Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
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Other Bills before Parliament

Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 2 — Amendments of the Family Law (Scotland) Act 1985 (c. 37)
397

      (2)
in subsection (2), after paragraph (a) insert—
“(aa)
for dissolution of a civil partnership, separation of civil
partners or declarator of nullity of a civil partnership,”.
      (3)
In subsection (9), after “wife” insert “or the partners in a civil partnership”.
12
In section 6(1) (interim aliment)—
5
(a)
in paragraph (a), for “party” (in both places) substitute “person”,
(b)
after paragraph (b) insert—
“(c)
in an action for dissolution of a civil partnership,
separation of civil partners or declarator of nullity of
a civil partnership, by either partner against the other
10
partner,”.
13    (1)
Amend section 8 (orders for financial provision) as follows.
      (2)
In subsection (1)—
(a)
after “either party to the marriage” insert “and in an action for
dissolution of a civil partnership, either partner”, and
15
(b)
in each of paragraphs (a) to (c), for “marriage” substitute “action”.
      (3)
In subsection (5), after “marriage” insert “or the partners in a civil
partnership”.
14    (1)
Amend section 9 (principles to be applied in deciding what order if any to
make for financial provision) as follows.
20
      (2)
In subsection (1)—
(a)
in paragraph (a), at the end insert “or as the case may be the net value
of the partnership property should be so shared between the
partners in the civil partnership”,
(b)
in paragraph (b), for “party” (in each place) substitute “person”,
25
(c)
in paragraph (c), the existing words “after divorce, for a child of the
marriage under the age of 16 years” become sub-paragraph (i), after
that sub-paragraph insert—
“(ii)
after dissolution of the civil
partnership, for a child under that age
30
who has been accepted by both
partners as a child of the family,”,

and for “parties” substitute “persons”,
(d)
in paragraph (d), for “party” (in both places) substitute “person”, the
existing words “the date of the decree of divorce, to the loss of that
35
support on divorce” become sub-paragraph (i) and after that sub-
paragraph insert—
“(ii)
the date of the decree of dissolution of
the civil partnership, to the loss of that
support on dissolution,” and
40
(e)
in paragraph (e), for “party” substitute “person”, after first “divorce”
insert “or of the dissolution of the civil partnership,” and after second
“divorce” insert “or dissolution”.
      (3)
In subsection (2), in the definitions of “economic advantage” and
“contributions”, after “marriage” insert “or civil partnership”.
45
15    (1)
Amend section 10 (sharing of value of matrimonial property) as follows.
      (2)
In subsection (1)—
(a)
after “property” insert “or partnership property”, and

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 2 — Amendments of the Family Law (Scotland) Act 1985 (c. 37)
398

(b)
for “the parties to the marriage” substitute “persons”.
      (3)
In subsection (2)—
(a)
omit first “matrimonial”,
(b)
for “the parties or either of them” substitute “one or both of the
parties to the marriage or as the case may be of the partners”,
5
(c)
in paragraph (a), after “property” insert “or before the registration of
the partnership so far as they relate to the partnership property”, and
(d)
in paragraph (b), at the end insert “or partnership”.
      (4)
In subsection (3)—
(a)
in paragraph (a), for “parties” substitute “persons”, and
10
(b)
in paragraph (b), at the end insert “or for dissolution of the civil
partnership”.
      (5)
After subsection (4) insert—
“(4A)
Subject to subsection (5) below, in this section and in section 11 of this
Act “the partnership property” means all the property belonging to
15
the partners or either of them at the relevant date which was
acquired by them or by one of them (otherwise than by way of gift or
succession from a third party)—
(a)
before the registration of the partnership for use by them as a
family home or as furniture or plenishings for such a home,
20
or
(b)
during the partnership but before the relevant date.”
      (6)
In subsection (5)—
(a)
for “party” (in each place) substitute “person”, and
(b)
at the end insert “or partnership property”.
25
      (7)
In subsection (6)—
(a)
in paragraph (a), for “parties” substitute “persons” and at the end
insert “or partnership property”,
(b)
in paragraph (b), after “property” insert “or partnership property”,
for “parties” substitute “persons” and at the end insert “or
30
partnership”,
(c)
in paragraph (c), for “party” substitute “person”,
(d)
in paragraph (d), after “property” insert “or partnership property”
and for “matrimonial” substitute “family”, and
(e)
in paragraph (e), at the end insert “or the dissolution of the civil
35
partnership”.
      (8)
In subsection (7), for “parties” (in both places) substitute “persons”.
16    (1)
Amend section 11 (factors to be taken into account) as follows.
      (2)
In subsection (2)—
(a)
in paragraph (a), for “party” (in both places) substitute “person”, and
40
(b)
in paragraph (b), after “property” insert “or the partnership
property”.
      (3)
In subsection (3)(g), for “parties” substitute “persons”.
      (4)
In subsection (4)—
(a)
in each of paragraphs (a) and (c), for “party” substitute “person”,
45
(b)
in paragraph (b), for “party prior to divorce” substitute “person prior
to divorce or to the dissolution of the civil partnership”, and

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 2 — Amendments of the Family Law (Scotland) Act 1985 (c. 37)
399

(c)
in paragraph (d), for “parties” substitute “persons”.
      (5)
In subsection (5)—
(a)
in paragraph (a), for “party” substitute “person”,
(b)
in paragraph (b), at the end insert “or of the civil partnership”,
(c)
in paragraph (c), for “parties during the marriage” substitute
5
“persons during the marriage or civil partnership”, and
(d)
in paragraph (d), for “parties” substitute “persons”.
      (6)
In subsection (6), for “party” substitute “person”.
      (7)
In subsection (7), after “party” insert “to the marriage or as the case may be
of either partner”.
10
17    (1)
Amend section 12 (orders for payment of capital sum or transfer of property)
as follows.
      (2)
In subsection (1)—
(a)
in paragraph (a), at the end insert “or of dissolution of a civil
partnership”, and
15
(b)
in paragraph (b), for “decree of divorce” substitute “the decree”.
      (3)
In subsection (4), the existing words “either party to the marriage” become
paragraph (a) and after that paragraph insert the following paragraph—
“(b)
either partner,”.
18    (1)
Amend section 12A (orders for payment of capital sum: pensions lump
20
sums) as follows.
      (2)
In subsection (1)—
(a)
for “(“the liable party”)” substitute “or a partner in a civil partnership
(“the liable person”)”, and
(b)
in paragraph (a), after “property” insert “or the partnership
25
property” and for “party” substitute “person”.
      (3)
In subsection (2), for “(“the other party”)” substitute “or as the case may be
to the other partner (“the other person”)”.
      (4)
In each of subsections (3) to (8), for “party”, wherever it occurs, substitute
“person”.
30
19    (1)
Amend section 13 (orders for periodical allowance) as follows.
      (2)
In subsection (1)—
(a)
in paragraph (a), at the end insert “or of dissolution of a civil
partnership”,
(b)
in paragraph (b), for “decree of divorce” substitute “the decree”, and
35
(c)
in paragraph (c), for “decree of divorce” substitute “such decree”.
      (3)
In subsection (4), after “executor” insert “, or as the case may be either
partner or his executor,”.
      (4)
in subsection (7)—
(a)
in paragraph (a), for “party” substitute “person” and for “party’s”
40
substitute “person’s”, and
(b)
for paragraph (b) substitute—
“(b)
shall cease to have effect on the person receiving
payment—
(i)
marrying,
45
(ii)
entering into a civil partnership, or

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 2 — Amendments of the Family Law (Scotland) Act 1985 (c. 37)
400

(iii)
dying,

except in relation to any arrears due under it.”.
20    (1)
Amend section 14 (incidental orders) as follows.
      (2)
In subsection (1), at the end insert “or of dissolution of a civil partnership”.
      (3)
In subsection (2)—
5
(a)
in paragraph (c), after “marriage” insert “, or as the case may be the
partners,”,
(b)
in paragraph (d), the existing words “the matrimonial home” become
sub-paragraph (i), after that sub-paragraph insert “or” and the
following sub-paragraph—
10
“(ii)
the family home of the partnership,”,

and for “party to the marriage” substitute “person”,
(c)
in paragraph (e), for “parties” substitute “persons”, the existing
words “the matrimonial home” become sub-paragraph (i) and after
that sub-paragraph insert “or” and the following sub-paragraph—
15
“(ii)
the family home of the partnership,”,
(d)
in paragraph (g), for “party to the marriage” substitute “person”, and
(e)
in paragraph (h), at the end insert “or in any corresponding
settlement in respect of the civil partnership”.
      (4)
In subsection (3), for “decree of divorce” substitute “the decree”.
20
      (5)
After subsection (5) insert—
“(5A)
So long as an incidental order granting a partner in a civil
partnership the right to occupy a family home or the right to use
furnishings and plenishings therein remains in force then—
(a)
section 102(1), (2), (5)(a) and (9) of the Civil Partnership Act
25
2004, and
(b)
subject to section 15(3) of this Act, section 111 of that Act,

shall, except to the extent that the order otherwise provides, apply in
relation to the order in accordance with subsection (5B).
(5B)
Those provisions apply—
30
(a)
as if that partner were a non-entitled partner and the other
partner were an entitled partner within the meaning of
section 101 or 106(2) of that Act as the case may require,
(b)
as if the right to occupy a family home under that order were
a right specified in paragraph (a) or (b) of section 101(1) of
35
that Act, and
(c)
with any other necessary modification.”
      (6)
In subsection (7), at the end insert “or of dissolution of a civil partnership”.
21    (1)
Amend section 16 (agreements on financial provision) as follows.
      (2)
In subsection (1)—
40
(a)
after “marriage” insert “or the partners in a civil partnership”, and
(b)
after “divorce” insert “or on dissolution of the civil partnership”.
      (3)
In subsection (3)—
(a)
after “marriage” insert “or the partners in a civil partnership”,
(b)
after first “divorce” insert “or on dissolution of the civil partnership”,
45
(c)
in paragraphs (a) to (c), for “party” and “party’s” (in each place)
substitute, respectively, “person” and “person’s”, and

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 2 — Amendments of the Family Law (Scotland) Act 1985 (c. 37)
401

(d)
after second “divorce” insert “or of dissolution of the civil
partnership”.
22    (1)
Amend section 17 (financial provision on declarator of nullity of marriage)
as follows.
      (2)
In subsection (1)—
5
(a)
after first “marriage” insert “or of a civil partnership”,
(b)
after first “divorce” insert “or for dissolution of a civil partnership”,
(c)
after second “marriage” insert “and “action for dissolution of a civil
partnership” includes an action for declarator of nullity of a civil
partnership”, and
10
(d)
for “and “divorce”” substitute “, “divorce” and “dissolution of a civil
partnership””.
      (3)
In subsection (2)—
(a)
after first “marriage” insert “or of nullity of a civil partnership”, and
(b)
at the end insert “or civil partnership”.
15
23
In section 18(1) (orders relating to avoidance transactions), for “party” (in
both places) substitute “person”.
24
In section 21 (award of aliment or custody where divorce or separation
refused)—
(a)
for “or separation” substitute “, separation or dissolution of a civil
20
partnership”, and
(b)
for “parties” substitute “persons”.
25    (1)
In section 22 (expenses of action)—
(a)
for “party to a marriage” substitute “person”,
(b)
for paragraph (a) substitute—
25
“(a)
an action for aliment brought—
(i)
by either party to a marriage, or
(ii)
by either party in a civil partnership,

on his own behalf against the other party or partner,”,
(c)
in paragraph (b), after “separation” insert “(whether of the parties to
30
a marriage or the civil partners in a civil partnership)”,
(d)
after paragraph (b) insert—
“(bb)
an action for dissolution of a civil partnership,
declarator that a civil partnership exists or declarator
of nullity of a civil partnership,”, and
35
(e)
after fifth “marriage” insert “or the other partner in the civil
partnership”.
26
In section 24(1) (marriage not to affect property rights or legal capacity)—
(a)
after fifth “marriage” insert “or civil partnership”,
(b)
in paragraph (a), after “marriage” insert “, or as the case may be the
40
partners in the civil partnership,”, and
(c)
in paragraph (b), for “the parties to the marriage” substitute “those
parties or partners”.
27    (1)
Amend section 25 (presumption of equal shares in household goods) as
follows.
45
      (2)
In subsection (1)—
(a)
after first and third “marriage” insert “or civil partnership”, and

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 3 — Amendments of the Bankruptcy (Scotland) Act 1985 (c. 66)
402

(b)
after second “marriage” insert “or the partners in a civil partnership”,
      (3)
In subsection (2), the existing words “the parties were married” become
paragraph (a) and after that paragraph insert—
“(b)
the partners were in civil partnership,”, and
      (4)
In subsection (3)—
5
(a)
for “in any matrimonial” substitute “or civil partnership in any
family”, and
(b)
after second “marriage” insert “or the partners”.
28
In section 26 (presumption of equal shares in money and property derived
from housekeeping allowance)—
10
(a)
after first “marriage” insert “or civil partnership”,
(b)
after second “marriage” insert “or as the case may be of a partner in
a civil partnership”, and
(c)
after second and third “party” insert “or partner”.
29
In section 27(1) (interpretation)—
15
(a)
at the appropriate places insert—

““civil partnership”, in relation to an action for declarator of
nullity of a civil partnership, means purported civil
partnership,”,

““partner”, in relation to a civil partnership, includes a person
20
who has a partner in a civil partnership which has been
terminated and an ostensible partner in a civil partnership
which has been annulled,”, and
(b)
in the definition of “family”, at the end insert “and in relation to a
civil partnership means the members of the civil partnership
25
together with any child accepted by them both as a child of the
family.”
Part 3
Amendments of the Bankruptcy (Scotland) Act 1985 (c. 66)
30
In section 16(4) (presentation of petition for recall of sequestration), for
30
“section 41(1)(b)” substitute “sections 41(1)(b) and 41A(1)(b)”.
31
In section 17(8)(b) (duties of clerk of court in relation to recall of
sequestration), after “41(1)(b)(ii)” insert “or 41A(1)(b)(ii)”.
32
In section 20(4) (powers of interim trustee in relation to obtaining
information as to debtor’s assets)—
35
(a)
in paragraph (b), after “spouse” insert “or civil partner”, and
(b)
after “debtor, spouse” insert “, civil partner”.
33
In section 32(3)(b) (the expression “relevant obligations”), at the end insert
“or former civil partner”.
34
In section 34(7) (gratuitous alienations: saving for operation of Married
40
Women’s Policies of Assurance (Scotland) Act 1880), at the end insert
“including the operation of that section as applied by section 132 of the Civil
Partnership Act 2004”.
35    (1)
Amend section 40 (power of permanent trustee in relation to debtor’s family
home) as follows.
45

Civil Partnership Bill [HL]
Schedule 28 — Consequential amendments: Scotland
Part 3 — Amendments of the Bankruptcy (Scotland) Act 1985 (c. 66)
403

      (2)
In subsection (2), after paragraph (a) insert—
“(aa)
the needs and financial resources of the debtor’s civil partner
or former civil partner;”.
      (3)
In paragraph (d) of that subsection, for “paragraph (a) or (b)” substitute
“paragraphs (a) to (b)”.
5
      (4)
In subsection (4)—
(a)
in paragraph (a), after “spouse” (in each place) insert “or civil
partner”,
(b)
in paragraph (b), after “spouse” (in each place) insert “or civil
partner”, and
10
(c)
in paragraph (c)(i), after “spouse” (in each place) insert “or civil
partner”.
36
After section 41 insert—
“41A
Protection of rights of civil partner against arrangements intended to
defeat them
15
(1)
If a debtor’s sequestrated estate includes a family home of which the
debtor, immediately before the date of issue of the act and warrant of
the permanent trustee (or, if more than one such act and warrant is
issued in the sequestration, of the first such issue) was an entitled
partner and the other partner in the civil partnership is a non-entitled
20
partner—
(a)
the permanent trustee shall, where he—
(i)
is aware that the entitled partner is in civil
partnership with the non-entitled partner; and
(ii)
knows where the non-entitled partner is residing,
25

inform the non-entitled partner, within the period of 14 days
beginning with that date, of the fact that sequestration of the
entitled partner’s estate has been awarded, of the right of
petition which exists under section 16 of this Act and of the
effect of paragraph (b) below; and
30
(b)
the Court of Session, on the petition under section 16 of this
Act of the non-entitled partner presented either within the
period of 40 days beginning with that date or within the
period of 10 weeks beginning with the date of sequestration
may—
35
(i)
under section 17 of this Act recall the sequestration; or
(ii)
make such order as it thinks appropriate to protect
the occupancy rights of the non-entitled partner,

if it is satisfied that the purpose of the petition for
sequestration was wholly or mainly to defeat the occupancy
40
rights of the non-entitled partner.
(2)
In subsection (1) above—

“entitled partner” and “non-entitled partner” have the same
meanings as in section 101 of the Civil Partnership Act 2004;

“family home” has the meaning assigned by section 135 of the
45
2004 Act; and

“occupancy rights” means the rights conferred by subsection (1)
of that section 101.”