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 5 — Dissolution, separation and nullity
62

must continue, or further continue, the action for such period as it thinks
proper to enable attempts to be made to effect such a reconciliation.
(2)
If during any such continuation the civil partners cohabit with one another, no
account is to be taken of such cohabitation for the purposes of that action.
119
Effect of resumption of cohabitation
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(1)
In an action to which paragraph (b) of section 117(3) relates, the irretrievable
breakdown of a civil partnership is not to be taken to be established if, after the
expiry of the period mentioned in that paragraph—
(a)
the pursuer resumes cohabitation with the defender, and
(b)
cohabits with the defender at any time after the end of a period of 3
10
months commencing with the date of such resumption.
(2)
Subsection (1) is subject to section 118(2).
(3)
In considering whether any period mentioned in paragraph (b), (c) or (d) of
section 117(3) has been continuous, no account is to be taken of any period or
periods not exceeding 6 months in all during which the civil partners cohabited
15
with one another; but no such period or periods during which the civil partners
cohabited with one another is to count as part of the period of non-cohabitation
required by any of those paragraphs.
120
Separation
(1)
An action for the separation of the civil partners in a civil partnership may be
20
brought in the Court of Session or in the sheriff court.
(2)
In such an action the court may grant decree if satisfied that the circumstances
set out in any of paragraphs (a) to (d) of section 117(3) are established.
121
Dissolution following on decree of separation
(1)
The court may grant decree in an action for the dissolution of a civil
25
partnership even though decree of separation has previously been granted to
the pursuer on the same, or substantially the same, facts as those averred in
support of that action; and in any such action the court may treat an extract
decree of separation lodged in process as sufficient proof of the facts under
which that decree was granted.
30
(2)
Nothing in this section entitles a court to grant decree of dissolution of a civil
partnership without receiving evidence from the pursuer.
122
Registration of dissolution of civil partnership
(1)
The Registrar General is to maintain at the General Register Office a register of
decrees of dissolution of civil partnership (a register which shall be known as
35
the “Register of Dissolutions of Civil Partnership”).
(2)
The Registrar General is to cause to be made and kept at the General Register
Office an alphabetical index of the entries in that register.
(3)
The register is to be in such form as may be prescribed.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 5 — Dissolution, separation and nullity
63

(4)
On payment to him of such fee or fees as may be prescribed, the Registrar
General must, at any time when the General Register Office is open for that
purpose—
(a)
cause a search of the index to be made on behalf of any person or permit
any person to search the index himself,
5
(b)
issue to any person an extract of any entry in the register which that
person may require.
(5)
An extract of any entry in the register is to be sufficient evidence of the decree
of dissolution to which it relates.
(6)
The Registrar General may—
10
(a)
delete,
(b)
amend, or
(c)
substitute another entry for,

any entry in the register.
Nullity
15
123
Nullity
Where two people register in Scotland as civil partners of each other, the civil
partnership is void if, and only if—
(a)
they were not eligible to do so, or
(b)
though they were so eligible, either of them did not validly consent to
20
its formation.
124
Validity of civil partnerships registered outside Scotland
(1)
Where two people register as civil partners of each other in England and
Wales—
(a)
the civil partnership is void if it would be void in England and Wales
25
under section 49, and
(b)
the civil partnership is voidable if it would be voidable there under
section 50(1)(a), (b), (c) or (e).
(2)
Where two people register as civil partners of each other in Northern Ireland,
the civil partnership is—
30
(a)
void, if it would be void in Northern Ireland under section 173, and
(b)
voidable, if it would be voidable there under section 174(1)(a), (b), (c) or
(e).
(3)
Subsection (4) applies where two people register as civil partners of each other
under an Order in Council under—
35
(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—
(a)
void, if—
40
(i)
the condition in subsection (2)(a) or (b) of the relevant section is
not met, or

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 5 — Dissolution, separation and nullity
64

(ii)
a requirement prescribed for the purposes of this paragraph by
an Order in Council under the relevant section is not complied
with, and
(b)
voidable, if—
(i)
the appropriate part of the United Kingdom is England and
5
Wales and the circumstances fall within section 50(1)(a), (b), (c)
or (e), or
(ii)
the appropriate part of the United Kingdom is Northern Ireland
and the circumstances fall within section 174(1)(a), (b), (c) or (e).
(5)
The appropriate part of the United Kingdom is the part by reference to which
10
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
alleged overseas relationship.
(7)
The civil partnership is void if—
(a)
the relationship is not an overseas relationship, or
15
(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,
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(b)
where either of the parties was domiciled in England and Wales at the
time when the overseas relationship was registered, the circumstances
fall within section 50(1)(a), (b), (c) or (e), or
(c)
where either of the parties was domiciled in Northern Ireland at the
time when the overseas relationship was registered, the circumstances
25
fall within section 174(1)(a), (b), (c) or (e).
(9)
Section 51 or (as the case may be) section 175 applies for the purposes of—
(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
30
(c)
subsection (8)(b) and (c).
(10)
In subsections (8)(a) and (9)(b) “the relevant law” means the law of the country
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
35
and 51 or (as the case may be) sections 174 and 175 to the formation of the civil
partnership are to be read as references to the registration of the overseas
relationship.
Financial provision after overseas proceedings
125
Financial provision after overseas dissolution or annulment
40
Schedule 11 relates to applications for financial provision in Scotland after a
civil partnership has been dissolved or annulled in a country or territory
outside the British Islands.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 6 — Miscellaneous and interpretation
65

Chapter 6
Miscellaneous and interpretation
Miscellaneous
126
Regulations
(1)
In this Chapter and in Chapters 2 and 5, “prescribed” means prescribed by
5
regulations made by the Registrar General.
(2)
Regulations so made may make provision (including provision as to fees)
supplementing, in respect of the provision of services by or on behalf of the
Registrar General or by local registration authorities (as defined by section 5(3)
of the 1965 Act), the provisions of Chapter 2 of this Part.
10
(3)
Any power to make regulations under subsection (1) or (2) is exercisable by
statutory instrument; and no such regulations are to be made except with the
approval of the Scottish Ministers.
(4)
A statutory instrument containing regulations under subsection (1) or (2), or
regulations under section 106(3)(a)(i), is subject to annulment in pursuance of
15
a resolution of the Scottish Parliament.
127
Attachment
Where an attachment has been executed of furniture and plenishings of which
the debtor’s civil partner has the possession or use by virtue of an order under
section 103(3) or (4), the sheriff, on the application of that civil partner made
20
within 40 days after the execution of the attachment, may—
(a)
declare the attachment null, or
(b)
make such order as he thinks appropriate to protect such possession or
use by that civil partner,
if satisfied that the purpose of the attachment was wholly or mainly to prevent
25
such possession or use.
128
Promise or agreement to enter into civil partnership
No promise or agreement to enter into civil partnership creates any rights or
obligations under the law of Scotland; and no action for breach of such a
promise or agreement may be brought in any court in Scotland, whatever the
30
law applicable to the promise or agreement.
129
Lord Advocate as party to action for nullity or dissolution of civil partnership
(1)
The Lord Advocate may enter appearance as a party in any action—
(a)
of declarator of nullity of a civil partnership, or
(b)
for dissolution of a civil partnership,
35
and he may lead such proof and maintain such pleas as he thinks fit.
(2)
The Court, whenever it considers it necessary for the proper disposal of any
such action, is to direct that the action be brought to the notice of the Lord
Advocate for him to determine whether to enter appearance.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 6 — Miscellaneous and interpretation
66

(3)
No expenses are claimable by or against the Lord Advocate in any such action
in which he enters appearance.
130
Civil partner of accused a competent witness
(1)
The civil partner of an accused may be called as a witness—
(a)
by the accused, or
5
(b)
without the consent of the accused, by a co-accused or by the
prosecutor.
(2)
But the civil partner is not a compellable witness for the co-accused or for the
prosecutor and is not compelled to disclose any communication made, while
the civil partnership subsists, between the civil partners.
10
(3)
The failure of a civil partner of an accused to give evidence is not to be
commented on by the defence or the prosecutor.
131
Succession: legal rights arising by virtue of civil partnership
(1)
Where a person dies survived by a civil partner then, unless the circumstance
is as mentioned in subsection (2), the civil partner has right to half of the
15
moveable net estate belonging to the deceased at the time of death.
(2)
That circumstance is that the person is also survived by issue, in which case the
civil partner has right to a third of that moveable net estate and those issue
have right to another third of it.
(3)
In this section—
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“issue” means issue however remote, and

“net estate” has the meaning given by section 36(1) (interpretation) of the
Succession (Scotland) Act 1964 (c. 41).
(4)
Every testamentary disposition executed after the commencement of this
section by which provision is made in favour of the civil partner of the testator
25
and which does not contain a declaration to the effect that the provision so
made is in full and final satisfaction of the right to any share in the testator’s
estate to which the civil partner is entitled by virtue of subsection (1) or (2), has
effect (unless the disposition contains an express provision to the contrary) as
if it contained such a declaration.
30
(5)
In section 36(1) of the Succession (Scotland) Act 1964, in the definition of “legal
rights”, for “and legitim” substitute “legitim and rights under section 131 of the
Civil Partnership Act 2004”.
132
Assurance policies
Section 2 of the Married Women’s Policies of Assurance (Scotland) Act 1880
35
(c. 26) (which provides that a policy of assurance may be effected in trust for a
person’s spouse, children or spouse and children) applies in relation to a policy
of assurance—
(a)
effected by a civil partner (in this section referred to as “A”) on A’s own
life, and
40
(b)
expressed upon the face of it to be for the benefit of A’s civil partner, or
of A’s children, or of A’s civil partner and children,

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 6 — Miscellaneous and interpretation
67

as it applies in relation to a policy of assurance effected as, and expressed upon
the face of it to be for such benefit as, is mentioned in that section.
133
Council Tax: liability of civil partners
After section 77 of the Local Government Finance Act 1992 (c. 14), insert—
“77A
Liability of civil partners
5
(1)
Where—
(a)
a person who is liable to pay council tax in respect of any
chargeable dwelling and any day is in civil partnership with
another person or living with another person in a relationship
which has the characteristics of the relationship between civil
10
partners; and
(b)
that other person is also a resident of the dwelling on that day
but would not, apart from this section, be so liable,
those persons shall be jointly and severally liable to pay the council tax
payable in respect of that dwelling and that day.
15
(2)
Subsection (1) above shall not apply as respects any day on which the
other person there mentioned falls to be disregarded for the purposes
of discount—
(a)
by virtue of paragraph 2 of Schedule 1 to this Act (the severely
mentally impaired); or
20
(b)
being a student, by virtue of paragraph 4 of that Schedule.”
134
General provisions as to fees
(1)
Subject to such exceptions as may be prescribed, a district registrar may refuse
to comply with any application voluntarily made to him under this Part until
the appropriate fee, if any, provided for by or under this Part is paid to him;
25
and any such fee, if not prepaid, is recoverable by the registrar to whom it is
payable.
(2)
Circumstances, of hardship or otherwise, may be prescribed in which fees
provided for by or under this Part may be remitted by the Registrar General.
Interpretation
30
135
Interpretation of this Part
In this Part, unless the context otherwise requires—
“the 1965 Act” means the Registration of Births, Deaths and Marriages
(Scotland) Act 1965 (c. 49);
“authorised registrar” has the meaning given by section 87;
35
“caravan” means a caravan which is mobile or affixed to land;
“child of the family” has the meaning given by section 101(7);
“civil partnership book” has the meaning given by section 89;
“civil partnership register” has the meaning given by section 95(2);
“civil partnership schedule” has the meaning given by section 94;
40
“the court” means the Court of Session or the sheriff;

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 6 — Miscellaneous and interpretation
68

“district” means a registration district as defined by section 5(1) of the
1965 Act;
“district registrar” has the meaning given by section 7(12) of the 1965 Act;
“entitled partner” and “non-entitled partner”, subject to sections 106(2)
and 111(2), have the meanings respectively assigned to them by section
5
101(1);
“exclusion order” has the meaning given by section 104(1);
“family” has the meaning given by section 101(7);
“family home” means any house, caravan, houseboat or other structure
which has been provided or has been made available by one or both of
10
the civil partners as, or has become, a family residence and includes any
garden or other ground or building attached to, and usually occupied
with, or otherwise required for the amenity or convenience of, the
house, caravan, houseboat or other structure but does not include a
residence provided or made available by one civil partner for that civil
15
partner to reside in, whether with any child of the family or not,
separately from the other civil partner;
“furniture and plenishings” means any article situated in a family home
of civil partners which—
(a)
is owned or hired by either civil partner or is being acquired by
20
either civil partner under a hire-purchase agreement or
conditional sale agreement, and
(b)
is reasonably necessary to enable the home to be used as a
family residence,
but does not include any vehicle, caravan or houseboat or such other
25
structure as is mentioned in the definition of “family home”;
“notice of proposed civil partnership” has the meaning given by section
88(1);
“occupancy rights” means the rights conferred by section 101(1);
“Registrar General” means the Registrar General of Births, Deaths and
30
Marriages for Scotland;
“registration office” means a registration office provided under section
8(1) of the 1965 Act;
“tenant” includes—
(a)
a sub-tenant,
35
(b)
a statutory tenant as defined in section 3 of the Rent (Scotland)
Act 1984 (c. 58), and
(c)
a statutory assured tenant as defined in section 16(1) of the
Housing (Scotland) Act 1988 (c. 43),
and “tenancy” is to be construed accordingly.
40
136
The expression “relative” in the 1965 Act
In section 56(1) of the 1965 Act (interpretation), in the definition of “relative”,
at the end insert “, a civil partner and anyone related to the civil partner of the
person as regards whom the expression is being construed”.