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]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
55

(a)
an affidavit sworn or affirmed by the grantor declaring that the security
subjects are not or were not at the time of the granting of the security a
family home in relation to which a civil partner of the grantor has or
had occupancy rights, or
(b)
a renunciation of occupancy rights or consent to the granting of the
5
security which bears to have been properly made or given by the non-
entitled partner.
(4)
For the purposes of subsections (2) and (3), the time of granting a security, in
the case of a heritable security, is the date of delivery of the deed creating the
security.
10
109
Provisions where both civil partners have title
(1)
Subject to subsection (2), where, apart from the provisions of this Chapter, both
civil partners are entitled to occupy a family home—
(a)
the rights in that home of one civil partner are not prejudiced by reason
only of any dealing of the other civil partner, and
15
(b)
a third party is not by reason only of such a dealing entitled to occupy
that home or any part of it.
(2)
Sections 106(3) and 107 and the definition of “dealing” in section 106(2) apply
for the purposes of subsection (1) as they apply for the purposes of section
106(1) but subject to the following modifications—
20
(a)
any reference to the entitled partner and to the non-entitled partner is
to be construed as a reference to a civil partner who has entered into, or
as the case may be proposes to enter into, a dealing and to the other civil
partner respectively, and
(b)
in paragraph (b) of section 107(4) the reference to occupancy rights is to
25
be construed as a reference to any rights in the family home.
110
Rights of occupancy in relation to division and sale
Where a civil partner brings an action for the division and sale of a family home
owned in common with the other civil partner, the court, after having regard
to all the circumstances of the case including—
30
(a)
the matters specified in paragraphs (a) to (d) of section 103(3), and
(b)
whether the civil partner bringing the action offers or has offered to
make available to the other civil partner any suitable alternative
accommodation,
may refuse to grant decree in that action or may postpone the granting of
35
decree for such period as it considers reasonable in the circumstances or may
grant decree subject to such conditions as it may prescribe.
111
Adjudication
(1)
Where a family home as regards which there is an entitled partner and a non-
entitled partner is adjudged, the Court of Session, on the application of the
40
non-entitled partner made within 40 days after the date of the decree of
adjudication, may—
(a)
order the reduction of the decree, or
(b)
make such order as it thinks appropriate to protect the occupancy
rights of the non-entitled partner,
45

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
56

if satisfied that the purpose of the diligence was wholly or mainly to defeat the
occupancy rights of the non-entitled partner.
(2)
Section 106(2) applies in construing “entitled partner” and “non-entitled
partner” for the purposes of subsection (1).
Transfer of tenancy
5
112
Transfer of tenancy
(1)
The court may, on the application of a non-entitled partner, make an order
transferring the tenancy of a family home to that partner and providing,
subject to subsection (12), for the payment by the non-entitled partner to the
entitled partner of such compensation as seems to it to be just and reasonable
10
in all the circumstances of the case.
(2)
In an action—
(a)
for dissolution of a civil partnership, the Court of Session or the sheriff,
(b)
for declarator of nullity of a civil partnership, the Court of Session,

may, on granting decree or within such period as the court may specify on
15
granting decree, make an order granting an application under subsection (1).
(3)
In determining whether to grant an application under subsection (1), the court
is to have regard to all the circumstances of the case including the matters
specified in paragraphs (a) to (e) of section 103(3) and the suitability of the
applicant to become the tenant and the applicant’s capacity to perform the
20
obligations under the lease of the family home.
(4)
The non-entitled partner is to serve a copy of an application under subsection
(1) on the landlord and, before making an order under subsection (1), the court
is to give the landlord an opportunity of being heard by it.
(5)
On the making of an order granting an application under subsection (1), the
25
tenancy vests in the non-entitled partner without intimation to the landlord,
subject to all the liabilities under the lease (other than liability for any arrears
of rent for the period before the making of the order).
(6)
The arrears mentioned in subsection (5) are to remain the liability of the
original entitled partner.
30
(7)
The clerk of court is to notify the landlord of the making of an order granting
an application under subsection (1).
(8)
It is not competent for a non-entitled partner to apply for an order under
subsection (1) where the family home—
(a)
is let to the entitled partner by the entitled partner’s employer as an
35
incident of employment, and the lease is subject to a requirement that
the entitled partner must reside there,
(b)
is or is part of an agricultural holding,
(c)
is on, or pertains to—
(i)
a croft,
40
(ii)
the subject of a cottar, or
(iii)
the holding of a landholder or of a statutory small tenant,
(d)
is let on a long lease, or
(e)
is part of the tenancy land of a tenant-at-will.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 4 — Interdicts
57

(9)
In subsection (8)—

“agricultural holding” has the same meaning as in section 1 of the
Agricultural Holdings (Scotland) Act 1991 (c. 55),

“cottar” has the same meaning as in section 12(5) of the Crofters (Scotland)
Act 1993 (c. 44),
5

“croft” has the same meaning as in that Act of 1993,

“holding”, in relation to a landholder and a statutory small tenant,
“landholder” and “statutory small tenant” have the same meanings
respectively as in sections 2(1), 2(2) and 32(1) of the Small Landholders
(Scotland) Act 1911 (c. 49),
10

“long lease” has the same meaning as in section 28(1) of the Land
Registration (Scotland) Act 1979 (c. 33), and

“tenant-at-will” has the same meaning as in section 20(8) of that Act of
1979.
(10)
Where both civil partners are joint or common tenants of a family home, the
15
court may, on the application of one of the civil partners, make an order vesting
the tenancy in that civil partner solely and providing, subject to subsection (12),
for the payment by the applicant to the other partner of such compensation as
seems just and reasonable in the circumstances of the case.
(11)
Subsections (2) to (9) apply for the purposes of an order under subsection (10)
20
as they apply for the purposes of an order under subsection (1) but subject to
the following modifications—
(a)
in subsection (3), for “tenant” there is substituted “sole tenant”;
(b)
in subsection (4), for “non-entitled” there is substituted “applicant”;
(c)
in subsection (5), for “non-entitled” there is substituted “applicant”,
25
(d)
in subsection (6), for “liability of the original entitled partner” there is
substituted “joint and several liability of both partners”;
(e)
in subsection (8)—
(i)
for “a non-entitled” there is substituted “an applicant”,
(ii)
for paragraph (a) there is substituted—
30
“(a)
is let to both partners by their employer as an
incident of employment, and the lease is subject
to a requirement that both partners must reside
there;”, and
(iii)
paragraphs (c) and (e) are omitted.
35
(12)
Where the family home is a Scottish secure tenancy within the meaning of the
Housing (Scotland) Act 2001 (asp 10), no account is to be taken, in assessing the
amount of any compensation to be awarded under subsection (1) or (10), of the
loss, by virtue of the transfer of the tenancy of the home, of a right to purchase
the home under Part 3 of the Housing (Scotland) Act 1987 (c. 26).
40
Chapter 4
Interdicts
113
Civil partners: competency of interdict
(1)
It shall not be incompetent for the Court of Session or the sheriff to entertain an
application by one civil partner in a civil partnership for a relevant interdict by
45
reason only that the civil partners are living together in civil partnership.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 4 — Interdicts
58

(2)
In subsection (1) and in section 114, “relevant interdict” means an interdict,
including an interim interdict, which—
(a)
restrains or prohibits any conduct of one civil partner towards the other
civil partner or a child of the family, or
(b)
prohibits a civil partner from entering or remaining in a family home or
5
in a specified area in the vicinity of a family home.
114
Attachment of powers of arrest to relevant interdicts
(1)
Subject to subsection (2), the court is, on the application of an applicant civil
partner, to attach a power of arrest—
(a)
to any relevant interdict which is ancillary to an exclusion order
10
(including an interim order under section 104(6));
(b)
to any other relevant interdict where the non-applicant civil partner has
had the opportunity of being heard by or represented before the court,
unless it appears to the court that in all the circumstances of the case
such a power is unnecessary.
15
(2)
The court may attach a power of arrest to an interdict by virtue of subsection
(1) only if satisfied that attaching the power would not result in the non-
applicant civil partner being subject, in relation to the interdict, to a power of
arrest under both this Chapter and the Protection from Abuse (Scotland) Act
2001 (asp 14).
20
(3)
A power of arrest attached to an interdict by virtue of subsection (1) does not
have effect until such interdict together with the attached power of arrest is
served on the non-applicant civil partner; and such a power of arrest, unless
previously recalled, ceases to have effect upon the dissolution of the civil
partnership.
25
(4)
If, by virtue of subsection (1), a power of arrest is attached to an interdict, a
constable may arrest without warrant the non-applicant civil partner if the
constable has reasonable cause for suspecting that civil partner of being in
breach of the interdict.
(5)
If, by virtue of subsection (1), a power of arrest is attached to an interdict, the
30
applicant civil partner is, as soon as possible after service of the interdict, to
ensure that there is delivered—
(a)
to the chief constable of the police area in which the family home is
situated, and
(b)
if the applicant civil partner resides in another police area, to the chief
35
constable of that other police area,

a copy of the application for the interdict and of the interlocutor granting the
interdict together with a certificate of service of the interdict and, where the
application to attach the power of arrest to the interdict was made after the
interdict was granted, a copy of that application and of the interlocutor
40
granting it and a certificate of service of the interdict together with the attached
power of arrest.
(6)
Where any relevant interdict to which, by virtue of subsection (1), there is
attached a power of arrest, is varied or recalled, the civil partner who applied
for the variation or recall is to ensure that there is delivered—
45
(a)
to the chief constable of the police area in which the family home is
situated, and

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 4 — Interdicts
59

(b)
if the applicant civil partner resides in another police area, to the chief
constable of that other police area,

a copy of the application for variation or recall and of the interlocutor granting
the variation or recall.
(7)
In this section and in sections 115 and 116—
5

“applicant civil partner” means the civil partner who has applied for the
interdict, and

“non-applicant civil partner” is to be construed accordingly.
115
Police powers after arrest
(1)
Where a person has been arrested under section 114(4), the officer in charge of
10
a police station may—
(a)
if satisfied that there is no likelihood of violence to the applicant civil
partner or any child of the family, liberate that person unconditionally,
or
(b)
refuse to liberate that person.
15
(2)
For such refusal and the detention of that person until appearance in court by
virtue of section 116(2) or of any provision of the Criminal Procedure
(Scotland) Act 1975 (c. 21) the officer is not to be subjected to any claim
whatsoever.
(3)
Where a person arrested under section 114(4) is liberated under subsection (1),
20
the facts and circumstances which gave rise to the arrest are to be reported
forthwith to the procurator fiscal who, if he decides to take no criminal
proceedings in respect of those facts and circumstances, is at the earliest
opportunity to take all reasonable steps to intimate his decision to the persons
mentioned in paragraphs (a) and (b) of section 116(5).
25
116
Procedure after arrest
(1)
The provisions of this section apply only where—
(a)
the non-applicant civil partner has not been liberated under section
115(1), and
(b)
the procurator fiscal decides that no criminal proceedings are to be
30
taken in respect of the facts and circumstances which gave rise to the
arrest.
(2)
The non-applicant civil partner who has been arrested under section 114(4) is
wherever practicable to be brought before the sheriff sitting as a court of
summary criminal jurisdiction for the district in which that civil partner was
35
arrested not later than in the course of the first day after the arrest, such day
not being a Saturday, a Sunday or a court holiday prescribed for that court
under section 8 of the Criminal Procedure (Scotland) Act 1995 (c. 46).
(3)
Nothing in subsection (2) prevents the non-applicant civil partner being
brought before the sheriff on a Saturday, a Sunday or such a court holiday
40
when the sheriff is, in pursuance of that section of that Act, sitting for the
disposal of criminal business.
(4)
Subsections (1) to (3) of section 15 of that Act (intimation to a named person)
apply to a non-applicant civil partner who has been arrested under section
114(4) as they apply to a person who has been arrested in respect of any
45
offence.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 5 — Dissolution, separation and nullity
60

(5)
The procurator fiscal is at the earliest opportunity, and in any event prior to the
non-applicant civil partner being brought before the sheriff under subsection
(2), to take all reasonable steps to intimate—
(a)
to the applicant civil partner, and
(b)
to the solicitor who acted for that civil partner when the interdict was
5
granted or to any other solicitor who the procurator fiscal has reason to
believe acts for the time being for that civil partner,
that the criminal proceedings referred to in subsection (1) will not be taken.
(6)
On the non-applicant civil partner being brought before the sheriff under
subsection (2) (as read with subsection (3)), the following procedures apply—
10
(a)
the procurator fiscal is to present to the court a petition containing—
(i)
a statement of the particulars of the non-applicant civil partner,
(ii)
a statement of the facts and circumstances which gave rise to the
arrest, and
(iii)
a request that the non-applicant civil partner be detained for a
15
further period not exceeding 2 days,
(b)
if it appears to the sheriff that—
(i)
the statement referred to in paragraph (a)(ii) ostensibly
discloses a breach of interdict by the non-applicant civil partner,
(ii)
proceedings for breach of interdict will be taken, and
20
(iii)
there is a substantial risk of violence by the non-applicant civil
partner against the applicant civil partner or any child of the
family,

he may order the non-applicant civil partner to be detained for a further
period not exceeding 2 days, and
25
(c)
in any case to which paragraph (b) does not apply, the non-applicant
civil partner is, unless in custody in respect of any other matter, to be
released from custody.
(7)
In computing the period of 2 days referred to in paragraphs (a) and (b) of
subsection (6), no account is to be taken of a Saturday or Sunday or of any
30
holiday in the court in which the proceedings for breach of interdict will
require to be raised.
Chapter 5
Dissolution, separation and nullity
Dissolution and separation
35
117
Dissolution
(1)
An action for the dissolution of a civil partnership may be brought in the Court
of Session or in the sheriff court.
(2)
In such an action the court may grant decree, if, but only if, it is established
that—
40
(a)
the civil partnership has broken down irretrievably, or
(b)
an interim gender recognition certificate under the Gender Recognition
Act 2004 (c. 7) has, after the date of registration of the civil partnership,
been issued to either of the civil partners.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 5 — Dissolution, separation and nullity
61

(3)
The irretrievable breakdown of a civil partnership is taken to be established
if—
(a)
since the date of registration of the civil partnership the defender has at
any time behaved (whether or not as a result of mental abnormality and
whether such behaviour has been active or passive) in such a way that
5
the pursuer cannot reasonably be expected to cohabit with the
defender,
(b)
the defender has wilfully and without reasonable cause deserted the
pursuer and during a continuous period of two years immediately
succeeding the defender’s desertion—
10
(i)
there has been no cohabitation between the parties, and
(ii)
the pursuer has not refused a genuine and reasonable offer by
the defender to adhere,
(c)
there has been no cohabitation between the civil partners at any time
during a continuous period of two years after the date of registration of
15
the civil partnership and immediately preceding the bringing of the
action and the defender consents to the granting of decree of
dissolution of the civil partnership, or
(d)
there has been no cohabitation between the civil partners at any time
during a continuous period of 5 years after that date and immediately
20
preceding the bringing of the action.
(4)
Provision is to be made by act of sederunt—
(a)
for the purpose of ensuring that, in an action to which paragraph (c) of
subsection (3) relates, the defender has been given such information as
enables that civil partner to understand—
25
(i)
the consequences of consenting to the granting of decree, and
(ii)
the steps which must be taken to indicate such consent, and
(b)
as to the manner in which the defender in such an action is to indicate
such consent, and any withdrawal of such consent,
and where the defender has indicated (and not withdrawn) such consent in the
30
prescribed manner, that indication is sufficient evidence of such consent.
(5)
Provision is to be made by act of sederunt for the purpose of ensuring that,
where in an action for the dissolution of a civil partnership the defender is
suffering from mental illness, the court appoints a curator ad litem to the
defender.
35
(6)
In an action to which paragraph (d) of subsection (3) relates, even though
irretrievable breakdown of the civil partnership is established the court is not
bound to grant decree if in its opinion to do so would result in grave financial
hardship to the defender.
(7)
For the purposes of subsection (6), hardship includes the loss of the chance of
40
acquiring any benefit.
(8)
In an action for dissolution of a civil partnership the standard of proof required
to establish the ground of action is on balance of probability.
118
Encouragement of reconciliation
(1)
At any time before granting decree in an action by virtue of paragraph (a) of
45
section 117(2) for dissolution of a civil partnership, if it appears to the court that
there is a reasonable prospect of a reconciliation between the civil partners it