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Session 2003 - 04
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Standing Committee Debates
Civil Partnership Bill [Lords]

Civil Partnership Bill [Lords]

Column Number: 127

Standing Committee D

Tuesday 26 October 2004

[Mr. Frank Cook in the Chair]

Civil Partnership Bill [Lords]

9.10 am

The Chairman: I understand that my co-Chairman gave permission at a previous sitting for hon. Members to divest themselves of their top item of clothing. I have no intention of rescinding that agreement.

Clause 83

Formation of civil partnership by registration

Question proposed, That the clause stand part of the Bill.

The Parliamentary Under-Secretary of State for Scotland (Mrs. Anne McGuire): I wish to make a few comments. First, we are all delighted to see you back, Mr. Cook. Such stoicism is to be commended and proves that British politicians are every bit as resilient as American former Presidents.

The Scottish clauses in the Civil Partnership Bill achieve the same policy purpose as part 2, but have been drafted to reflect the special characteristics of Scots law. The purpose of the Government's amendments is to ensure complete legal consistency between rights that accrue to civil partners and married couples.

I trust that we shall have an opportunity this morning to consider not just the Scottish provisions but the Northern Irish provisions as we are discussing three jurisdictions in the Bill.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 1.

Division No. 39]

Bercow, Mr. John Borrow, Mr. David Bryant, Chris Carmichael, Mr. Alistair Duncan, Mr. Alan Love, Mr. Andrew
McGuire, Mrs. Anne McKechin, Ann Simon, Mr. Sion Smith, Jacqui Stewart, Mr. David Watson, Mr. Tom

Chope, Mr. Christopher

Question accordingly agreed to.

Clause 83 ordered to stand part of the Bill.

Column Number: 128

Clause 84


Amendment proposed: No. 6, in page 38, line 30, leave out 'Subject to subsection (2),'.—[Jacqui Smith.]

Question put, That the amendment be made:—

The Committee divided: Ayes 12, Noes 1.

Division No. 40]

Bercow, Mr. John Borrow, Mr. David Bryant, Chris Carmichael, Mr. Alistair Duncan, Mr. Alan Love, Mr. Andrew
McGuire, Mrs. Anne McKechin, Ann Simon, Mr. Sion Smith, Jacqui Stewart, Mr. David Watson, Mr. Tom

Chope, Mr. Christopher

Question accordingly agreed to.

Mrs. McGuire: I beg to move amendment No. 52, in clause 84, page 38, line 36, leave out

    'of understanding the nature of civil partnership'

    and insert 'of—

    (i) understanding the nature of civil partnership, or

    (ii) validly consenting to its formation'.

The Chairman: With this it will be convenient to discuss the following:

Government amendments Nos. 53 to 57.

Government new clause 1—Separation.

Government new clause 4—Succession: legal rights arising by virtue of civil partnership.

Mrs. McGuire: The amendments relate to the Scottish provisions in part 3 of the Bill, which are consequential on the creation of civil partnerships. Government amendments Nos. 52 to 56 concern the capacity of someone to enter a civil partnership. At present, clause 84 sets out that in order to enter a civil partnership, a person must understand

    ''the nature of civil partnership''.

Government amendment No. 52 provides that a person must also be capable of

    ''validly consenting to its formation''.

The purpose of the amendment is to amend clause 84(1)(e) to mirror the provisions in section 5(4)(d) of the Marriage (Scotland) Act 1977.

Mr. Alan Duncan (Rutland and Melton) (Con): What does that mean in terms of a read-across to mental capacity?

Mrs. McGuire: May I return to that point in a few minutes?

Clause 90 provides that if someone objects to a civil partnership on the grounds that either of the civil partners is incapable of understanding the nature of a civil partnership, such an objection must be accompanied by a supporting certificate signed by a registered medical practitioner. Government amendment No. 56 to clause 90 provides that the requirement of evidence as indicated above also applies when an objection is made on the grounds that one of the parties is incapable of validly consenting to a civil partnership. The policy

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intention of the Bill is that the process for entering a civil partnership mirrors that for civil marriage. It is therefore important that that aspect of the 1977 Act is replicated for civil partners.

The Justice 1 Committee of the Scottish Parliament recommended that the Scottish Executive's position on capacity to consent be reconsidered in the interests of ensuring parity in the protection available to civil partners, compared with married couples. The Deputy Minister for Justice made a commitment to the Justice 1 Committee to amend the Bill so that the provisions mirror in their entirety those that exist for civil marriage.

I want to come on to adoptive and half-blood relationships. The amendments add a further two subsections to clause 84 to confirm that half-blood relationships and adoptive relationships are included within the degrees of relationship specified in paragraph 1 of schedule 11. That is the policy intention. At present, it is not clear that adoptive and half-sibling relationships are within the prohibited degrees. The Bill as drafted could allow a man to form a civil partnership with his adoptive brother or half-brother. That is not the policy intention. The policy intent is that, since people in such a relationship cannot marry, they should similarly not be able to enter a civil partnership.

Mr. Duncan: Can the Minister confirm that that excludes foster children and wards of court?

Mrs. McGuire: My understanding is that it does exclude foster children and wards of court.

The amendment will mean that adoptive and half-blood relationships are included within the prohibited degrees, as is the case with marriage.

Government amendment No. 57 is intended to offer some clarity in clause 120. At present, clause 120 sets out that if a couple register as civil partners in Scotland despite not meeting the eligibility criteria detailed in clause 84, the civil partnership will be void, meaning that it will be treated as never having taken place. The amendment provides that where a couple are registered as civil partners in Scotland and, although eligible to do so,

    ''either of them did not validly consent'',

the civil partnership will be void.

Like married couples, civil partners will be able to apply to the court for a civil partnership to be made void. That exists in Scots common law. The purpose of the amendment is simply to make it clear in law that a civil partnership can be made void by the court if either party did not validly consent to its formation. The Justice 1 Committee of the Scottish Parliament made representations on that point and the Deputy Minister for Justice agreed to lay the amendment.

On judicial separation, new clause 1 is intended to add back into the Bill a clause that was removed on Report in the House of Lords. It is an important clause that provides an opportunity to those in civil partnerships that is already available to married couples. The clause provides that civil partners may

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apply to the Court of Session or the sheriff court for a decree of separation. The court may grant such a decree if satisfied that there are grounds justifying such a separation.

Clause 118 is consequential to this clause. It provides that if civil partners have a decree of separation and subsequently decide to dissolve their civil partnership, they may apply to the court, citing the same evidence on which the degree of separation was based. The court can treat a decree of separation as proof of the facts under which the decree was granted. However, that does not entitle a court to grant a decree of dissolution of a civil partnership without receiving evidence from the civil partner seeking the dissolution.

I come now to legal rights of succession. New clause 4 seeks to ensure that civil partners have legal rights of succession in a similar way to spouses. Legal rights are covered by common law in Scotland. The Succession (Scotland) Act 1964 is amended by schedule 28 to ensure that civil partners will have prior rights of succession. That is an important right that civil partners will require; it is a complex area of law and detailed consideration has been given as to how the common law could best be captured in the provisions for civil partners.

Before I finish I shall deal with the read-across of the hon. Member for Rutland and Melton (Mr. Duncan) on mental incapacity. If a person is incapable of consenting to a civil partnership for whatever reason, that partnership will not be valid, which includes situations where a person suffers from mental incapacity. To clarify the situation, adopted children are considered the same as natural children for the purposes of the Bill.

Mr. Christopher Chope (Christchurch) (Con): I shall address my remarks to the issue of separation. I do not understand why civil partners, if their partnership has broken down, should not just be able to split apart permanently. Throughout the course of the proceedings I have been arguing not against the principle that there should be some system of registration for partnerships outside marriage, but that the system should be established on a distinct basis from marriage.

Incorporating the concept of separation gives credence to the belief that we are contemplating none other than same-sex marriage in the Bill, although the Government deny that. The amendment passed in the other place to exclude references to separation was sensible. If the amendments are carried, in a situation where one of two civil partners who separate but are not ''divorced''—I suppose that is the expression people would use—dies, the one who survives will be entitled to a minimum of 50 per cent. of all their estate. I should have thought that if a civil partnership were on such shaky ground that the parties to it had separated, it would be better for it to be brought to a conclusion rather than to have the halfway house of separation.

I shall not repeat at length the references that I made earlier to what happens in France, where civil solidarity pacts can be applied to all couples outside

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marriage relatively easily, and can be brought to an end equally easily. It seems to me that there is a demand for that, rather than what is specified in the Bill, which is getting incredibly complicated. It will ultimately have the perverse effect of deterring a lot of people from entering into civil partnerships because they will realise that it will be very difficult to disentangle themselves from the involvement created in law if something goes wrong, as is sadly often the case. I am against the incorporation in the Bill of the concept of legal separation as some sort of halfway house.


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