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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,

20

(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—

20

   

“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”.

 

 

 
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