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Session 2003 - 04
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Other Bills before Parliament

Civil Partnership Bill [HL]


Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition

80

 

Jurisdiction of Scottish courts

165     

Jurisdiction of Scottish courts

(1)   

The Court of Session has jurisdiction to entertain an action for the dissolution

of a civil partnership or for separation of civil partners if (and only if)—

(a)   

the court has jurisdiction under section 159 regulations,

5

(b)   

no court has, or is recognised as having, jurisdiction under section 159

regulations and either civil partner is domiciled in Scotland on the date

when the proceedings are begun, or

(c)   

the following conditions are met—

(i)   

the two people concerned registered as civil partners of each

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other in Scotland,

(ii)   

no court has, or is recognised as having, jurisdiction under

section 159 regulations, and

(iii)   

it appears to the court to be in the interests of justice to assume

jurisdiction in the case.

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(2)   

The sheriff has jurisdiction to entertain an action for the dissolution of a civil

partnership or for separation of civil partners if (and only if) the requirements

of paragraph (a) or (b) of subsection (1) are met and either civil partner—

(a)   

was resident in the sheriffdom for a period of 40 days ending with the

date when the action is begun, or

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(b)   

had been resident in the sheriffdom for a period of not less than 40 days

ending not more than 40 days before that date and has no known

residence in Scotland at that date.

(3)   

The Court of Session has jurisdiction to entertain an action for declarator of

nullity of a civil partnership if (and only if)—

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(a)   

the Court has jurisdiction under section 159 regulations,

(b)   

no court has, or is recognised as having, jurisdiction under section 159

regulations and either of the ostensible civil partners—

(i)   

is domiciled in Scotland on the date when the proceedings are

begun, or

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(ii)   

died before that date and either was at death domiciled in

Scotland or had been habitually resident in Scotland

throughout the period of 1 year ending with the date of death.

(4)   

At any time when proceedings are pending in respect of which a court has

jurisdiction by virtue of any of subsections (1) to (3) (or this subsection) it also

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has jurisdiction to entertain other proceedings, in respect of the same civil

partnership (or ostensible civil partnership), for dissolution, separation or

declarator of nullity, even though that jurisdiction would not be exercisable

under any of subsections (1) to (3).

166     

Sisting of proceedings

40

(1)   

Rules of court may make provision in relation to civil partnerships

corresponding to the provision made in relation to marriages by Schedule 3 to

the Domicile and Matrimonial Proceedings Act 1973 (c. 45) (sisting of Scottish

consistorial actions).

(2)   

The rules may in particular make provision—

45

 

 

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition

81

 

(a)   

for the provision of information by the pursuer and by any other person

who has entered appearance in an action where proceedings relating to

the same civil partnership (or ostensible civil partnership) are

continuing in another jurisdiction, and

(b)   

for an action to be sisted where there are concurrent proceedings

5

elsewhere in respect of the same civil partnership (or ostensible civil

partnership).

167     

Scottish ancillary and collateral orders

(1)   

This section applies where after the commencement of this Act an application

is competently made to the Court of Session or the sheriff for the making, or the

10

variation or recall, of an order which is ancillary or collateral to an action for—

(a)   

the dissolution of a civil partnership,

(b)   

the separation of civil partners, or

(c)   

declarator of nullity of a civil partnership.

(2)   

And the section applies whether the application is made in the same

15

proceedings or in other proceedings and whether it is made before or after the

pronouncement of a final decree in the action.

(3)   

If the court has or, as the case may be, had jurisdiction to entertain the action,

it has jurisdiction to entertain the application unless—

(a)   

jurisdiction to entertain the action was under section 159 regulations,

20

and

(b)   

to make, vary or recall the order to which the application relates would

contravene the regulations.

(4)   

Where the Court of Session has jurisdiction by virtue of this section to entertain

an application for the variation or recall, as respects any person, of an order

25

made by it and the order is one to which section 8 (variation and recall by the

sheriff of certain orders made by the Court of Session) of the Law Reform

(Miscellaneous Provisions) (Scotland) Act 1966 (c. 19) applies, then for the

purposes of any application under that section for the variation or recall of the

order in so far as it relates to the person, the sheriff (as defined in that section)

30

has jurisdiction to exercise the power conferred on him by that section.

(5)   

The reference in subsection (1) to an order which is ancillary or collateral is to

an order relating to children, aliment, financial provision or expenses.

Recognition of dissolution, annulment and separation

168     

Effect of dissolution, annulment or separation obtained in the UK

35

(1)   

No dissolution or annulment of a civil partnership obtained in one part of the

United Kingdom is effective in any part of the United Kingdom unless

obtained from a court of civil jurisdiction.

(2)   

Subject to subsections (3) and (4), the validity of a dissolution or annulment of

a civil partnership or a legal separation of civil partners which has been

40

obtained from a court of civil jurisdiction in one part of the United Kingdom is

to be recognised throughout the United Kingdom.

(3)   

Recognition of the validity of a dissolution, annulment or legal separation

obtained from a court of civil jurisdiction in one part of the United Kingdom

 

 

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition

82

 

may be refused in any other part if the dissolution, annulment or separation

was obtained at a time when it was irreconcilable with a decision determining

the question of the subsistence or validity of the civil partnership—

(a)   

previously given by a court of civil jurisdiction in the other part, or

(b)   

previously given by a court elsewhere and recognised or entitled to be

5

recognised in the other part.

(4)   

Recognition of the validity of a dissolution or legal separation obtained from a

court of civil jurisdiction in one part of the United Kingdom may be refused in

any other part if the dissolution or separation was obtained at a time when,

according to the law of the other part, there was no subsisting civil partnership.

10

169     

Recognition in the UK of overseas dissolution, annulment or separation

(1)   

Subject to subsection (2), the validity of an overseas dissolution, annulment or

legal separation is to be recognised in the United Kingdom if, and only if, it is

entitled to recognition by virtue of sections 170 to 172.

(2)   

This section and sections 170 to 172 do not apply to an overseas dissolution,

15

annulment or legal separation as regards which provision as to recognition is

made by section 159 regulations.

(3)   

For the purposes of subsections (1) and (2) and sections 170 to 172, an overseas

dissolution, annulment or legal separation is a dissolution or annulment of a

civil partnership or a legal separation of civil partners which has been obtained

20

outside the United Kingdom.

170     

Grounds for recognition

(1)   

The validity of an overseas dissolution, annulment or legal separation obtained

by means of proceedings is to be recognised if—

(a)   

the dissolution, annulment or legal separation is effective under the law

25

of the country in which it was obtained, and

(b)   

at the relevant date either civil partner—

(i)   

was habitually resident in the country in which the dissolution,

annulment or legal separation was obtained,

(ii)   

was domiciled in that country, or

30

(iii)   

was a national of that country.

(2)   

The validity of an overseas dissolution, annulment or legal separation obtained

otherwise than by means of proceedings is to be recognised if—

(a)   

the dissolution, annulment or legal separation is effective under the law

of the country in which it was obtained,

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(b)   

at the relevant date—

(i)   

each civil partner was domiciled in that country, or

(ii)   

either civil partner was domiciled in that country and the other

was domiciled in a country under whose law the dissolution,

annulment or legal separation is recognised as valid, and

40

(c)   

neither civil partner was habitually resident in the United Kingdom

throughout the period of 1 year immediately preceding that date.

(3)   

In this section “the relevant date” means—

 

 

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition

83

 

(a)   

in the case of an overseas dissolution, annulment or legal separation

obtained by means of proceedings, the date of the commencement of

the proceedings;

(b)   

in the case of an overseas dissolution, annulment or legal separation

obtained otherwise than by means of proceedings, the date on which it

5

was obtained.

(4)   

Where in the case of an overseas annulment the relevant date fell after the

death of either civil partner, any reference in subsection (1) or (2) to that date is

to be read in relation to that civil partner as a reference to the date of death.

171     

Refusal of recognition

10

(1)   

Recognition of the validity of an overseas dissolution, annulment or legal

separation may be refused in any part of the United Kingdom if the

dissolution, annulment or separation was obtained at a time when it was

irreconcilable with a decision determining the question of the subsistence or

validity of the civil partnership—

15

(a)   

previously given by a court of civil jurisdiction in that part of the

United Kingdom, or

(b)   

previously given by a court elsewhere and recognised or entitled to be

recognised in that part of the United Kingdom.

(2)   

Recognition of the validity of an overseas dissolution or legal separation may

20

be refused in any part of the United Kingdom if the dissolution or separation

was obtained at a time when, according to the law of that part of the United

Kingdom, there was no subsisting civil partnership.

(3)   

Recognition of the validity of an overseas dissolution, annulment or legal

separation may be refused if—

25

(a)   

in the case of a dissolution, annulment or legal separation obtained by

means of proceedings, it was obtained—

(i)   

without such steps having been taken for giving notice of the

proceedings to a civil partner as, having regard to the nature of

the proceedings and all the circumstances, should reasonably

30

have been taken, or

(ii)   

without a civil partner having been given (for any reason other

than lack of notice) such opportunity to take part in the

proceedings as, having regard to those matters, he should

reasonably have been given, or

35

(b)   

in the case of a dissolution, annulment or legal separation obtained

otherwise than by means of proceedings—

(i)   

there is no official document certifying that the dissolution,

annulment or legal separation is effective under the law of the

country in which it was obtained, or

40

(ii)   

where either civil partner was domiciled in another country at

the relevant date, there is no official document certifying that

the dissolution, annulment or legal separation is recognised as

valid under the law of that other country, or

(c)   

in either case, recognition of the dissolution, annulment or legal

45

separation would be manifestly contrary to public policy.

(4)   

In this section—

 

 

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition

84

 

   

“official”, in relation to a document certifying that a dissolution,

annulment or legal separation is effective, or is recognised as valid,

under the law of any country, means issued by a person or body

appointed or recognised for the purpose under that law;

   

“the relevant date” has the same meaning as in section 170.

5

172     

Supplementary provisions relating to recognition of dissolution etc.

(1)   

For the purposes of sections 170 and 171, a civil partner is to be treated as

domiciled in a country if he was domiciled in that country—

(a)   

according to the law of that country in family matters, or

(b)   

according to the law of the part of the United Kingdom in which the

10

question of recognition arises.

(2)   

The Lord Chancellor or the Scottish Ministers may by regulations make

provision—

(a)   

with respect to recognition of the validity of an overseas annulment in

cases where there are cross-proceedings;

15

(b)   

with respect to cases where a legal separation is converted under the

law of the country in which it is obtained into a dissolution which is

effective under the law of that country;

(c)   

with respect to proof of findings of fact made in proceedings in any

country outside the United Kingdom;

20

(d)   

applying sections 170 and 171 with modifications in relation to any

country whose territories have different systems of law in force in

matters of dissolution, annulment or legal separation.

(3)   

The power to make regulations under subsection (2) is exercisable by statutory

instrument.

25

(4)   

A statutory instrument containing such regulations—

(a)   

if made by the Lord Chancellor, is subject to annulment in pursuance of

a resolution of either House of Parliament;

(b)   

if made by the Scottish Ministers, is subject to annulment in pursuance

of a resolution of the Scottish Parliament.

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(5)   

In this section (except subsection (4)) and sections 168 to 171 and 173

   

“annulment” includes any order annulling a civil partnership, however

expressed;

   

“part of the United Kingdom” means England and Wales, Scotland or

Northern Ireland;

35

   

“proceedings” means judicial or other proceedings.

(6)   

Nothing in this Chapter is to be read as requiring the recognition of any finding

of fault made in proceedings for dissolution, annulment or legal separation or

of any maintenance, custody or other ancillary order made in any such

proceedings.

40

173     

Non-recognition of overseas dissolution etc. not a bar

(1)   

This section applies where, in any part of the United Kingdom—

(a)   

a dissolution or annulment of a civil partnership has been granted by a

court of civil jurisdiction, or

 

 

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 4 — Miscellaneous and supplementary

85

 

(b)   

the validity of a dissolution or annulment of a civil partnership is

recognised by virtue of this Chapter.

(2)   

The fact that the dissolution or annulment would not be recognised outside the

United Kingdom does not—

(a)   

preclude either party from forming a subsequent civil partnership or

5

marriage in that part of the United Kingdom, or

(b)   

cause the subsequent civil partnership or marriage of either party

(wherever it takes place) to be treated as invalid in that part.

Chapter 4

Miscellaneous and supplementary

10

174     

Commanding officers’ certificates for Part 2 purposes

(1)   

Her Majesty may by Order in Council make provision in relation to cases

where—

(a)   

two people wish to register as civil partners of each other in England

and Wales (under Chapter 1 of Part 2), and

15

(b)   

one of them (“A”) is a member of Her Majesty’s forces serving outside

the United Kingdom and the other is resident in England and Wales,

   

for the issue by A’s commanding officer to A of a certificate of no impediment.

(2)   

The Order may provide for the issue of the certificate to be subject to the giving

of such notice and the making of such declarations as may be prescribed.

20

(3)   

A certificate of no impediment is a certificate that no legal impediment to the

formation of the civil partnership has been shown to the commanding officer

issuing the certificate to exist.

(4)   

“Commanding officer”—

(a)   

in relation to a person subject to military law, means the officer who

25

would be that person’s commanding officer for the purposes of section

82 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) if he were charged with an

offence;

(b)   

in relation to a person subject to air-force law, means the officer who

would be that person’s commanding officer for the purposes of section

30

82 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) if he were charged with

an offence;

(c)   

in relation to a person subject to the Naval Discipline Act 1957 (c. 53),

means the officer in command of the ship or naval establishment to

which he belongs.

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175     

Certificates of no impediment to overseas relationships

(1)   

Her Majesty may by Order in Council make provision for the issue of

certificates of no impediment to—

(a)   

United Kingdom nationals, and

(b)   

such other persons falling within subsection (2) as may be prescribed,

40

   

who wish to enter into overseas relationships in prescribed countries or

territories outside the United Kingdom with persons who are not United

Kingdom nationals and who do not fall within subsection (2).

 

 

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 4 — Miscellaneous and supplementary

86

 

(2)   

A person falls within this subsection if under any enactment for the time being

in force in any country mentioned in Schedule 3 to the British Nationality Act

1981 (c. 61) (Commonwealth countries) that person is a citizen of that country.

(3)   

A certificate of no impediment is a certificate that, after proper notices have

been given, no legal impediment to the recipient entering into the overseas

5

relationship has been shown to the person issuing the certificate to exist.

176     

Transmission of certificates of registration of overseas relationships

(1)   

Her Majesty may by Order in Council provide—

(a)   

for the transmission to the Registrar General, by such persons or in such

manner as may be prescribed, of certificates of the registration of

10

overseas relationships entered into by United Kingdom nationals in

prescribed countries or territories outside the United Kingdom,

(b)   

for the issue by the Registrar General of a certified copy of such a

certificate received by him, and

(c)   

for such certified copies to be received in evidence.

15

(2)   

“The Registrar General” means—

(a)   

in relation to England and Wales, the Registrar General for England

and Wales,

(b)   

in relation to Scotland, the Registrar General of Births, Deaths and

Marriages for Scotland, and

20

(c)   

in relation to Northern Ireland, the Registrar General for Northern

Ireland.

177     

Power to make provision relating to certain Commonwealth forces

(1)   

This section applies if it appears to Her Majesty that any law in force in Canada,

the Commonwealth of Australia or New Zealand (or in a territory of either of

25

the former two countries) makes, in relation to forces raised there, provision

similar to that made by section 151 (registration by armed forces personnel).

(2)   

Her Majesty may by Order in Council make provision for securing that the law

in question has effect as part of the law of the United Kingdom.

178     

Fees

30

(1)   

The power to make an order under section 34(1) (fees) includes power to make

an order prescribing fees in respect of anything which, by virtue of an Order in

Council under this Part, is required to be done by registration authorities in

England and Wales or by or on behalf of the Registrar General for England and

Wales.

35

(2)   

Regulations made by the Registrar General of Births, Deaths and Marriages for

Scotland may prescribe fees in respect of anything which, by virtue of an Order

in Council under this Part, is required to be done by him or on his behalf.

(3)   

Subsections (3) and (4) of section 122 apply to regulations made under

subsection (2) as they apply to regulations under Part 3.

40

(4)   

Regulations made by the Department of Finance and Personnel may prescribe

fees in respect of anything which, by virtue of an Order in Council under this

Part, is required to be done by or on behalf of the Registrar General for

Northern Ireland.

 

 

 
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