Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

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