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Civil Partnership Bill [HL]


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

23

 

(4)   

“Hardship” includes the loss of the chance of acquiring any benefit which the

respondent might acquire if the civil partnership were not dissolved.

48      

Proceedings before order made final: protection for respondent in separation

cases

(1)   

The court may, on an application made by the respondent, rescind a

5

conditional dissolution order if—

(a)   

it made the order on the basis of a finding that the applicant was

entitled to rely on the fact of 2 years’ separation coupled with the

respondent’s consent to a dissolution order being made,

(b)   

it made no such finding as to any other fact mentioned in section 44(5),

10

and

(c)   

it is satisfied that the applicant misled the respondent (whether

intentionally or unintentionally) about any matter which the

respondent took into account in deciding to give his consent.

(2)   

Subsections (3) to (5) apply if—

15

(a)   

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

applicant alleged—

(i)   

2 years’ separation coupled with the respondent’s consent to a

dissolution order being made, or

(ii)   

5 years’ separation,

20

   

has applied to the court for consideration under subsection (3) of his

financial position after the dissolution of the civil partnership, and

(b)   

the court—

(i)   

has made a conditional dissolution order on the basis of a

finding that the applicant was entitled to rely in support of his

25

application on the fact of 2 years’ or 5 years’ separation, and

(ii)   

has made no such finding as to any other fact mentioned in

section 44(5).

(3)   

The court hearing an application by the respondent under subsection (2) must

consider all the circumstances, including—

30

(a)   

the age, health, conduct, earning capacity, financial resources and

financial obligations of each of the parties, and

(b)   

the financial position of the respondent as, having regard to the

dissolution, it is likely to be after the death of the applicant should the

applicant die first.

35

(4)   

Subject to subsection (5), the court must not make the order final unless it is

satisfied that—

(a)   

the applicant should not be required to make any financial provision

for the respondent, or

(b)   

the financial provision made by the applicant for the respondent is—

40

(i)   

reasonable and fair, or

(ii)   

the best that can be made in the circumstances.

(5)   

The court may if it thinks fit make the order final if—

(a)   

it appears that there are circumstances making it desirable that the

order should be made final without delay, and

45

 

 

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

24

 

(b)   

it has obtained a satisfactory undertaking from the applicant that he

will make such financial provision for the respondent as it may

approve.

Nullity

49      

Grounds on which civil partnership is void

5

Where two people register as civil partners of each other in England and Wales,

the civil partnership is void if—

(a)   

at the time when they do so, they are not eligible to register as civil

partners of each other under Chapter 1 (see section 3),

(b)   

at the time when they do so they both know—

10

(i)   

that due notice of proposed civil partnership has not been

given,

(ii)   

that the civil partnership document has not been duly issued,

(iii)   

that the civil partnership document is void under section 17(3)

or 27(2) (registration after end of time allowed for registering),

15

(iv)   

that the place of registration is a place other than that specified

in the notices (or notice) of proposed civil partnership and the

civil partnership document, or

(v)   

that a civil partnership registrar is not present, or

(c)   

the civil partnership document is void under paragraph 6(5) of

20

Schedule 2 (civil partnership between child and another person

forbidden).

50      

Grounds on which civil partnership is voidable

(1)   

Where two people register as civil partners of each other in England and Wales,

the civil partnership is voidable if—

25

(a)   

either of them did not validly consent to its formation (whether as a

result of duress, mistake, unsoundness of mind or otherwise);

(b)   

at the time of its formation either of them, though capable of giving a

valid consent, was suffering (whether continuously or intermittently)

from mental disorder of such a kind or to such an extent as to be

30

unfitted for civil partnership;

(c)   

at the time of its formation, the respondent was pregnant by some

person other than the applicant;

(d)   

an interim gender recognition certificate under the Gender Recognition

Act 2004 (c. 7) has, after the time of its formation, been issued to either

35

civil partner;

(e)   

the respondent is a person whose gender at the time of its formation

had become the acquired gender under the 2004 Act.

(2)   

In this section and section 51 “mental disorder” has the same meaning as in the

Mental Health Act 1983 (c. 20).

40

51      

Bars to relief where civil partnership is voidable

(1)   

The court must not make a nullity order on the ground that a civil partnership

is voidable if the respondent satisfies the court—

 

 

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

25

 

(a)   

that the applicant, with knowledge that it was open to him to obtain a

nullity order, conducted himself in relation to the respondent in such a

way as to lead the respondent reasonably to believe that he would not

seek to do so, and

(b)   

that it would be unjust to the respondent to make the order.

5

(2)   

Without prejudice to subsection (1), the court must not make a nullity order by

virtue of section 50(1)(a), (b), (c) or (e) unless—

(a)   

it is satisfied that proceedings were instituted within 3 years from the

date of the formation of the civil partnership, or

(b)   

leave for the institution of proceedings after the end of that 3 year

10

period has been granted under subsection (3).

(3)   

A judge of the court may, on an application made to him, grant leave for the

institution of proceedings if he—

(a)   

is satisfied that the applicant has at some time during the 3 year period

suffered from mental disorder, and

15

(b)   

considers that in all the circumstances of the case it would be just to

grant leave for the institution of proceedings.

(4)   

An application for leave under subsection (3) may be made after the end of the

3 year period.

(5)   

Without prejudice to subsection (1), the court must not make a nullity order by

20

virtue of section 50(1)(d) unless it is satisfied that proceedings were instituted

within the period of 6 months from the date of issue of the interim gender

recognition certificate.

(6)   

Without prejudice to subsections (1) and (2), the court must not make a nullity

order by virtue of section 50(1)(c) or (e) unless it is satisfied that the applicant

25

was at the time of the formation of the civil partnership ignorant of the facts

alleged.

52      

Proof of certain matters not necessary to validity of civil partnership

(1)   

Where two people have registered as civil partners of each other in England

and Wales, it is not necessary in support of the civil partnership to give any

30

proof—

(a)   

that any person whose consent to the civil partnership was required by

section 4 (parental etc. consent) had given his consent, or

(b)   

that the civil partnership registrar was designated as such by the

registration authority in whose area the registration took place;

35

   

and no evidence is to be given to prove the contrary in any proceedings

touching the validity of the civil partnership.

(2)   

Subsection (1)(a) is subject to section 49(c) (civil partnership void if forbidden).

53      

Power to validate civil partnership

(1)   

Where two people have registered as civil partners of each other in England

40

and Wales, the Lord Chancellor may by order validate the civil partnership if

it appears to him that it is or may be void under section 49(b).

(2)   

An order under subsection (1) may include provisions for relieving a person

from any liability under section 31(2), 32(2) or 33(5) or (7).

 

 

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

26

 

(3)   

The draft of an order under subsection (1) must be advertised, in such manner

as the Lord Chancellor thinks fit, not less than one month before the order is

made.

(4)   

The Lord Chancellor must—

(a)   

consider all objections to the order sent to him in writing during that

5

month, and

(b)   

if it appears to him necessary, direct a local inquiry into the validity of

any such objections.

(5)   

An order under subsection (1) is subject to special parliamentary procedure.

54      

Validity of civil partnerships registered outside England and Wales

10

(1)   

Where two people register as civil partners of each other in Scotland, the civil

partnership is—

(a)   

void, if it would be void in Scotland under section 123, and

(b)   

voidable, if the circumstances fall within section 50(1)(d).

(2)   

Where two people register as civil partners of each other in Northern Ireland,

15

the civil partnership is—

(a)   

void, if it would be void in Northern Ireland under section 173, and

(b)   

voidable, if the circumstances fall within any paragraph of section

50(1).

(3)   

Subsection (4) applies where two people register as civil partners of each other

20

under an Order in Council under—

(a)   

section 210 (registration at British consulates etc.), or

(b)   

section 211 (registration by armed forces personnel),

   

(“the relevant section”).

(4)   

The civil partnership is—

25

(a)   

void, if—

(i)   

the condition in subsection (2)(a) or (b) of the relevant section is

not met, or

(ii)   

a requirement prescribed for the purposes of this paragraph by

an Order in Council under the relevant section is not complied

30

with, and

(b)   

voidable, if—

(i)   

the appropriate part of the United Kingdom is England and

Wales or Northern Ireland and the circumstances fall within

any paragraph of section 50(1), or

35

(ii)   

the appropriate part of the United Kingdom is Scotland and the

circumstances fall within section 50(1)(d).

(5)   

The appropriate part of the United Kingdom is the part by reference to which

the condition in subsection (2)(b) of the relevant section is met.

(6)   

Subsections (7) and (8) apply where two people have registered an apparent or

40

alleged overseas relationship.

(7)   

The civil partnership is void if—

(a)   

the relationship is not an overseas relationship, or

 

 

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

27

 

(b)   

(even though the relationship is an overseas relationship) the parties

are not treated under Chapter 2 of Part 5 as having formed a civil

partnership.

(8)   

The civil partnership is voidable if—

(a)   

the overseas relationship is voidable under the relevant law,

5

(b)   

the circumstances fall within section 50(1)(d), or

(c)   

where either of the parties was domiciled in England and Wales or

Northern Ireland at the time when the overseas relationship was

registered, the circumstances fall within section 50(1)(a), (b), (c) or (e).

(9)   

Section 51 applies for the purposes of—

10

(a)   

subsections (1)(b), (2)(b) and (4)(b),

(b)   

subsection (8)(a), in so far as applicable in accordance with the relevant

law, and

(c)   

subsection (8)(b) and (c).

(10)   

In subsections (8)(a) and (9)(b) “the relevant law” means the law of the country

15

or territory where the overseas relationship was registered (including its rules

of private international law).

(11)   

For the purposes of subsections (8) and (9)(b) and (c), references in sections 50

and 51 to the formation of the civil partnership are to be read as references to

the registration of the overseas relationship.

20

Presumption of death orders

55      

Presumption of death orders

(1)   

The court may, on an application made by a civil partner, make a presumption

of death order if it is satisfied that reasonable grounds exist for supposing that

the other civil partner is dead.

25

(2)   

In any proceedings under this section the fact that—

(a)   

for a period of 7 years or more the other civil partner has been

continually absent from the applicant, and

(b)   

the applicant has no reason to believe that the other civil partner has

been living within that time,

30

   

is evidence that the other civil partner is dead until the contrary is proved.

Separation orders

56      

Separation orders

(1)   

An application for a separation order may be made to the court by either civil

partner on the ground that any such fact as is mentioned in section 44(5)(a), (b),

35

(c) or (d) exists.

(2)   

On an application for a separation 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,

40

   

but whether the civil partnership has broken down irretrievably is irrelevant.

 

 

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

28

 

(3)   

If the court is satisfied on the evidence of any such fact as is mentioned in

section 44(5)(a), (b), (c) or (d) it must, subject to section 63, make a separation

order.

(4)   

Section 45 (supplemental provisions as to facts raising presumption of

breakdown) applies for the purposes of an application for a separation order

5

alleging any such fact as it applies in relation to an application for a dissolution

order alleging that fact.

57      

Effect of separation order

If either civil partner dies intestate as respects all or any of his or her real or

personal property while—

10

(a)   

a separation order is in force, and

(b)   

the separation is continuing,

the property as respects which he or she died intestate devolves as if the other

civil partner had then been dead.

Declarations

15

58      

Declarations

(1)   

Any person may apply to the High Court or a county court for one or more of

the following declarations in relation to a civil partnership specified in the

application—

(a)   

a declaration that the civil partnership was at its inception a valid civil

20

partnership;

(b)   

a declaration that the civil partnership subsisted on a date specified in

the application;

(c)   

a declaration that the civil partnership did not subsist on a date so

specified;

25

(d)   

a declaration that the validity of a dissolution, annulment or legal

separation obtained outside England and Wales in respect of the civil

partnership is entitled to recognition in England and Wales;

(e)   

a declaration that the validity of a dissolution, annulment or legal

separation so obtained in respect of the civil partnership is not entitled

30

to recognition in England and Wales.

(2)   

Where an application under subsection (1) is made to a court by a person other

than a civil partner in the civil partnership to which the application relates, the

court must refuse to hear the application if it considers that the applicant does

not have a sufficient interest in the determination of that application.

35

59      

General provisions as to making and effect of declarations

(1)   

Where on an application for a declaration under section 58 the truth of the

proposition to be declared is proved to the satisfaction of the court, the court

must make the declaration unless to do so would be manifestly contrary to

public policy.

40

(2)   

Any declaration under section 58 binds Her Majesty and all other persons.

(3)   

The court, on the dismissal of an application for a declaration under section 58,

may not make any declaration for which an application has not been made.

 

 

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

29

 

(4)   

No declaration which may be applied for under section 58 may be made

otherwise than under section 58 by any court.

(5)   

No declaration may be made by any court, whether under section 58 or

otherwise, that a civil partnership was at its inception void.

(6)   

Nothing in this section affects the powers of any court to make a nullity order

5

in respect of a civil partnership.

60      

The Attorney General and proceedings for declarations

(1)   

On an application for a declaration under section 58 the court may at any stage

of the proceedings, of its own motion or on the application of any party to the

proceedings, direct that all necessary papers in the matter be sent to the

10

Attorney General.

(2)   

The Attorney General, whether or not he is sent papers in relation to an

application for a declaration under section 58, may—

(a)   

intervene in the proceedings on that application in such manner as he

thinks necessary or expedient, and

15

(b)   

argue before the court dealing with the application any question in

relation to the application which the court considers it necessary to

have fully argued.

(3)   

Where any costs are incurred by the Attorney General in connection with any

application for a declaration under section 58, the court may make such order

20

as it considers just as to the payment of those costs by parties to the

proceedings.

61      

Supplementary provisions as to declarations

(1)   

Any declaration made under section 58, and any application for such a

declaration, must be in the form prescribed by rules of court.

25

(2)   

Rules of court may make provision—

(a)   

as to the information required to be given by any applicant for a

declaration under section 58;

(b)   

requiring notice of an application under section 58 to be served on the

Attorney General and on persons who may be affected by any

30

declaration applied for.

(3)   

No proceedings under section 58 affect any final judgment or order already

pronounced or made by any court of competent jurisdiction.

(4)   

The court hearing an application under section 58 may direct that the whole or

any part of the proceedings must be heard in private.

35

(5)   

An application for a direction under subsection (4) must be heard in private

unless the court otherwise directs.

General provisions

62      

Relief for respondent in dissolution proceedings

(1)   

If in any proceedings for a dissolution order the respondent alleges and proves

40

any such fact as is mentioned in section 44(5)(a), (b), (c) or (d) the court may

 

 

 
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