or civil partner”,
(c)
after “during the marriage” insert “or civil partnership”,
(d)
in paragraph (a), after “spouse” insert “or civil partner”, and
(e)
in paragraph (b), after “marriage” insert “or civil partnership”.
25
      (7)
In the heading to section 33, for “matrimonial home rights” substitute “home
rights”.
5
In section 34 (effect of order under section 33 where rights are charge on
dwelling-house), in subsection (1)—
(a)
for “a spouse’s matrimonial home rights” substitute “B’s home
30
rights”, and
(b)
for “the other spouse” (in each place) substitute “A”.
6     (1)
Amend section 35 (one former spouse with no existing right to occupy) as
follows.
      (2)
In subsection (1)(a) and (b), after “former spouse” insert “or former civil
35
partner”.
      (3)
For subsection (1)(c) substitute—
“(c)
the dwelling-house—
(i)
in the case of former spouses, was at any time their
matrimonial home or was at any time intended by
40
them to be their matrimonial home, or
(ii)
in the case of former civil partners, was at any time
their civil partnership home or was at any time
intended by them to be their civil partnership home.”
      (4)
In subsection (2), after “former spouse” (in both places) insert “or former
45
civil partner”.

Civil Partnership Bill [HL]
Schedule 9 — Family homes and domestic violence
Part 1 — Amendments of the Family Law Act 1996 (c.27)
229

      (5)
In subsection (6)(f), after “marriage” insert “or civil partnership”.
      (6)
After subsection (6)(g)(i), insert—
“(ia)
for a property adjustment order under Part 2 of
Schedule 5 to the Civil Partnership Act 2004;”.
      (7)
In subsection (9)(a), after “former spouses” insert “or former civil partners”.
5
      (8)
In subsections (11) and (12), after “former spouse” insert “or former civil
partner”.
      (9)
For subsection (13)(a) and (b) substitute—
“(a)
as if he were B (the person entitled to occupy the dwelling-
house by virtue of that section); and
10
(b)
as if the respondent were A (the person entitled as mentioned
in subsection (1)(a) of that section).”
     (10)
In the heading to section 35, after “former spouse” insert “or former civil
partner”.
7
In section 36 (one cohabitant or former cohabitant with no existing right to
15
occupy), for subsection (13)(a) and (b) substitute—
“(a)
as if he were B (the person entitled to occupy the dwelling-
house by virtue of that section); and
(b)
as if the respondent were A (the person entitled as mentioned
in subsection (1)(a) of that section).”
20
8     (1)
Amend section 37 (neither spouse entitled to occupy) as follows.
      (2)
After subsection (1) insert—
“(1A)
This section also applies if—
(a)
one civil partner or former civil partner and the other civil
partner or former civil partner occupy a dwelling-house
25
which is or was the civil partnership home; but
(b)
neither of them is entitled to remain in occupation—
(i)
by virtue of a beneficial estate or interest or contract;
or
(ii)
by virtue of any enactment giving him the right to
30
remain in occupation.”
      (3)
In subsection (3)(b), for “spouses” substitute “parties”.
      (4)
In the heading to section 37, after “spouse” insert “or civil partner”.
9
In section 42 (non-molestation orders), after subsection (4) insert—
“(4ZA)
If a civil partnership agreement (as defined by section 73 of the Civil
35
Partnership Act 2004) is terminated, no application under this
section may be made by virtue of section 62(3)(eza) by reference to
that agreement after the end of the period of three years beginning
with the day on which it is terminated.”
10    (1)
In section 44 (evidence of agreement to marry), after subsection (2) insert—
40
“(3)
Subject to subsection (4), the court shall not make an order under
section 33 or 42 by virtue of section 62(3)(eza) unless there is
produced to it evidence in writing of the existence of the civil
partnership agreement (as defined by section 73 of the Civil
Partnership Act 2004).
45

Civil Partnership Bill [HL]
Schedule 9 — Family homes and domestic violence
Part 1 — Amendments of the Family Law Act 1996 (c.27)
230

(4)
Subsection (3) does not apply if the court is satisfied that the civil
partnership agreement was evidenced by—
(a)
a gift by one party to the agreement to the other as a token of
the agreement, or
(b)
a ceremony entered into by the parties in the presence of one
5
or more other persons assembled for the purpose of
witnessing the ceremony.”
      (2)
In the heading to section 44, after “marry” insert “or form a civil
partnership”.
11
In section 49 (variation and discharge of orders), in subsection (3)—
10
(a)
for “a spouse’s matrimonial home rights” substitute “B’s home rights
are, under section 31,”, and
(b)
for “the other spouse” (in each place) substitute “A”.
12    (1)
Amend section 54 (dwelling-house subject to mortgage) as follows.
      (2)
In subsections (3)(a) and (4), for “matrimonial home rights” substitute
15
“home rights”.
      (3)
In subsection (5), after “spouse, former spouse” insert “, civil partner, former
civil partner”.
13    (1)
Amend section 62 (meaning of “cohabitants”, “relevant child” and
“associated persons”) as follows.
20
      (2)
In subsection (1)—
(a)
in paragraph (a), for “two persons who, although not married to each
other, are living together as husband and wife or (if of the same sex)
in an equivalent relationship;” substitute “two persons who are
neither married to each other nor civil partners of each other but are
25
living together as husband and wife or as if they were civil
partners;”, and
(b)
in paragraph (b), after “have subsequently married each other” insert
“or become civil partners of each other”.
      (3)
After subsection (3)(a) insert—
30
“(aa)
they are or have been civil partners of each other;”.
      (4)
After subsection (3)(e) insert—
“(eza)
they have entered into a civil partnership agreement (as
defined by section 73 of the Civil Partnership Act 2004)
(whether or not that agreement has been terminated);”.
35
14    (1)
Amend section 63 (interpretation of Part 4) as follows.
      (2)
In subsection (1), after the definition of “health” insert—

““home rights” has the meaning given by section 30;”.
      (3)
Omit the definition of “matrimonial home rights” in that subsection.
      (4)
In the definition of relative in that subsection—
40
(a)
in paragraphs (a) and (b), for “spouse or former spouse” substitute
“spouse, former spouse, civil partner or former civil partner”,
(b)
in paragraph (b), for “by affinity)” substitute “by marriage or civil
partnership)”, and
(c)
after “were married to each other” insert “or were civil partners of
45
each other”.

Civil Partnership Bill [HL]
Schedule 9 — Family homes and domestic violence
Part 1 — Amendments of the Family Law Act 1996 (c.27)
231

      (5)
After subsection (2)(i) insert—
“(j)
Schedules 5 to 7 to the Civil Partnership Act 2004.”
15    (1)
Amend Schedule 4 (provisions supplementary to sections 30 and 31) as
follows.
      (2)
In paragraph 2, after “spouse” (in both places) insert “or civil partner”.
5
      (3)
In paragraph 3(1) and (3), after “spouse” insert “or civil partner”.
      (4)
In paragraph 4(1), for “spouse’s matrimonial home rights” substitute
“spouse’s or civil partner’s home rights”.
      (5)
For paragraphs 4(1)(a) to (c) substitute—
“(a)
in the case of a marriage—
10
(i)
by the production of a certificate or other sufficient
evidence, that either spouse is dead,
(ii)
by the production of an official copy of a decree or
order of a court, that the marriage has been
terminated otherwise than by death, or
15
(iii)
by the production of an order of the court, that the
spouse’s home rights constituting the charge have
been terminated by the order, and
(b)
in the case of a civil partnership—
(i)
by the production of a certificate or other sufficient
20
evidence, that either civil partner is dead,
(ii)
by the production of an official copy of an order or
decree of a court, that the civil partnership has been
terminated otherwise than by death, or
(iii)
by the production of an order of the court, that the
25
civil partner’s home rights constituting the charge
have been terminated by the order.”
      (6)
In paragraph 4(2)—
(a)
in paragraph (a)—
(i)
after “marriage” insert “or civil partnership”, and
30
(ii)
after “spouse” insert “or civil partner”, and
(b)
in paragraph (b), after “spouse” insert “or civil partner”.
      (7)
In paragraph 4(3), after “spouse” insert “or civil partner”.
      (8)
In the heading to paragraph 4, after “marriage” insert “or civil partnership”.
      (9)
In paragraph 5(1), for “spouse entitled to matrimonial home rights”
35
substitute “spouse or civil partner entitled to home rights”.
     (10)
In paragraph 5(2)—
(a)
for “matrimonial home rights” substitute “home rights”, and
(b)
in paragraph (a), after “spouse” insert “or civil partner”.
     (11)
In the heading to paragraph 5, for “matrimonial home rights” substitute
40
“home rights”.
     (12)
In paragraph 6, after “spouse” (in both places) insert “or civil partner”.
16    (1)
Amend Schedule 7 (transfer of certain tenancies on divorce etc. or on
separation of cohabitants) as follows.
      (2)
In paragraph 1, before the definition of “cohabitant” insert—
45

““civil partner”, except in paragraph 2, includes (where the
context requires) former civil partner;”.

Civil Partnership Bill [HL]
Schedule 9 — Family homes and domestic violence
Part 1 — Amendments of the Family Law Act 1996 (c.27)
232

      (3)
In paragraph 2(1), after “spouse” (in both places) insert “or civil partner”.
      (4)
For paragraph 2(2) substitute—
“(2)
The court may make a Part II order—
(a)
on granting a decree of divorce, a decree of nullity of
marriage or a decree of judicial separation or at any time
5
thereafter (whether, in the case of a decree of divorce or
nullity of marriage, before or after the decree is made
absolute), or
(b)
at any time when it has power to make a property
adjustment order under Part 2 of Schedule 5 to the Civil
10
Partnership Act 2004 with respect to the civil partnership.”
      (5)
Omit “or” at the end of paragraph 4(a) and insert—
“(aa)
in the case of civil partners, a civil partnership home; or”.
      (6)
In paragraph 5(a), after “spouses” insert “, civil partners”.
      (7)
In paragraph 6—
15
(a)
after “spouse” (in the first place) insert “, a civil partner”, and
(b)
after “spouse” (in the second place) insert “, civil partner”.
      (8)
In paragraph 7(1) and (2), after “spouse” (in each place) insert “, civil
partner”.
      (9)
For paragraph 7(3) to (4) substitute—
20
“(3)
If the spouse, civil partner or cohabitant so entitled is a successor
within the meaning of Part 4 of the Housing Act 1985—
(a)
his former spouse (or, in the case of judicial separation, his
spouse),
(b)
his former civil partner (or, if a separation order is in force,
25
his civil partner), or
(c)
his former cohabitant,

is to be deemed also to be a successor within the meaning of that
Part.
(3A)
If the spouse, civil partner or cohabitant so entitled is a successor
30
within the meaning of section 132 of the Housing Act 1996—
(a)
his former spouse (or, in the case of judicial separation, his
spouse),
(b)
his former civil partner (or, if a separation order is in force,
his civil partner), or
35
(c)
his former cohabitant,

is to be deemed also to be a successor within the meaning of that
section.
(4)
If the spouse, civil partner or cohabitant so entitled is for the
purposes of section 17 of the Housing Act 1988 a successor in
40
relation to the tenancy or occupancy—
(a)
his former spouse (or, in the case of judicial separation, his
spouse),
(b)
his former civil partner (or, if a separation order is in force,
his civil partner), or
45
(c)
his former cohabitant,

is to be deemed to be a successor in relation to the tenancy or
occupancy for the purposes of that section.”