House of Lords portcullis
House of Lords
Session 2003 - 04
Internet Publications
Other Bills before Parliament

Civil Partnership Bill [HL]


Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 2 — Registration

43

 

93      

Certificates of no impediment for Part 2 purposes

(1)   

This section applies where—

(a)   

two people propose to register as civil partners of each other under

Chapter 1 of Part 2, and

(b)   

one of them (“A”) resides in Scotland but the other (“B”) resides in

5

England or Wales.

(2)   

A may submit a notice of intention to register under section 84 as if A and B

intended to register as civil partners in the district in which A resides.

(3)   

If the district registrar is satisfied (after consultation, if he considers it

necessary, with the Registrar General) that there is no impediment (in terms of

10

section 88(6)) to A registering as B’s civil partner, he must issue a certificate to

A in the prescribed form that there is not known to be any such impediment.

(4)   

But the certificate may not be issued to A earlier than 14 days after the receipt

(as entered in the civil partnership notice book) of the notice under subsection

(2) unless—

15

(a)   

the circumstances are as mentioned in section 92(1), and

(b)   

A makes an election for the certificate to be issued as soon as possible.

(5)   

Any person may, at any time before a certificate is issued under subsection (3),

submit to the district registrar an objection in writing to its issue.

(6)   

Any objection made under subsection (5) must be taken into account by the

20

district registrar in deciding whether he is satisfied that there is no legal

impediment to A registering as B’s civil partner.

94      

Application of certain sections of 1965 Act to civil partnership register

Sections 34 (examination of registers by district examiners), 37(1) and (2)

(search of indexes kept by registrars), 38(1) and (2) (search of indexes kept by

25

Registrar General) and 44 (Register of Corrections etc.) of the 1965 Act apply in

relation to the civil partnership register as they apply in relation to the registers

of births, deaths and marriages.

95      

Correction of errors in civil partnership register

(1)   

No alteration is to be made in the civil partnership register except as authorised

30

by or under this or any other Act (“Act” including an Act of the Scottish

Parliament).

(2)   

Any clerical error in the register or error in it of a kind prescribed may be

corrected by the district registrar.

(3)   

The Registrar General may authorise district examiners (“district examiner”

35

having the meaning given by section 2(1) of the 1965 Act) to correct any error

in the register of a type specified by him which they discover during an

examination under section 34 of the 1965 Act.

96      

Offences

(1)   

A person (“A”) commits an offence who registers in Scotland as the civil

40

partner of another person (“B”) knowing that either or both—

(a)   

A is already married to or in civil partnership with a person other than

B, or

 

 

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

44

 

(b)   

B is already married to or in civil partnership with a person other than

A.

(2)   

A person commits an offence who knowingly—

(a)   

falsifies or forges any civil partnership document (that is to say, any

document issued or made, or purporting to be issued or made, or

5

required, under this Part),

(b)   

uses, or gives or sends to any person as genuine, any false or forged

civil partnership document,

(c)   

being an authorised registrar, purports to register two people as civil

partners of each other before any civil partnership schedule available to

10

him at the time of registration has been duly completed,

(d)   

not being an authorised registrar, conducts himself in such a way as to

lead intended civil partners to believe that he is authorised to register

them as civil partners of each other,

(e)   

being an authorised registrar, purports to register two people as civil

15

partners of each other without both of them being present, or

(f)   

being an authorised registrar, purports to register two people as civil

partners of each other in a place other than a registration office or a

place agreed under section 89.

(3)   

A person guilty of an offence under subsection (1) or (2) is liable—

20

(a)   

on conviction on indictment, to imprisonment for a term not exceeding

2 years or to a fine (or both);

(b)   

on summary conviction, to imprisonment for a term not exceeding 3

months or to a fine not exceeding level 3 on the standard scale (or both).

(4)   

Summary proceedings for an offence under subsection (1) or (2) may be

25

commenced at any time within 3 months after evidence sufficient in the

opinion of the Lord Advocate to justify the proceedings comes to his

knowledge or within 12 months after the offence is committed (whichever

period last expires).

(5)   

Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995

30

(c. 46) (time limits) has effect for the purposes of this section as it has for the

purposes of that section.

Chapter 3

Occupancy rights and tenancies

Occupancy rights

35

97      

Occupancy rights

(1)   

Where, apart from the provisions of this Chapter, one civil partner in a civil

partnership is entitled, or permitted by a third party, to occupy a family home

of the civil partnership (that civil partner being referred in this Chapter as an

“entitled partner”) and the other civil partner is not so entitled or permitted (a

40

“non-entitled partner”), the non-entitled partner has, subject to the provisions

of this Chapter, the following rights—

(a)   

if in occupation, a right to continue to occupy the family home;

(b)   

if not in occupation, a right to enter into and occupy the family home.

 

 

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

45

 

(2)   

The rights conferred by subsection (1) to continue to occupy or, as the case may

be, to enter and occupy the family home include, without prejudice to their

generality, the right to do so together with any child of the family.

(3)   

In subsection (1), an “entitled partner” includes a civil partner who is entitled,

or permitted by a third party, to occupy the family home along with an

5

individual who is not the other civil partner only if that individual has waived

a right of occupation in favour of the civil partner so entitled or permitted.

(4)   

If the entitled partner refuses to allow the non-entitled partner to exercise the

right conferred by subsection (1)(b), the non-entitled partner may exercise that

right only with the leave of the Court of Session or the sheriff under section

10

99(3) or (4).

(5)   

A non-entitled partner may renounce in writing the rights mentioned in

paragraphs (a) and (b) of subsection (1) only—

(a)   

in a particular family home, or

(b)   

in a particular property which it is intended by the civil partners will

15

become their family home.

(6)   

A renunciation under subsection (5) has effect only if, at the time of making the

renunciation, the non-entitled partner swears or affirms before a notary public

that it is made freely and without coercion of any kind.

(7)   

In this Part—

20

“child of the family” means a child under the age of 16 years who has been

accepted by both civil partners as a child of the family, and

“family” means the civil partners in the civil partnership, together with

any child so accepted by them.

(8)   

In subsection (6), “notary public” includes any person duly authorised, by the

25

law of the country other than Scotland in which the swearing or affirmation

takes place, to administer oaths or receive affirmations in that other country.

98      

Occupancy: subsidiary and consequential rights

(1)   

For the purpose of securing the occupancy rights of a non-entitled partner, that

partner is, in relation to a family home, entitled without the consent of the

30

entitled partner—

(a)   

to make any payment due by the entitled partner in respect of rent,

rates, secured loan instalments, interest or other outgoings (not being

outgoings on repairs or improvements);

(b)   

to perform any other obligation incumbent on the entitled partner (not

35

being an obligation in respect of non-essential repairs or

improvements);

(c)   

to enforce performance of an obligation by a third party which that

third party has undertaken to the entitled partner to the extent that the

entitled partner may enforce such performance;

40

(d)   

to carry out such essential repairs as the entitled partner may carry out;

(e)   

to carry out such non-essential repairs or improvements as may be

authorised by an order of the court, being such repairs or

improvements as the entitled partner may carry out and which the

court considers to be appropriate for the reasonable enjoyment of the

45

occupancy rights;

 

 

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

46

 

(f)   

to take such other steps, for the purpose of protecting the occupancy

rights of the non-entitled partner, as the entitled partner may take to

protect the occupancy rights of the entitled partner.

(2)   

Any payment made under subsection (1)(a) or any obligation performed under

subsection (1)(b) has effect in relation to the rights of a third party as if the

5

payment were made or the obligation were performed by the entitled partner;

and the performance of an obligation which has been enforced under

subsection (1)(c) has effect as if it had been enforced by the entitled partner.

(3)   

Where there is an entitled and a non-entitled partner, the court, on the

application of either of them, may, having regard in particular to the respective

10

financial circumstances of the partners, make an order apportioning

expenditure incurred or to be incurred by either partner—

(a)   

without the consent of the other partner, on any of the items mentioned

in paragraphs (a) and (d) of subsection (1);

(b)   

with the consent of the other partner, on anything relating to a family

15

home.

(4)   

Where both partners are entitled, or permitted by a third party, to occupy a

family home—

(a)   

either partner is entitled, without the consent of the other partner, to

carry out such non-essential repairs or improvements as may be

20

authorised by an order of the court, being such repairs or

improvements as the court considers to be appropriate for the

reasonable enjoyment of the occupancy rights;

(b)   

the court, on the application of either partner, may, having regard in

particular to the respective financial circumstances of the partners,

25

make an order apportioning expenditure incurred or to be incurred by

either partner, with or without the consent of the other partner, on

anything relating to the family home.

(5)   

Where one partner (“A”) owns or hires, or is acquiring under a hire-purchase

or conditional sale agreement, furniture and plenishings in a family home—

30

(a)   

the other partner may, without the consent of A—

(i)   

make any payment due by A which is necessary, or take any

other step which A is entitled to take, to secure the possession

or use of any such furniture and plenishings (and any such

payment is to have effect in relation to the rights of a third party

35

as if it were made by A), or

(ii)   

carry out such essential repairs to the furniture and plenishings

as A is entitled to carry out;

(b)   

the court, on the application of either partner, may, having regard in

particular to the respective financial circumstances of the partners,

40

make an order apportioning expenditure incurred or to be incurred by

either partner—

(i)   

without the consent of the other partner, in making payments

under a hire, hire-purchase or conditional sale agreement, or in

paying interest charges in respect of the furniture and

45

plenishings, or in carrying out essential repairs to the furniture

and plenishings, or

(ii)   

with the consent of the other partner, on anything relating to the

furniture or plenishings.

 

 

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

47

 

(6)   

An order under subsection (3), (4)(b) or (5)(b) may require one partner to make

a payment to the other partner in implementation of the apportionment.

(7)   

Any application under subsection (3), (4)(b) or (5)(b) is to be made within 5

years after the date on which any payment in respect of such incurred

expenditure was made.

5

(8)   

Where—

(a)   

the entitled partner is a tenant of a family home,

(b)   

possession of it is necessary in order to continue the tenancy, and

(c)   

the entitled partner abandons such possession,

   

the tenancy is continued by such possession by the non-entitled partner.

10

(9)   

In this section “improvements” includes alterations and enlargement.

99      

Regulation by court of rights of occupancy of family home

(1)   

Where there is an entitled and a non-entitled partner, or where both partners

are entitled, or permitted by a third party, to occupy a family home, either

partner may apply to the court for an order—

15

(a)   

declaring the occupancy rights of the applicant partner;

(b)   

enforcing the occupancy rights of the applicant partner;

(c)   

restricting the occupancy rights of the non-applicant partner;

(d)   

regulating the exercise by either partner of his or her occupancy rights;

(e)   

protecting the occupancy rights of the applicant partner in relation to

20

the other partner.

(2)   

Where one partner owns or hires, or is acquiring under a hire-purchase or

conditional sale agreement, furniture and plenishings in a family home and the

other partner has occupancy rights in that home, that other person may apply

to the court for an order granting to the applicant the possession or use in the

25

family home of any such furniture and plenishings; but, subject to section 98,

an order under this subsection does not prejudice the rights of any third party

in relation to the non-performance of any obligation under such hire-purchase

or conditional sale agreement.

(3)   

The court is to grant an application under subsection (1)(a) if it appears to the

30

court that the application relates to a family home; and, on an application

under any of paragraphs (b) to (e) of subsection (1) or under subsection (2), the

court may make such order relating to the application as appears to it to be just

and reasonable having regard to all the circumstances of the case including—

(a)   

the conduct of the partners, whether in relation to each other or

35

otherwise,

(b)   

the respective needs and financial resources of the partners,

(c)   

the needs of any child of the family,

(d)   

the extent (if any) to which—

(i)   

the family home, and

40

(ii)   

in relation only to an order under subsection (2), any item of

furniture and plenishings referred to in that subsection, is used

in connection with a trade, business or profession of either

partner, and

(e)   

whether the entitled partner offers or has offered to make available to

45

the non-entitled partner any suitable alternative accommodation.

 

 

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

48

 

(4)   

Pending the making of an order under subsection (3), the court, on the

application of either partner, may make such interim order as it considers

necessary or expedient in relation to—

(a)   

the residence of either partner in the home to which the application

relates,

5

(b)   

the personal effects of either partner or of any child of the family, or

(c)   

the furniture and plenishings,

   

but an interim order may be made only if the non-applicant partner has been

afforded an opportunity of being heard by or represented before the court.

(5)   

The court is not to make an order under subsection (3) or (4) if it appears that

10

the effect of the order would be to exclude the non-applicant partner from the

family home.

(6)   

If the court makes an order under subsection (3) or (4) which requires the

delivery to one partner of anything which has been left in or removed from the

family home, it may also grant a warrant authorising a messenger-at-arms or

15

sheriff officer to enter the family home or other premises occupied by the other

partner and to search for and take possession of the thing required to be

delivered, (if need be by opening shut and lockfast places) and to deliver the

thing in accordance with the order.

(7)   

A warrant granted under subsection (6) is to be executed only after expiry of

20

such period as the court is to specify in the order for delivery.

(8)   

Where it appears to the court—

(a)   

on the application of a non-entitled partner, that the applicant has

suffered a loss of occupancy rights or that the quality of the applicant’s

occupation of a family home has been impaired, or

25

(b)   

on the application of a partner who has been given the possession or

use of furniture and plenishings by virtue of an order under subsection

(3), that the applicant has suffered a loss of such possession or use or

that the quality of the applicant’s possession or use of the furniture and

plenishings has been impaired,

30

in consequence of any act or default on the part of the other partner which was

intended to result in such loss or impairment, it may order that other partner

to pay to the applicant such compensation as it considers just and reasonable

in respect of that loss or impairment.

(9)   

A partner may renounce in writing the right to apply under subsection (2) for

35

the possession or use of any item of furniture and plenishings.

100     

Exclusion orders

(1)   

Where there is an entitled and non-entitled partner, or where both partners are

entitled, or permitted by a third party, to occupy a family home, either partner,

whether or not that partner is in occupation at the time of the application, may

40

apply to the court for an order (in this Chapter referred to as “an exclusion

order”) suspending the occupancy rights of the other partner (“the non-

applicant partner”) in a family home.

(2)   

Subject to subsection (3), the court is to make an exclusion order if it appears to

it that to do so is necessary for the protection of the applicant or any child of

45

the family from any conduct, or threatened or reasonably apprehended

conduct, of the non-applicant partner which is or would be injurious to the

physical or mental health of the applicant or child.

 

 

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

49

 

(3)   

The court is not to make an exclusion order if it appears to it that to do so would

be unjustified or unreasonable—

(a)   

having regard to all the circumstances of the case including the matters

specified in paragraphs (a) to (e) of section 99(3), and

(b)   

where the family home—

5

(i)   

is, or is part of, an agricultural holding within the meaning of

section 1 of the Agricultural Holdings (Scotland) Act 1991

(c. 55), or

(ii)   

is let, or is a home in respect of which possession is given, to the

non-applicant partner or to both partners by an employer as an

10

incident of employment,

   

having regard to any requirement that the non-applicant partner, or, as

the case may be, both partners must reside in the family home and to

the likely consequences of the exclusion of the non-applicant partner

from the family home.

15

(4)   

In making an exclusion order the court is, on the application of the applicant

partner—

(a)   

to grant a warrant for the summary ejection of the non-applicant

partner from the family home unless the non-applicant partner satisfies

the court that it is unnecessary for it to grant such a remedy,

20

(b)   

to grant an interdict prohibiting the non-applicant partner from

entering the family home without the express permission of the

applicant, and

(c)   

to grant an interdict prohibiting the removal by the non-applicant

partner, except with the written consent of the applicant or by a further

25

order of the court, of any furniture and plenishings in the family home

unless the non-applicant partner satisfies the court that it is

unnecessary for it to grant such a remedy.

(5)   

In making an exclusion order the court may—

(a)   

grant an interdict prohibiting the non-applicant partner from entering

30

or remaining in a specified area in the vicinity of the family home;

(b)   

where the warrant for the summary ejection of the non-applicant

partner has been granted in that partner’s absence, give directions as to

the preservation of that partner’s goods and effects which remain in the

family home;

35

(c)   

on the application of either partner, make the exclusion order or the

warrant or interdict mentioned in paragraph (a), (b) or (c) of subsection

(4) or paragraph (a) of this subsection subject to such terms and

conditions as the court may prescribe;

(d)   

on the application of either partner, make such other order as it

40

considers necessary for the proper enforcement of an order made under

subsection (4) or paragraph (a), (b) or (c).

(6)   

Pending the making of an exclusion order, the court may, on the application of

the applicant partner, make an interim order suspending the occupancy rights

of the non-applicant partner in the family home to which the application for the

45

exclusion order relates; and subsections (4) and (5) apply to such an interim

order as they apply to an exclusion order.

(7)   

But an interim order may be made only if the non-applicant partner has been

afforded an opportunity of being heard by or represented before the court.

 

 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2004
Revised 31 March 2004