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'(1) The petitioner or respondent for annulment or dissolution of a marriage under section 12(g) of the Matrimonial Causes Act 1973 may apply to the court to order that—
(a) all rights and benefits of any private pension scheme, or
(b) all property rights, or
(c) both
should continue to subsist following the annulment or dissolution of marriage provided that the petitioner and respondent can satisfy the court that both parties to the existing marriage intend to live together as partners.
(2) In this section—
(a) a "private pension scheme" means—
(i) an occupational pension scheme,
(ii) a personal pension scheme, or
(iii) a stakeholder pension scheme,
of which either the petitioner or respondent was a member before the application for annulment or dissolution of the marriage.
(b) "property rights" means the right in any property, whether real or personal, owned jointly by the parties.
(c) "court" means the court hearing the petition for divorce.
(3) For the purposes of this Act, a couple "live together as partners" if subsection (4) or (5) applies.
(4) This subsection applies if—
(a) none of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;
(b) the couple live together;
(c) the couple retain their responsibilities in relation to any existing dependants; and
(d) the couple maintain existing financial support for one another.
(5) This subsection applies if the couple have—
(a) registered as a civil partnership, or
(b) given notice of a proposed civil partnership to a registration authority,
under the Civil Partnerships Act 2004.
(6) Any order made by the court under subsection (1) shall be void if the circumstances set out in subsection (3) cease to apply.
(7) An appeal against any order made by the court under subsection (1) shall be heard by the court.
(8) An appeal under subsection (7) must show that the circumstances set out in subsection (3) cease to apply.
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(9) Any person may show cause why an order made by the court under subsection (1) should not be made by reason of material facts not having been brought before the court; and in such a case the court may—
(a) notwithstanding anything in subsections (6) or (7) above, make the order;
(b) rescind the order;
(c) require further inquiry; or
(d) otherwise deal with the case as it thinks fit.—[Hugh Bayley.]
Brought up, and read the First time.
3 pm
Hugh Bayley (City of York) (Lab): I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss amendment No. 2, in page 16, line 14, schedule 2, at end insert—
'"( ) An annulment or dissolution of marriage under section 12(g) shall be subject to the provisions of section [Application following issue of an interim gender recognition certificate] of the Gender Recognition Act 2004.".'.
Hugh Bayley: Hon. Members who attended Second Reading or served on the Standing Committee will know that I have been trying to protect the pension rights of transsexuals and of their wives and husbands.
When a married person is diagnosed with gender dysphoria and commences gender reassignment treatment, an enormous emotional strain is placed on the marriage, and in most cases the marriage comes to an end. In a few cases, however, the married couple wish to stay together. I have two constituents who are in that position. They have been married for many years and have grown-up children. The wife, as so many women did in the past, stayed at home to bring up the children and has no pension provision in her own right. In that sense, she is dependent on her husband, and will be so in retirement if she survives for longer than him.
In Committee, it was established that the decision by one partner in a marriage to live in the opposite gender, or the decision to go forward with gender reassignment treatment or to apply for an interim gender recognition certificate, would not affect in any way the state pension rights or the private pension entitlement of either party to the marriage. However, the situation changes when a married person applies for a full gender recognition certificate, because the Bill requires a married couple to divorce in order to get legal recognition in a new gender for a party to the marriage. Divorce law does not cope well with that, because it assumes that a couple who go to court seeking to divorce will separate. In all other circumstances, of course, divorce or the annulment of a marriage does lead to separation or follows separation, and the divorce court has the job of dividing and apportioning property and responsibilities between the two parties. In a case such as that of my constituents, where the couple are required to divorce so that one of them may obtain a full gender recognition certificate but they do not intend to separate, provision needs to be made for property, including pension rights, to be shared.
Amendment No. 2 would add a new provision to schedule 2 by amending the Matrimonial Causes Act 1973 to give the divorce court further powers to deal
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with the new reason for divorce that is introduced by the Bill—divorce on the grounds that a party to a marriage is applying for a full gender recognition certificate. New clause 2 sets out what those new powers would be: in short, that those seeking annulment or dissolution of a marriage under section 12(g) of the 1973 Act—
Mr. Hogg: I support the hon. Gentleman's argument, which has a great deal of force. Does he agree that trust law would assist him, in that where those who have been party to a marriage both contributed to the family assets, there will already be a resulting trust in favour of one or both parties? His amendment would give statutory expression to such trusts, and is to be supported on that basis alone.
Hugh Bayley: I am grateful to the right hon. and learned Gentleman. As I understand it, the property rights of the couple can be retained in such a way as to give them shared rights, although that rarely happens in a divorce. Because of that, it may not be necessary for me to press my amendment to a vote. I will be grateful if the right hon. and learned Gentleman wishes to intervene later in my speech if he feels that I have missed a point in the argument. In relation to property rights other than pensions, I understand that in the special and unusual circumstances that we are considering, a divorce court would be able to retain property—for instance, a shared family home—in joint names if the couple continued to live together in that home following the divorce.
The new clause would allow those seeking a divorce on the grounds that one of the couple was seeking a full gender recognition certificate to apply for the pension rights and the property rights in the marriage to continue after annulment or dissolution, provided that the couple continued to live together. The new clause gives two alternative definitions of living together: one where the couple do not establish a civil partnership; the other where they establish a civil partnership under the Civil Partnership Bill, which is before the House.
The new clause would also protect the right of both parties to the marriage and of others with an interest, such as a pension provider, to go to court at a later date to vary the terms of the settlement if the circumstances changed—for instance, if the couple ceased to live together.
I tabled my amendments as a safeguard to enable the House to debate the issue further on Report and to allow the Minister, if she is so minded, to make a statement about how the Government believe that private pension providers should act in circumstances such as those that I am describing.
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