Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Schedule 11 — Financial provision in Scotland after overseas proceedings
Part 2 — Circumstances in which court may entertain application for financial provision
238

Schedule 11
Section 125

Financial provision in Scotland after overseas proceedings
Part 1
Introductory
1     (1)
This Schedule applies where—
5
(a)
a civil partnership has been dissolved or annulled in a country or
territory outside the British Islands by means of judicial or other
proceedings (here the “overseas proceedings”), and
(b)
the dissolution or annulment (here the “overseas determination”) is
entitled to be recognised as valid in Scotland.
10
      (2)
This Schedule applies even if the date of the overseas determination is earlier
than the date on which this Schedule comes into force.
Part 2
Circumstances in which court may entertain application for financial
provision
15
2     (1)
Subject to sub-paragraph (4), if the jurisdictional requirements and the
conditions set out in sub-paragraphs (2) and (3), respectively, are satisfied,
the court may entertain an application by one of the former civil partners or
former ostensible civil partners, (here “A”) for an order for financial
provision.
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      (2)
The jurisdictional requirements are—
(a)
that A is domiciled or habitually resident in Scotland when the
application is made,
(b)
that the other former civil partner, or former ostensible civil partner,
(here “B”)—
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(i)
is domiciled or habitually resident in Scotland when the
application is made,
(ii)
was domiciled or habitually resident in Scotland when A and
B last lived together in civil partnership, or
(iii)
when the application is made is an owner or tenant of, or has
30
a beneficial interest in, property in Scotland which has at
some time been a family home of A and B, and
(c)
where the court is the sheriff, that when the application is made
either—
(i)
A or B is habitually resident in the sheriffdom, or
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(ii)
property mentioned in sub-paragraph (2)(b)(iii) is wholly or
partially in the sheriffdom.
      (3)
The conditions are that—
(a)
B initiated the overseas proceedings,
(b)
the application is made within 5 years after the overseas
40
determination takes effect,
(c)
the civil partnership (or ostensible civil partnership) had a
substantial connection with Scotland,
(d)
A and B are alive when the application is made, and

Civil Partnership Bill [HL]
Schedule 11 — Financial provision in Scotland after overseas proceedings
Part 3 — Disposal of applications
239

(e)
(taking Part 3 of this Act to have been in force) a court in Scotland
would have had jurisdiction to entertain an action for dissolution or
annulment of the civil partnership, if such an action had been
brought immediately before the overseas determination took effect.
      (4)
Where the jurisdiction of the court to entertain proceedings under this
5
Schedule would fall to be determined by reference to the jurisdictional
requirements imposed by virtue of Part 1 of the Civil Jurisdiction and
Judgments Act 1982 (c. 27) (implementation of certain European
conventions) or by virtue of Council Regulation (EC) No. 44/2001 of 22nd
December 2000 on jurisdiction and the recognition and enforcement of
10
judgments in civil and commercial matters, then—
(a)
satisfaction of the jurisdictional requirements set out in sub-
paragraph (2) does not obviate the need to satisfy those so imposed,
and
(b)
satisfaction of those so imposed obviates the need to satisfy those set
15
out in sub-paragraph (2).
Part 3
Disposal of applications
3     (1)
Subject to sub-paragraphs (2) to (5), Scots law applies in relation to an
application made under paragraph 2 as it would apply were the application
20
made in an action in Scotland for, as the case may be, dissolution or
annulment of a civil partnership.
      (2)
In disposing of an application made under paragraph 2 the court must
exercise its powers so as to place A and B, in so far as it is reasonable and
practicable to do so, in the financial position in which they would have been
25
had that application been disposed of, in such an action in Scotland, on the
date when the overseas determination took effect.
      (3)
In determining what is reasonable and practicable for the purposes of sub-
paragraph (2), the court must have regard in particular to—
(a)
A and B’s respective resources, both present and foreseeable, at the
30
date the application is disposed of,
(b)
any order made by a foreign court in or in connection with the
overseas proceedings, being an order—
(i)
for the making of financial provision, in whatever form, by A
for B or by B for A, or
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(ii)
for the transfer of property from A to B or from B to A.
      (4)
Subject to sub-paragraph (5), the court may make an order for an interim
award of a periodical allowance where—
(a)
it appears from A’s averments that in the disposal of the application
an order for financial provision is likely to be made, and
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(b)
the court considers that such an interim award is necessary to avoid
hardship to A.
      (5)
Where but for paragraph 2(2)(b)(iii) the court would not have jurisdiction to
entertain the application, the court may make no order for financial
provision other than an order—
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(a)
relating to the former family home or its furniture and plenishings,
or

Civil Partnership Bill [HL]
Schedule 12 — Prohibited degrees of relationship: Northern Ireland
240

(b)
that B must pay A a capital sum not exceeding the value of B’s
interest in the former family home and its furniture and plenishings.
Part 4
The expression “order for financial provision”
4
In this Schedule, “order for financial provision” means any one or more of
5
the orders specified in section 8(1) of the Family Law (Scotland) Act 1985
(c. 37) or an order under section 111.
Schedule 12
Section 138(2)

Prohibited degrees of relationship: Northern Ireland
Absolute prohibitions
10
1     (1)
Two people are within prohibited degrees of relationship if one falls within
the list below in relation to the other.

Adoptive child

Adoptive parent

Child

15

Former adoptive child

Former adoptive parent

Grandparent

Grandchild

Parent

20

Parent’s sibling

Sibling

Sibling’s child

      (2)
In the list “sibling” means a brother, sister, half-brother or half-sister.
Qualified prohibitions
25
2     (1)
Two people are within prohibited degrees of relationship if one of them falls
within the list below in relation to the other, unless—
(a)
both of them have reached 21 at the time when they register as civil
partners of each other, and
(b)
the younger has not at any time before reaching 18 been a child of the
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family in relation to the other.

Civil Partnership Bill [HL]
Schedule 12 — Prohibited degrees of relationship: Northern Ireland
241

Child of former civil partner

Child of former spouse

Former civil partner of grandparent

Former civil partner of parent

Former spouse of grandparent

5

Former spouse of parent

Grandchild of former civil partner

Grandchild of former spouse

      (2)
“Child of the family”, in relation to another person, means a person who—
(a)
has lived in the same household as that other person, and
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(b)
has been treated by that other person as a child of his family.
3
Two people are within prohibited degrees of relationship if one falls within
column 1 of the table below in relation to the other, unless—
(a)
both of them have reached 21 at the time when they register as civil
partners of each other, and
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(b)
the persons who fall within column 2 are dead.

Relationship
Relevant deaths

Former civil partner of child
The child

The child’s other parent

Former spouse of child
The child

20

The child’s other parent

Parent of former civil partner
The former civil partner

The former civil partner’s other

parent

Parent of former spouse
The former spouse

25

The former spouse’s other

parent