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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

30

 

give to the respondent the relief to which he would have been entitled if he had

made an application seeking that relief.

(2)   

When applying subsection (1), treat—

(a)   

the respondent as the applicant, and

(b)   

the applicant as the respondent,

5

   

for the purposes of section 44(5).

63      

Restrictions on making of orders affecting children

(1)   

In any proceedings for a dissolution, nullity or separation order, the court must

consider—

(a)   

whether there are any children of the family to whom this section

10

applies, and

(b)   

if there are any such children, whether (in the light of the arrangements

which have been, or are proposed to be, made for their upbringing and

welfare) it should exercise any of its powers under the Children Act

1989 (c. 41) with respect to any of them.

15

(2)   

If, in the case of any child to whom this section applies, it appears to the court

that—

(a)   

the circumstances of the case require it, or are likely to require it, to

exercise any of its powers under the 1989 Act with respect to any such

child,

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(b)   

it is not in a position to exercise the power or (as the case may be) those

powers without giving further consideration to the case, and

(c)   

there are exceptional circumstances which make it desirable in the

interests of the child that the court should give a direction under this

section,

25

   

it may direct that the order is not to be made final, or (in the case of a separation

order) is not to be made, until the court orders otherwise.

(3)   

This section applies to—

(a)   

any child of the family who has not reached 16 at the date when the

court considers the case in accordance with the requirements of this

30

section, and

(b)   

any child of the family who has reached 16 at that date and in relation

to whom the court directs that this section shall apply.

64      

Parties to proceedings under this Chapter

(1)   

Rules of court may make provision with respect to—

35

(a)   

the joinder as parties to proceedings under sections 37 to 56 of persons

involved in allegations of improper conduct made in those

proceedings,

(b)   

the dismissal from such proceedings of any parties so joined, and

(c)   

the persons who are to be parties to proceedings on an application

40

under section 58.

(2)   

Rules of court made under this section may make different provision for

different cases.

(3)   

In every case in which the court considers, in the interest of a person not

already a party to the proceedings, that the person should be made a party, the

45

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 3 — Property and financial arrangements

31

 

court may if it thinks fit allow the person to intervene upon such terms, if any,

as the court thinks just.

Chapter 3

Property and financial arrangements

65      

Contribution by civil partner to property improvement

5

(1)   

This section applies if—

(a)   

a civil partner contributes in money or money’s worth to the

improvement of real or personal property in which or in the proceeds

of sale of which either or both of the civil partners has or have a

beneficial interest, and

10

(b)   

the contribution is of a substantial nature.

(2)   

The contributing partner is to be treated as having acquired by virtue of the

contribution a share or an enlarged share (as the case may be) in the beneficial

interest of such an extent—

(a)   

as may have been then agreed, or

15

(b)   

in default of such agreement, as may seem in all the circumstances just

to any court before which the question of the existence or extent of the

beneficial interest of either of the civil partners arises (whether in

proceedings between them or in any other proceedings).

(3)   

Subsection (2) is subject to any agreement (express or implied) between the

20

civil partners to the contrary.

66      

Disputes between civil partners about property

(1)   

In any question between the civil partners in a civil partnership as to title to or

possession of property, either civil partner may apply to—

(a)   

the High Court, or

25

(b)   

such county court as may be prescribed by rules of court.

(2)   

On such an application, the court may make such order with respect to the

property as it thinks fit (including an order for the sale of the property).

(3)   

Rules of court made for the purposes of this section may confer jurisdiction on

county courts whatever the situation or value of the property in dispute.

30

67      

Applications under section 66 where property not in possession etc.

(1)   

The right of a civil partner (“A”) to make an application under section 66

includes the right to make such an application where A claims that the other

civil partner (“B”) has had in his possession or under his control—

(a)   

money to which, or to a share of which, A was beneficially entitled, or

35

(b)   

property (other than money) to which, or to an interest in which, A was

beneficially entitled,

   

and that either the money or other property has ceased to be in B’s possession

or under B’s control or that A does not know whether it is still in B’s possession

or under B’s control.

40

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 3 — Property and financial arrangements

32

 

(2)   

For the purposes of subsection (1)(a) it does not matter whether A is

beneficially entitled to the money or share—

(a)   

because it represents the proceeds of property to which, or to an interest

in which, A was beneficially entitled, or

(b)   

for any other reason.

5

(3)   

Subsections (4) and (5) apply if, on such an application being made, the court

is satisfied that B—

(a)   

has had in his possession or under his control money or other property

as mentioned in subsection (1)(a) or (b), and

(b)   

has not made to A, in respect of that money or other property, such

10

payment or disposition as would have been appropriate in the

circumstances.

(4)   

The power of the court to make orders under section 66 includes power to

order B to pay to A—

(a)   

in a case falling within subsection (1)(a), such sum in respect of the

15

money to which the application relates, or A’s s share of it, as the court

considers appropriate, or

(b)   

in a case falling within subsection (1)(b), such sum in respect of the

value of the property to which the application relates, or A’s interest in

it, as the court considers appropriate.

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(5)   

If it appears to the court that there is any property which—

(a)   

represents the whole or part of the money or property, and

(b)   

is property in respect of which an order could (apart from this section)

have been made under section 66,

   

the court may (either instead of or as well as making an order in accordance

25

with subsection (4)) make any order which it could (apart from this section)

have made under section 66.

(6)   

Any power of the court which is exercisable on an application under section 66

is exercisable in relation to an application made under that section as extended

by this section.

30

68      

Applications under section 66 by former civil partners

(1)   

This section applies where a civil partnership has been dissolved or annulled.

(2)   

Subject to subsection (3), an application may be made under section 66

(including that section as extended by section 67) by either former civil partner

despite the dissolution or annulment (and references in those sections to a civil

35

partner are to be read accordingly).

(3)   

The application must be made within the period of 3 years beginning with the

date of the dissolution or annulment.

69      

Actions in tort between civil partners

(1)   

This section applies if an action in tort is brought by one civil partner against

40

the other during the subsistence of the civil partnership.

(2)   

The court may stay the proceedings if it appears—

(a)   

that no substantial benefit would accrue to either civil partner from the

continuation of the proceedings, or

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 3 — Property and financial arrangements

33

 

(b)   

that the question or questions in issue could more conveniently be

disposed of on an application under section 66.

(3)   

Without prejudice to subsection (2)(b), the court may in such an action—

(a)   

exercise any power which could be exercised on an application under

section 66, or

5

(b)   

give such directions as it thinks fit for the disposal under that section of

any question arising in the proceedings.

70      

Assurance policy by civil partner for benefit of other civil partner etc.

Section 11 of the Married Women’s Property Act 1882 (c. 75) (money payable

under policy of assurance not to form part of the estate of the insured) applies

10

in relation to a policy of assurance—

(a)   

effected by a civil partner on his own life, and

(b)   

expressed to be for the benefit of his civil partner, or of his children, or

of his civil partner and children, or any of them,

as it applies in relation to a policy of assurance effected by a husband and

15

expressed to be for the benefit of his wife, or of his children, or of his wife and

children, or of any of them.

71      

Wills, administration of estates and family provision

Schedule 4 amends enactments relating to wills, administration of estates and

family provision so that they apply in relation to civil partnerships as they

20

apply in relation to marriage.

72      

Financial relief for civil partners and children of family

(1)   

Schedule 5 makes provision for financial relief in connection with civil

partnerships that corresponds to provision made for financial relief in

connection with marriages by Part 2 of the Matrimonial Causes Act 1973 (c. 18).

25

(2)   

Any rule of law under which any provision of Part 2 of the 1973 Act is

interpreted as applying to dissolution of a marriage on the ground of

presumed death is to be treated as applying (with any necessary modifications)

in relation to the corresponding provision of Schedule 5.

(3)   

Schedule 6 makes provision for financial relief in connection with civil

30

partnerships that corresponds to provision made for financial relief in

connection with marriages by the Domestic Proceedings and Magistrates’

Courts Act 1978 (c. 22).

(4)   

Schedule 7 makes provision for financial relief in England and Wales after a

civil partnership has been dissolved or annulled, or civil partners have been

35

legally separated, in a country outside the British Islands.

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 4 — Civil partnership agreements

34

 

Chapter 4

Civil partnership agreements

73      

Civil partnership agreements unenforceable

(1)   

A civil partnership agreement does not under the law of England and Wales

have effect as a contract giving rise to legal rights.

5

(2)   

No action lies in England and Wales for breach of a civil partnership

agreement, whatever the law applicable to the agreement.

(3)   

In this section and section 74 “civil partnership agreement” means an

agreement between two people—

(a)   

to register as civil partners of each other—

10

(i)   

in England and Wales (under this Part),

(ii)   

in Scotland (under Part 3),

(iii)   

in Northern Ireland (under Part 4), or

(iv)   

outside the United Kingdom under an Order in Council made

under Chapter 1 of Part 5 (registration at British consulates etc.

15

or by armed forces personnel), or

(b)   

to enter into an overseas relationship.

(4)   

This section applies in relation to civil partnership agreements whether

entered into before or after this section comes into force, but does not affect any

action commenced before it comes into force.

20

74      

Property where civil partnership agreement is terminated

(1)   

This section applies if a civil partnership agreement is terminated.

(2)   

Section 65 (contributions by civil partner to property improvement) applies, in

relation to any property in which either or both of the parties to the agreement

had a beneficial interest while the agreement was in force, as it applies in

25

relation to property in which a civil partner has a beneficial interest.

(3)   

Sections 66 and 67 (disputes between civil partners about property) apply to

any dispute between or claim by one of the parties in relation to property in

which either or both had a beneficial interest while the agreement was in force,

as if the parties were civil partners of each other.

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(4)   

An application made under section 66 or 67 by virtue of subsection (3) must be

made within 3 years of the termination of the agreement.

(5)   

A party to a civil partnership agreement who makes a gift of property to the

other party on the condition (express or implied) that it is to be returned if the

agreement is terminated is not prevented from recovering the property merely

35

because of his having terminated the agreement.

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 5 — Children

35

 

Chapter 5

Children

75      

Parental responsibility, children of the family and relatives

(1)   

Amend the Children Act 1989 (c. 41) (“the 1989 Act”) as follows.

(2)   

In section 4A(1) (acquisition of parental responsibility by step-parent) after “is

5

married to” insert “, or a civil partner of,”.

(3)   

In section 105(1) (interpretation), for the definition of “child of the family” (in

relation to the parties to a marriage) substitute—

   

““child of the family”, in relation to parties to a marriage, or to two people

who are civil partners of each other, means—

10

(a)   

a child of both of them, and

(b)   

any other child, other than a child placed with them as foster

parents by a local authority or voluntary organisation, who has

been treated by both of them as a child of their family.”

(4)   

In the definition of “relative” in section 105(1), for “by affinity)” substitute “by

15

marriage or civil partnership)”.

76      

Guardianship

In section 6 of the 1989 Act (guardians: revocation and disclaimer) after

subsection (3A) insert—

“(3B)   

An appointment under section 5(3) or (4) (including one made in an

20

unrevoked will or codicil) is revoked if the person appointed is the civil

partner of the person who made the appointment and either—

(a)   

an order of a court of civil jurisdiction in England and Wales

dissolves or annuls the civil partnership, or

(b)   

the civil partnership is dissolved or annulled and the

25

dissolution or annulment is entitled to recognition in England

and Wales by virtue of Chapter 3 of Part 5 of the Civil

Partnership Act 2004,

   

unless a contrary intention appears by the appointment.”

77      

Entitlement to apply for residence or contact order

30

In section 10(5) of the 1989 Act (persons entitled to apply for residence or

contact order) after paragraph (a) insert—

“(aa)   

any civil partner in a civil partnership (whether or not

subsisting) in relation to whom the child is a child of the

family;”.

35

78      

Financial provision for children

(1)   

Amend Schedule 1 to the 1989 Act (financial provision for children) as follows.

(2)   

In paragraph 2(6) (meaning of “periodical payments order”) after paragraph

(d) insert—

“(e)   

Part 1 or 9 of Schedule 5 to the Civil Partnership Act 2004

40

(financial relief in the High Court or a county court etc.);

 

 

Civil Partnership Bill [HL]
Part 2 — Civil partnership: England and Wales
Chapter 5 — Children

36

 

(f)   

Schedule 6 to the 2004 Act (financial relief in the magistrates’

courts etc.),”.

(3)   

In paragraph 15(2) (person with whom a child lives or is to live) after “husband

or wife” insert “or civil partner”.

(4)   

For paragraph 16(2) (extended meaning of “parent”) substitute—

5

“(2)       

In this Schedule, except paragraphs 2 and 15, “parent” includes—

(a)   

any party to a marriage (whether or not subsisting) in relation

to whom the child concerned is a child of the family, and

(b)   

any civil partner in a civil partnership (whether or not

subsisting) in relation to whom the child concerned is a child

10

of the family;

           

and for this purpose any reference to either parent or both parents

shall be read as a reference to any parent of his and to all of his

parents.”

79      

Adoption

15

(1)   

Amend the Adoption and Children Act 2002 (c. 38) as follows.

(2)   

In section 21 (placement orders), in subsection (4)(c), after “child marries”

insert “, forms a civil partnership”.

(3)   

In section 47 (conditions for making adoption orders), after subsection (8)

insert—

20

“(8A)   

An adoption order may not be made in relation to a person who is or

has been a civil partner.”

(4)   

In section 51 (adoption by one person), in subsection (1), after “is not married”

insert “or a civil partner”.

(5)   

After section 51(3) insert—

25

“(3A)   

An adoption order may be made on the application of one person who

has attained the age of 21 years and is a civil partner if the court is

satisfied that—

(a)   

the person’s civil partner cannot be found,

(b)   

the civil partners have separated and are living apart, and the

30

separation is likely to be permanent, or

(c)   

the person’s civil partner is by reason of ill-health, whether

physical or mental, incapable of making an application for an

adoption order.”

(6)   

In section 64 (other provision to be made by regulations), in subsection (5) for

35

“or marriage” substitute “, marriage or civil partnership”.

(7)   

In section 74(1) (enactments for whose purposes section 67 does not apply), for

paragraph (a) substitute—

“(a)   

section 1 of and Schedule 1 to the Marriage Act 1949 or Schedule

1 to the Civil Partnership Act 2004 (prohibited degrees of

40

kindred and affinity),”.

(8)   

In section 79 (connections between the register and birth records), in subsection

(7)—

 

 

 
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