House of Lords - Explanatory Note
      
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Session 2003 - 04
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Civil Partnership Bill [HL]


 

These notes refer to the Civil Partnership Bill [HL]
as introduced in the House of Lords on 30th March 2004 [HL Bill 53]

CIVIL PARTNERSHIP BILL [HL]

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EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Civil Partnership Bill [HL] as introduced in the House of Lords on 30th March 2004. They have been prepared by the Department of Trade and Industry in order to assist the reader of the Bill and to help inform debate on it. They do not form a part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The purpose of the Civil Partnership Bill is to enable same-sex couples to obtain legal recognition of their relationship by forming a civil partnership which they may do by registering as civil partners of each other provided:

  • they are of the same sex;

  • they are not already in an existing civil partnership or lawfully married

  • they are not within the prohibited degrees of relationships;

  • they are both over the age of eighteen or are over sixteen and have consent of the appropriate people or bodies (in England and Wales and Northern Ireland) or are sixteen or over in Scotland;

4.     Forming a civil partnership will have legal consequences. The civil partners will assume legal rights and responsibilities with regard to each other and to third parties, including the state.

BACKGROUND

5.     On 30th June 2003 the Government published a consultation paper, 'Civil Partnership: a framework for the legal recognition of same-sex couples', setting out its proposals for a civil partnership. After a three-month consultation period, during which over three thousand responses were received, a report summarising the consultation findings was published in November 2003. An intention to bring

1.     forward a Civil Partnership Bill was announced in the Queen's Speech on 26th November 2004.

6.     On 10th September 2003, the Scottish Executive announced that in the event that civil partnership registration was introduced in England and Wales, same-sex couples should similarly be able to form a civil partnership in Scotland in order to access a comprehensive package of rights and responsibilities in both reserved and devolved areas. The Scottish Executive therefore proposed seeking the agreement of the Scottish Parliament to the inclusion of Scottish provisions in a future Westminster Civil Partnership Bill. The Scottish Executive published a consultation document on 30th September and an analysis of consultation responses was published on 5th February 2004. The Executive subsequently reaffirmed its intention to introduce civil partnership in Scotland, if it were introduced in England and Wales, and to seek the agreement of the Scottish Parliament to the inclusion of Scottish provisions in a Westminster Bill.

7.     Northern Ireland Office Ministers set out their policy intentions on civil partnership in their consultation document, published on 19th December 2003. In it they announced that they supported the introduction of civil partnership in Northern Ireland and for this to be legislated for in the Westminster Bill. The consultation period closed on 5th March 2004. Northern Ireland Office Ministers have decided to take the proposal forward and establish a civil partnership registration scheme for Northern Ireland by means of the inclusion of the necessary legislative provisions in the Civil Partnership Bill.

THE BILL

8.     The Bill is in 8 parts and has 22 schedules:

9.     Part 1 introduces the key features of civil partnership.

10.     Part 2 sets out the arrangements for civil partnerships in England and Wales.

    -     Chapter 1 makes provision for the formation of a civil partnership by registration.

    -     Chapter 2 makes provision for the dissolution of a civil partnership, nullity and other proceedings.

    -     Chapter 3 makes provision for property and financial arrangements.

    -     Chapter 4 sets out the effect of agreeing to form a civil partnership.

    -     Chapter 5 covers issues relating to children.

    -     Chapter 6 covers other miscellaneous provisions.

11.     Part 3 sets out the arrangements for civil partnerships in Scotland.

    -     Chapter 1 deals with formation and eligibility.

    -     Chapter 2 makes provision for the formation of a civil partnership.

    -     Chapter 3 makes provision relating to occupancy rights and tenancies.

    -     Chapter 4 makes provision for interdicts.

    -     Chapter 5 makes provision for the dissolution of a civil partnership, separation and nullity.

    -     Chapter 6 covers other miscellaneous provisions and matters of interpretation.

12.     Part 4 makes provision for civil partnerships in Northern Ireland.

    -     Chapter 1 makes provision for the formation of a civil partnership.

    -     Chapter 2 makes provisions for declarations.

    -     Chapter 3 covers other supplementary provisions.

13.     Part 5 deals with civil partnerships formed or dissolved abroad.

    -     Chapter 1 makes provision for registration outside the UK under Order in Council.

    -     Chapter 2 makes provision for which overseas relationships are to be treated as civil partnerships.

    -     Chapter 3 sets out the jurisdiction of the courts in relation to dissolution etc. and makes provision for recognition of dissolutions etc in other parts of or outside the UK.

    -     Chapter 4 covers other miscellaneous and supplementary matters.

14.     Part 6 deals with relationships arising through civil partnership.

15.     Part 7 contains miscellaneous provisions.

16.     Part 8 contains supplementary material such as powers to make regulations and orders, commencement and extent.

COMMENTARY ON CLAUSES

Part 1 - Introduction

Clause 1: Civil Partnership

17.     This clause establishes civil partnership as a legal relationship between two people of the same sex. Subsection (1) provides for a civil partnership to be formed in either of two ways. The first is when two people register as civil partners of each other, either in the United Kingdom (under the relevant Part of the Bill) or under an Order in Council made under clause 150 or 151 (which allow for registration overseas at British consulates or by armed forces personnel). The second is where the couple register an "overseas relationship" which is treated as a civil partnership under Chapter 2 of Part 5. Subsection (3) provides that a civil partnership only ends on death, dissolution or annulment. The criteria for what constitutes an "overseas relationship" are set out in clauses 152 to 154.

Part 2 - Civil Partnerships: England and Wales

Introduction

The clauses in this Part extend only to England and Wales (see clause 194(1)).

Chapter 1 - Registration

Clause 2: Formation of civil partnership by registration

18.     Subsection (1) describes the point at which a civil partnership is formed and sets out who is to be present at the registration. Subsections (3) - (4) specify who must sign the civil partnership document and the administrative procedure to be completed following the civil partnership registration.

19.     Subsection (5) states that no religious service may be used while a civil partnership registrar officiates at the signing of a civil partnership document.

Clause 3: Eligibility

20.     This clause provides that a couple is not eligible to register as civil partners of each other if they are not of the same sex; or if either of them is already in a subsisting civil partnership or marriage; or if their relationship falls within the prohibited degrees of relationship listed in Schedule 1 to the Bill; or if either one of them is under 16 years of age.

Clause 4: Parental etc. consent where proposed civil partner under 18

21.     This clause sets out the provisions requiring consent where a person wishing to enter into a civil partnership is under 18 years of age. Schedule 2 identifies the appropriate persons or bodies who may give consent. Subsection (3) provides an exception to the requirement of consent where a civil partner has been bereaved and wishes to register a subsequent civil partnership before he or she is 18. Subsection (5) defines "child" for the purpose of Part 2 as a person who is under 18 (except where the term is used to express a relationship).

Clause 5: Types of pre-registration procedure

22.     Subsection (1) sets out the various procedures, available in England and Wales, under which two people may register as civil partners of each other. Subsections (2) and (3) refer respectively to the relevant modifications of those procedures which apply where one of the proposed civil partners lives in Scotland, Northern Ireland or is a member of the armed forces serving abroad, and the other has a usual residence in England and Wales, or where the proposed civil partners are former spouses, one of whom has changed sex). Subsection (4) provides for all the procedures to be subject to Schedule 1 and 2 (in connection with prohibited degrees and where a proposed civil partner is under 18).

Clause 6: Place of registration

23.     This clause states that the place where the proposed civil partnership is to be registered must be in England and Wales, must not be in religious premises and must be specified in the notice or notices of proposed civil partnership. For registration under the standard procedure the place must be agreed with the registration authority where the registration is to take place or the notice of proposed civil partnership will be void. The clause also provides that, in the case of registration under the standard procedure, the place must be one which is open to any person wishing to attend the registration.

Clause 7: The civil partnership document

24.     This clause defines the term, distinguishing between the Registrar General's licence for the special procedure and the civil partnership schedule for all other procedures and provides that the civil partnership document is delivered to the civil partnership registrar before a civil partnership registration can take place.

25.     The clause also enables the civil partnership registrar to ask the proposed civil partners for the information which is to be recorded in the register.

26.     Clauses 8 to 17 set out the standard procedure by which two people may register as civil partners of each other in England and Wales.

Clause 8: Notice of proposed civil partnership and declaration

27.     Subsection (1) states that for two people to register they must each give a notice of proposed civil partnership and have resided in England or Wales for at least 7 days immediately before giving the notice. The content of the notice may be prescribed by regulations. Subsections (3) and (4) state a notice must include a declaration about kindred, affinity or other lawful impediment and that each party has had a residence in England and Wales for at least 7 days before giving the notice. The declarations must be signed and attested by the person giving the notice and the "authorised person" (as defined by subsection (6)) respectively. Subsection (5) requires the registration authority to record the fact that the notice has been given and the information in it and that the "authorised person" attested the declaration.

Clause 9: Power to require evidence of name etc.

28.     This clause enables a registration authority to request specified evidence to verify certain information contained in a notice of proposed civil partnership. Requests for evidence may only be made before the civil partnership schedule has been issued in accordance with clause 14.

Clause 10: Proposed civil partnerships to be publicised

29.     This clause sets out which registration authority (or authorities), as well as the Registrar General, must publicise "relevant information" during the "waiting period" after a notice has been given. Subsection (2) defines "relevant information" as the names of the proposed civil partners and such other information as may be prescribed by regulations (see clause 35).

Clause 11: Meaning of the "waiting period"

30.     This clause defines the term "waiting period".

Clause 12: Power to shorten the waiting period

31.     This clause enables the Registrar General, on an application made to him, to reduce the waiting period if satisfied there are compelling reasons because of exceptional circumstances. Subsections (2) and (3) give powers for the making of procedural regulations in relation to such applications and for delegating the power to shorten the waiting period to a registration authority with power to appeal to the Registrar General.

Clause 13: Objection to proposed civil partnership

32.     This clause sets out the procedure for any person to make an objection to the issue of a civil partnership schedule. The registration authority in question must record the fact that an objection has been made and the information it contains in the register as soon as possible.

Clause 14: Issue of civil partnership schedule

33.     This clause provides for the issue of a civil partnership schedule at the end of the waiting period. Subsection (2) provides a power to prescribe the content of the schedule. The schedule may be issued on the request of one or both of the proposed civil partners, provided the relevant registration authority is satisfied that there is no lawful impediment to the couple forming a civil partnership and that any objections to the proposed civil partnership have been satisfactorily investigated by the relevant registration authority or have been withdrawn. The "relevant registration authority" means that authority which first records that a notice of proposed civil partnership has been given.

Clause 15: Appeal against refusal to issue civil partnership schedule

34.     This clause provides for an appeal to the Registrar General against the refusal of a registration authority to issue the civil partnership schedule. The Registrar General must either confirm the refusal or direct that a civil partnership schedule be issued.

Clause 16: Frivolous objections and representations: liability for costs etc.

35.     This clause provides for the Registrar General to deal with frivolous objections made against the issue of the civil partnership schedule. Subsection (3) imposes liability on a person who makes a frivolous objection or representation for costs of the proceedings before the Registrar General and for damages payable to the proposed civil partner to whom the objection or representation relates.

Clause 17: Period during which registration may take place

36.     This clause provides that until the waiting period in relation to each notice of proposed civil partnership has expired, the proposed civil partners may not form a civil partnership. It also specifies the period of validity of the civil partnership schedule issued under the standard procedure of civil partnership as being 12 months, running from when notice of proposed civil partnership is recorded, and when notices are not recorded on the same day, from the earlier of the two days. After this period the civil partnership schedule cannot be used and fresh notices will need to be given.

Clause 18: House-bound persons

37.     This clause caters for people who wish to register as civil partners of each other at the place where one of them is house-bound. The fact that a person is house-bound is shown by a statement made by a registered medical practitioner not more than 14 days before the day on which each notice is recorded that in his opinion, because of illness or disability, that person ought not to move from the place where he is at the time when the statement is made and that it is likely to be the case for at least the following 3 months that, because of the illness or disability, that person ought not to move from that place.

38.     Subsection (3) of this clause sets out the procedure for a housebound person to register as a civil partner. This is the same as the standard procedure - see clauses 8 - 17 - with the additional requirement that the receipt of a medical statement, which must accompany each notice, is recorded in the register and the applicable period (during which the civil partnership schedule may be signed) is shortened to 3 months.

39.     For the purposes of forming a civil partnership, Subsection (6) treats a person in relation to whom a medical statement is made as being resident and usually resident at the place where he or she is for the time being, even if this would not otherwise be the case.

Clause 19: Detained persons

40.     This clause provides for a detained person to register as a civil partner at the place where that person is detained.

41.     Subsection (2) defines "detained" as meaning a patient in a hospital (other than a short-term detainee under the Mental Health Act 1983 (c20)) or in a prison or other place to which the Prison Act 1952 (c.52) applies.

42.     Subsection (3) sets out the procedure for civil partnership registration involving a detained person. This is the same as the standard procedure - see clauses 8 - 17 - with the additional requirement that the receipt of a supporting statement, which must accompany each notice, is recorded in the register and the applicable period (during which the civil partnership schedule must be signed) is shortened to 3 months.

43.     Subsection (4) sets out that a supporting statement is one made by the responsible authority (as defined by subsection (6)) identifying the establishment where the person is detained and confirming that the responsible authority has no objection to that place being specified in a notice of proposed civil partnership.

44.     For the purposes of forming a civil partnership, Subsection (8) treats a detained person as being resident and usually resident at the place where he or she is for the time being, even if this would not otherwise be the case.

Clause 20: Modified procedures for certain non-residents

45.     Subsection (1) applies subsection (5) to cases where two people wish to register in England or Wales where one resides in England or Wales and the other resides in Scotland (subsection (2)); or one resides in England or Wales and the other resides in Northern Ireland (subsection (3)); or one resides in England or Wales and the other is a member of Her Majesty's forces serving outside the United Kingdom (subsection (4)).

46.     Subsection (5) provides that for the standard, house-bound and detained persons procedures the following modifications apply: (a) the person in Scotland, Northern Ireland or in HM forces serving overseas is not required to give notice in England and Wales; (b) the person in England or Wales may give notice without declaring that the other person resides in England or Wales; (c) the waiting period is calculated from the date that notice is recorded in England or Wales; (d) a civil partnership schedule is not to be issued until a certificate of no impediment, issued under the "relevant provisions" is produced to the registration authority responsible for the issue of the schedule; and (e) the applicable period (during which the civil partnership schedule must be signed) is calculated from the date notice given in England or Wales is recorded.

47.     Subsection (6) defines the "relevant provision" for a resident in Scotland as clause 93, for a resident in Northern Ireland as clause 140 and for a member of Her Majesty's forces serving outside the United Kingdom as clause 174.

48.     Clauses 21 - 27 enable a civil partnership registration to take place very quickly, where one of the couple is seriously ill and not expected to recover. This is the special procedure. The couple must show sufficient evidence, if required, for the issue of a Registrar General's licence. The licence is the equivalent of the civil partnership schedule but can only be issued on the authority of the Registrar General. It is the document that is signed by the couple to form the civil partnership.

Clause 21: Notice of proposed civil partnership

49.     This clause allows just one of the proposed civil partners to give a notice of proposed civil partnership under the special procedure, as long as that person complies with any requirements as to evidence. Subsection (3) applies most of the requirements for the declaration under the standard procedure to the special procedure.

Clause 22: Evidence to be produced

50.     This clause sets out the evidence that the Registrar General may require the person giving the notice to produce to the registration authority in order to satisfy the Registrar General of the need to use the special procedure.

51.     Under subsection (3), a certificate from a registered medical practitioner is sufficient evidence of the seriousness of a proposed civil partner's medical condition and of that person's ability to understand the nature and purport of signing a Registrar General's licence.

Clause 23: Application to be reported to the Registrar General

52.     This clause requires the registration authority to inform the Registrar General of any application it received by notice of proposed civil partnership for a licence under the special procedure and of supporting evidence, and to comply with any directions that he may give for verifying the evidence given.

Clause 24: Objection to issue of Registrar General's licence

53.     This clause sets out the procedure for any person to make an objection to the Registrar General giving authority for the issue of his licence. The registration authority in question must record the fact that an objection has been made and the information it contains in the register as soon as possible.

Clause 25: Issue of Registrar General's licence

54.     This clause applies where a notice of proposed civil partnership has been given to the registration authority under clause 21. The registration authority may issue a Register General's licence only if given authority to do so by the Registrar General. The licence must state that it is issued on the Registrar General's authority and must contain such other information as may be prescribed by regulations. The Registrar General must only give his authority if he is satisfied that one of the proposed civil partners is seriously ill and not expected to recover, and even then he must not give his authority unless he is also satisfied that there is no lawful impediment to the issue of the licence. If an objection has been made to the Registrar General giving his authority, he must not give his authority until he has investigated the objection and has decided whether it ought to obstruct the issue of the licence or the objection has been withdrawn.

Clause 26: Frivolous objections: liability for costs

55.     This clause applies if a person objects to the Registrar General giving authority for the issue of his licence and the Registrar General declares that the objection is frivolous. Subsection (2) provides that the person making the objection is liable for the costs of the proceedings before the Registrar General and for damages recoverable by the proposed civil partner to whom the objection relates.

Clause 27: Period during which registration may take place

56.     This clause establishes the period of validity of Registrar General's licences issued under the special procedure as 1 month from the day on which notice is given. After this period the notice and licence are void.

Clause 28: Registration Authorities

57.     This clause defines "registration authority" in relation to England and Wales.

Clause 29: Civil partnership registrars

58.     This clause defines civil partnership registrars (subsection (1)) and places a duty on registration authorities to ensure that there are sufficient individuals designated as such in their area to carry out the functions of civil partnership registrars (subsection (2)) and sets out the administrative arrangements relating to these designations (subsection (3)). It also places a duty on the Registrar General and make available to the public a list of civil partnership registrars and the registration authorities for which they are designated to act.

 
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