Civil Partnership Act 2004

2004 Chapter 33

An Act to make provision for and in connection with civil partnership.

[18th November 2004]

Part 2 of Schedule 1 (provisions applicable in connection with prohibited degrees of relationship), and

b

Parts 2 and 3 of Schedule 2 (provisions applicable where proposed civil partner is under 18).

4

This section is also subject to section 249 and Schedule 23 (immigration control and formation of civil partnerships).

A registration authority may provide a place in its area for the registration of civil partnerships.

7The civil partnership document

a

at the time when the notice is given, and

b

in the presence of an authorised person;

and the authorised person must attest the declaration by adding his name, description and place of residence.

4

The necessary declaration is a solemn declaration in writing—

a

that the proposed civil partner believes that there is no impediment of kindred or affinity or other lawful hindrance to the formation of the civil partnership;

b

that each of the proposed civil partners has had a usual place of residence in England or Wales for at least 7 days immediately before giving the notice.

5

Where a notice of proposed civil partnership is given to a registration authority in accordance with this section, the registration authority must ensure that the following information is recorded in the register as soon as possible—

a

the fact that the notice has been given and the information in it;

b

the fact that the authorised person has attested the declaration.

6

“Authorised person” means an employee or officer or other person provided by a registration authority who is authorised by that authority to attest notices of proposed civil partnership.

7

For the purposes of this Chapter, a notice of proposed civil partnership is recorded when subsection (5) is complied with.

9Power to require evidence of name etc.

1

The registration authority to which a notice of proposed civil partnership is given may require the person giving the notice to provide it with specified evidence—

a

relating to that person, or

b

if the registration authority considers that the circumstances are exceptional, relating not only to that person but also to that person’s proposed civil partner.

2

Such a requirement may be imposed at any time before the registration authority issues the civil partnership schedule under section 14.

3

“Specified evidence”, in relation to a person, means such evidence as may be specified in guidance issued by the Registrar General—

a

of the person’s name and surname,

b

of the person’s age,

c

as to whether the person has previously formed a civil partnership or a marriage and, if so, as to the ending of the civil partnership or marriage,

d

of the person’s nationality, and

e

as to the person’s residence in England or Wales during the period of 7 days preceding the giving of a notice of proposed civil partnership by that person.

If an objection to the issue of the civil partnership schedule has been recorded in the register, no civil partnership schedule is to be issued until—

a

the relevant registration authority has investigated the objection and is satisfied that the objection ought not to obstruct the issue of the civil partnership schedule, or

b

the objection has been withdrawn by the person who made it.

5

“The relevant registration authority” means the authority which first records that a notice of proposed civil partnership has been given by one of the proposed civil partners.

15Appeal against refusal to issue civil partnership schedule

1

If the registration authority refuses to issue a civil partnership schedule—

a

because an objection to its issue has been made under section 13, or

b

in reliance on section 14(3),

either of the proposed civil partners may appeal to the Registrar General.

2

On an appeal under this section the Registrar General must either confirm the refusal or direct that a civil partnership schedule be issued.

damages recoverable by the proposed civil partner to whom the objection or representation relates.

4

For the purpose of enabling any person to recover any such costs and damages, a copy of a declaration of the Registrar General purporting to be sealed with the seal of the General Register Office is evidence that the Registrar General has made the declaration.

17Period during which registration may take place

5

A medical statement may not be made in relation to a person who is detained as described in section 19(2).

6

For the purposes of this Chapter, a person in relation to whom a medical statement is made is to be treated, if he would not otherwise be so treated, as resident and usually resident at the place where he is for the time being.

1

Any person may object to the Registrar General giving authority for the issue of his licence by giving the Registrar General or any registration authority notice of his objection.

2

A notice of objection must—

a

state the objector’s place of residence and the ground of objection, and

b

be signed by or on behalf of the objector.

3

If a notice of objection is given to a registration authority, it must ensure that the fact that it has been given and the information in it are recorded in the register as soon as possible.

25Issue of Registrar General’s licence

1

This section applies where a notice of proposed civil partnership is given to a registration authority under section 21.

2

The registration authority may issue a Registrar General’s licence if, and only if, given authority to do so by the Registrar General.

3

The Registrar General—

a

may not give his authority unless he is satisfied that one of the proposed civil partners is seriously ill and not expected to recover, but

b

if so satisfied, must give his authority unless a lawful impediment to the issue of his licence has been shown to his satisfaction to exist.

4

A licence under this section must state that it is issued on the authority of the Registrar General.

5

Regulations may (subject to subsection (4)) make provision as to the contents of a licence under this section.

6

If an objection has been made to the Registrar General giving authority for the issue of his licence, he is not to give that authority until—

a

he has investigated the objection and decided whether it ought to obstruct the issue of his licence, or

b

the objection has been withdrawn by the person who made it.

7

Any decision of the Registrar General under subsection (6)(a) is final.

26Frivolous objections: liability for costs

1

This section applies if—

a

a person objects to the Registrar General giving authority for the issue of his licence, but

b

the Registrar General declares that the grounds on which the objection is made are frivolous and ought not to obstruct the issue of his licence.

2

The person who made the objection is liable for—

a

the costs of the proceedings before the Registrar General, and

b

damages recoverable by the proposed civil partner to whom the objection relates.

4

The Registrar General must make available to the public a list—

a

of civil partnership registrars, and

b

of the registration authorities for which they are designated to act.

30The Registrar General and the register

1

In this Chapter “the Registrar General” means the Registrar General for England and Wales.

2

The Registrar General must provide a system for keeping any records that relate to civil partnerships and are required by this Chapter to be made.

3

The system may, in particular, enable those records to be kept together with other records kept by the Registrar General.

4

In this Chapter “the register” means the system for keeping records provided under subsection (2).

31Offences relating to civil partnership schedule

1

A person commits an offence if he issues a civil partnership schedule knowing that he does so—

a

before the waiting period in relation to each notice of proposed civil partnership has expired,

b

after the end of the applicable period, or

c

at a time when its issue has been forbidden under Schedule 2 by a person entitled to forbid its issue.

2

A person commits an offence if, in his actual or purported capacity as a civil partnership registrar, he officiates at the signing of a civil partnership schedule by proposed civil partners knowing that he does so—

a

at a place other than the place specified in the notices of proposed civil partnership and the civil partnership schedule,

b

in the absence of a civil partnership registrar,

c

before the waiting period in relation to each notice of proposed civil partnership has expired, or

d

even though the civil partnership is void under section 49(b) or (c).

3

A person guilty of an offence under subsection (1) or (2) is liable on conviction on indictment to imprisonment for a term not exceeding 5 years or to a fine (or both).

4

A prosecution under this section may not be commenced more than 3 years after the commission of the offence.

32Offences relating to Registrar General’s licence

he refuses or without reasonable cause omits to do so.

4

A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

5

A person commits an offence if he records in the register information relating to the formation of a civil partnership by the signing of a civil partnership schedule, knowing that the civil partnership is void under section 49(b) or (c).

6

A person guilty of an offence under subsection (5) is liable on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or both).

7

A person commits an offence if he records in the register information relating to the formation of a civil partnership by the signing of a Registrar General’s licence, knowing that the civil partnership is void under section 49(b) or (c).

8

A person guilty of an offence under subsection (7) is liable—

a

on conviction on indictment, to imprisonment for a term not exceeding 3 years or to a fine (or both);

b

on summary conviction, to a fine not exceeding the statutory maximum.

9

A prosecution under subsection (5) or (7) may not be commenced more than 3 years after the commission of the offence.

34Fees

1

e

for the issue by the Registrar General of guidance supplementing any provision made by the regulations.

f

for the issue by registration authorities or the Registrar General of certified copies of entries in the register and for such copies to be received in evidence.

3

In this Chapter “regulations” means regulations made by the Registrar General with the approval of the Chancellor of the Exchequer.

4

Any power to make regulations or an order under this Chapter is exercisable by statutory instrument.

5

A statutory instrument containing an order under section 34 is subject to annulment in pursuance of a resolution of either House of Parliament.

6

No order may be made under section 35 unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.

Chapter 2Dissolution, nullity and other proceedings

Introduction

37Powers to make orders and effect of orders

1

The court may, in accordance with this Chapter—

a

make an order (a “dissolution order”) which dissolves a civil partnership on the ground that it has broken down irretrievably;

b

4

In a particular case the court dealing with the case may by order shorten the prescribed period.

5

The power to make an order under subsection (2) is exercisable by statutory instrument.

6

An instrument containing such an order is subject to annulment in pursuance of a resolution of either House of Parliament.

39Intervention of the Queen’s Proctor

1

This section applies if an application has been made for a dissolution, nullity or presumption of death order.

2

The court may, if it thinks fit, direct that all necessary papers in the matter are to be sent to the Queen’s Proctor who must under the directions of the Attorney General instruct counsel to argue before the court any question in relation to the matter which the court considers it necessary or expedient to have fully argued.

3

If any person at any time—

a

during the progress of the proceedings, or

b

before the conditional order is made final,

gives information to the Queen’s Proctor on any matter material to the due decision of the case, the Queen’s Proctor may take such steps as the Attorney General considers necessary or expedient.

4

If the Queen’s Proctor intervenes or shows cause against the making of the conditional order in any proceedings relating to its making, the court may make such order as may be just as to—

a

the payment by other parties to the proceedings of the costs incurred by him in doing so, or

b

the payment by the Queen’s Proctor of any costs incurred by any of those parties because of his doing so.

5

The Queen’s Proctor is entitled to charge as part of the expenses of his office—

a

the costs of any proceedings under subsection (2);

b

if his reasonable costs of intervening or showing cause as mentioned in subsection (4) are not fully satisfied by an order under subsection (4)(a), the amount of the difference;

c

if the Treasury so directs, any costs which he pays to any parties under an order made under subsection (4)(b).

is subject to section 48(4) (protection for respondent in separation cases) and section 63 (restrictions on making of orders affecting children).

41Time bar on applications for dissolution orders

1

No application for a dissolution order may be made to the court before the end of the period of 1 year from the date of the formation of the civil partnership.

2

Nothing in this section prevents the making of an application based on matters which occurred before the end of the 1 year period.

42Attempts at reconciliation of civil partners

1

This section applies in relation to cases where an application is made for a dissolution or separation order.

2

Rules of court must make provision for requiring the solicitor acting for the applicant to certify whether he has—

a

discussed with the applicant the possibility of a reconciliation with the other civil partner, and

b

given the applicant the names and addresses of persons qualified to help effect a reconciliation between civil partners who have become estranged.

3

If at any stage of proceedings for the order it appears to the court that there is a reasonable possibility of a reconciliation between the civil partners, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect a reconciliation between them.

4

The power to adjourn under subsection (3) is additional to any other power of adjournment.

43Consideration by the court of certain agreements or arrangements

c

that the applicant and the respondent have lived apart for a continuous period of at least 5 years immediately preceding the making of the application (“5 years’ separation”);

d

that the respondent has deserted the applicant for a continuous period of at least 2 years immediately preceding the making of the application.

any two or more periods not exceeding 6 months in all,

during which the civil partners resumed living with each other.

7

But no period during which the civil partners have lived with each other counts as part of the period during which the civil partners have lived apart or as part of the period of desertion.

8

For the purposes of section 44(5)(b) and (c) and this section civil partners are to be treated as living apart unless they are living with each other in the same household, and references in this section to civil partners living with each other are to be read as references to their living with each other in the same household.

46Dissolution order not precluded by previous separation order etc.

1

Subsections (2) and (3) apply if any of the following orders has been made in relation to a civil partnership—

a

a separation order;

b

an order under Schedule 6 (financial relief in magistrates’ courts etc.);

c

an order under section 33 of the Family Law Act 1996 (c. 27) (occupation orders);

d

an order under section 37 of the 1996 Act (orders where neither civil partner entitled to occupy the home).

2

Nothing prevents—

a

either civil partner from applying for a dissolution order, or

b

the court from making a dissolution order,

on the same facts, or substantially the same facts, as those proved in support of the making of the order referred to in subsection (1).

3

On the application for the dissolution order, the court—

a

may treat the order referred to in subsection (1) as sufficient proof of any desertion or other fact by reference to which it was made, but

b

must not make the dissolution order without receiving evidence from the applicant.

4

2

Subsection (3) applies if—

a

the making of a dissolution order is opposed under this section,

b

the court finds that the applicant is entitled to rely in support of his application on the fact of 5 years’ separation and makes no such finding as to any other fact mentioned in section 44(5), and

c

apart from this section, the court would make a dissolution order.

3

The court must—

a

consider all the circumstances, including the conduct of the civil partners and the interests of the civil partners and of any children or other persons concerned, and

b

if it is of the opinion that the ground mentioned in subsection (1) is made out, dismiss the application for the dissolution order.

4

“Hardship” includes the loss of the chance of acquiring any benefit which the respondent might acquire if the civil partnership were not dissolved.

48Proceedings before order made final: protection for respondent in separation cases

1

The court may, on an application made by the respondent, rescind a conditional dissolution order if—

a

it made the order on the basis of a finding that the applicant was entitled to rely on the fact of 2 years’ separation coupled with the respondent’s consent to a dissolution order being made,

b

it made no such finding as to any other fact mentioned in section 44(5), and

c

it is satisfied that the applicant misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding to give his consent.

2

Subsections (3) to (5) apply if—

a

the respondent to an application for a dissolution order in which the applicant alleged—

i

2 years’ separation coupled with the respondent’s consent to a dissolution order being made, or

ii

5

The court may if it thinks fit make the order final if—

a

it appears that there are circumstances making it desirable that the order should be made final without delay, and

b

it has obtained a satisfactory undertaking from the applicant that he will make such financial provision for the respondent as it may approve.

Nullity

49Grounds on which civil partnership is void

Where two people register as civil partners of each other in England and Wales, the civil partnership is void if—

a

at the time when they do so, they are not eligible to register as civil partners of each other under Chapter 1 (see section 3),

b

at the time when they do so they both know—

i

that due notice of proposed civil partnership has not been given,

ii

that the civil partnership document has not been duly issued,

iii

that the civil partnership document is void under section 17(3) or 27(2) (registration after end of time allowed for registering),

iv

that the place of registration is a place other than that specified in the notices (or notice) of proposed civil partnership and the civil partnership document, or

v

that a civil partnership registrar is not present, or

c

the civil partnership document is void under paragraph 6(5) of Schedule 2 (civil partnership between child and another person forbidden).

50Grounds on which civil partnership is voidable

1

Where two people register as civil partners of each other in England and Wales, the civil partnership is voidable if—

a

either of them did not validly consent to its formation (whether as a result of duress, mistake, unsoundness of mind or otherwise);

b

at the time of its formation either of them, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder of such a kind or to such an extent as to be unfitted for civil partnership;

c

at the time of its formation, the respondent was pregnant by some person other than the applicant;

d

an interim gender recognition certificate under the Gender Recognition Act 2004 (c. 7) has, after the time of its formation, been issued to either civil partner;

e

the respondent is a person whose gender at the time of its formation had become the acquired gender under the 2004 Act.

2

In this section and section 51 “mental disorder” has the same meaning as in the Mental Health Act 1983 (c. 20).

Without prejudice to subsections (1) and (2), the court must not make a nullity order by virtue of section 50(1)(c) or (e) unless it is satisfied that the applicant was at the time of the formation of the civil partnership ignorant of the facts alleged.

52Proof of certain matters not necessary to validity of civil partnership

1

Where two people have registered as civil partners of each other in England and Wales, it is not necessary in support of the civil partnership to give any proof—

a

that any person whose consent to the civil partnership was required by section 4 (parental etc. consent) had given his consent, or

b

that the civil partnership registrar was designated as such by the registration authority in whose area the registration took place;

and no evidence is to be given to prove the contrary in any proceedings touching the validity of the civil partnership.

2

Subsection (1)(a) is subject to section 49(c) (civil partnership void if forbidden).

53Power to validate civil partnership

1

Where two people have registered as civil partners of each other in England and Wales, the Lord Chancellor may by order validate the civil partnership if it appears to him that it is or may be void under section 49(b).

2

An order under subsection (1) may include provisions for relieving a person from any liability under section 31(2), 32(2) or 33(5) or (7).

3

The draft of an order under subsection (1) must be advertised, in such manner as the Lord Chancellor thinks fit, not less than one month before the order is made.

4

The Lord Chancellor must—

a

consider all objections to the order sent to him in writing during that month, and

b

if it appears to him necessary, direct a local inquiry into the validity of any such objections.

5

An order under subsection (1) is subject to special parliamentary procedure.

a declaration that the civil partnership was at its inception a valid civil partnership;

b

a declaration that the civil partnership subsisted on a date specified in the application;

c

a declaration that the civil partnership did not subsist on a date so specified;

d

a declaration that the validity of a dissolution, annulment or legal separation obtained outside England and Wales in respect of the civil partnership is entitled to recognition in England and Wales;

e

a declaration that the validity of a dissolution, annulment or legal separation so obtained in respect of the civil partnership is not entitled to recognition in England and Wales.

2

Where an application under subsection (1) is made to a court by a person other than a civil partner in the civil partnership to which the application relates, the court must refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of that application.

59General provisions as to making and effect of declarations

1

3

This section applies to—

a

any child of the family who has not reached 16 at the date when the court considers the case in accordance with the requirements of this section, and

b

any child of the family who has reached 16 at that date and in relation to whom the court directs that this section shall apply.

64Parties to proceedings under this Chapter

b

in default of such agreement, as may seem in all the circumstances just to any court before which the question of the existence or extent of the beneficial interest of either of the civil partners arises (whether in proceedings between them or in any other proceedings).

3

Subsection (2) is subject to any agreement (express or implied) between the civil partners to the contrary.

66Disputes between civil partners about property

1

In any question between the civil partners in a civil partnership as to title to or possession of property, either civil partner may apply to—

a

the High Court, or

b

such county court as may be prescribed by rules of court.

2

On such an application, the court may make such order with respect to the property as it thinks fit (including an order for the sale of the property).

3

Rules of court made for the purposes of this section may confer jurisdiction on county courts whatever the situation or value of the property in dispute.

67Applications under section 66 where property not in possession etc.

1

The right of a civil partner (“A”) to make an application under section 66 includes the right to make such an application where A claims that the other civil partner (“B”) has had in his possession or under his control—

a

money to which, or to a share of which, A was beneficially entitled, or

b

b

is property in respect of which an order could (apart from this section) have been made under section 66,

the court may (either instead of or as well as making an order in accordance with subsection (4)) make any order which it could (apart from this section) have made under section 66.

6

Any power of the court which is exercisable on an application under section 66 is exercisable in relation to an application made under that section as extended by this section.

68Applications under section 66 by former civil partners

1

This section applies where a civil partnership has been dissolved or annulled.

2

Subject to subsection (3), an application may be made under section 66 (including that section as extended by section 67) by either former civil partner despite the dissolution or annulment (and references in those sections to a civil partner are to be read accordingly).

3

The application must be made within the period of 3 years beginning with the date of the dissolution or annulment.

effected by a civil partner on his own life, and

b

expressed to be for the benefit of his civil partner, or of his children, or of his civil partner and children, or any of them,

as it applies in relation to a policy of assurance effected by a husband and expressed to be for the benefit of his wife, or of his children, or of his wife and children, or of any of them.

71Wills, administration of estates and family provision

Schedule 4 amends enactments relating to wills, administration of estates and family provision so that they apply in relation to civil partnerships as they apply in relation to marriage.

72Financial relief for civil partners and children of family

1

Schedule 5 makes provision for financial relief in connection with civil partnerships that corresponds to provision made for financial relief in connection with marriages by Part 2 of the Matrimonial Causes Act 1973 (c. 18).

2

Any rule of law under which any provision of Part 2 of the 1973 Act is interpreted as applying to dissolution of a marriage on the ground of presumed death is to be treated as applying (with any necessary modifications) in relation to the corresponding provision of Schedule 5.

3

Schedule 6 makes provision for financial relief in connection with civil partnerships that corresponds to provision made for financial relief in connection with marriages by the Domestic Proceedings and Magistrates’ Courts Act 1978 (c. 22).

4

Schedule 7 makes provision for financial relief in England and Wales after a civil partnership has been dissolved or annulled, or civil partners have been legally separated, in a country outside the British Islands.

Chapter 4Civil partnership agreements

73Civil partnership agreements unenforceable

1

A civil partnership agreement does not under the law of England and Wales have effect as a contract giving rise to legal rights.

2

No action lies in England and Wales for breach of a civil partnership agreement, whatever the law applicable to the agreement.

3

In this section and section 74 “civil partnership agreement” means an agreement between two people—

a

to register as civil partners of each other—

i

in England and Wales (under this Part),

ii

in Scotland (under Part 3),

iii

in Northern Ireland (under Part 4), or

iv

outside the United Kingdom under an Order in Council made under Chapter 1 of Part 5 (registration at British consulates etc. or by armed forces personnel), or

b

to enter into an overseas relationship.

4

This section applies in relation to civil partnership agreements whether entered into before or after this section comes into force, but does not affect any action commenced before it comes into force.

74Property where civil partnership agreement is terminated

1

This section applies if a civil partnership agreement is terminated.

2

Section 65 (contributions by civil partner to property improvement) applies, in relation to any property in which either or both of the parties to the agreement had a beneficial interest while the agreement was in force, as it applies in relation to property in which a civil partner has a beneficial interest.

3

Sections 66 and 67 (disputes between civil partners about property) apply to any dispute between or claim by one of the parties in relation to property in which either or both had a beneficial interest while the agreement was in force, as if the parties were civil partners of each other.

4

An application made under section 66 or 67 by virtue of subsection (3) must be made within 3 years of the termination of the agreement.

5

A party to a civil partnership agreement who makes a gift of property to the other party on the condition (express or implied) that it is to be returned if the agreement is terminated is not prevented from recovering the property merely because of his having terminated the agreement.

Chapter 5Children

75Parental responsibility, children of the family and relatives

1

Amend the Children Act 1989 (c. 41) (“the 1989 Act”) as follows.

2

In section 4A(1) (acquisition of parental responsibility by step-parent) after “is married to” insert “, or a civil partner of,”.

3

In section 105(1) (interpretation), for the definition of “child of the family” (in relation to the parties to a marriage) substitute—

“child of the family”, in relation to parties to a marriage, or to two people who are civil partners of each other, means—

a

a child of both of them, and

b

any other child, other than a child placed with them as foster parents by a local authority or voluntary organisation, who has been treated by both of them as a child of their family.

4

In the definition of “relative” in section 105(1), for “by affinity)” substitute “by marriage or civil partnership)”.

76Guardianship

In section 6 of the 1989 Act (guardians: revocation and disclaimer) after subsection (3A) insert—

3B

An appointment under section 5(3) or (4) (including one made in an unrevoked will or codicil) is revoked if the person appointed is the civil partner of the person who made the appointment and either—

a

an order of a court of civil jurisdiction in England and Wales dissolves or annuls the civil partnership, or

b

the civil partnership is dissolved or annulled and the dissolution or annulment is entitled to recognition in England and Wales by virtue of Chapter 3 of Part 5 of the Civil Partnership Act 2004,

unless a contrary intention appears by the appointment.

77Entitlement to apply for residence or contact order

In section 10(5) of the 1989 Act (persons entitled to apply for residence or contact order) after paragraph (a) insert—

aa

any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;

78Financial provision for children

1

Amend Schedule 1 to the 1989 Act (financial provision for children) as follows.

2

In paragraph 2(6) (meaning of “periodical payments order”) after paragraph (d) insert—

e

Part 1 or 9 of Schedule 5 to the Civil Partnership Act 2004 (financial relief in the High Court or a county court etc.);

f

Schedule 6 to the 2004 Act (financial relief in the magistrates’ courts etc.),

3

In paragraph 15(2) (person with whom a child lives or is to live) after “husband or wife” insert “or civil partner”.

4

For paragraph 16(2) (extended meaning of “parent”) substitute—

2

In this Schedule, except paragraphs 2 and 15, “parent” includes—

a

any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and

b

any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;

and for this purpose any reference to either parent or both parents shall be read as a reference to any parent of his and to all of his parents.

79Adoption

1

Amend the Adoption and Children Act 2002 (c. 38) as follows.

2

In section 21 (placement orders), in subsection (4)(c), after “child marries” insert “, forms a civil partnership”.

3

In section 47 (conditions for making adoption orders), after subsection (8) insert—

8A

An adoption order may not be made in relation to a person who is or has been a civil partner.

4

In section 51 (adoption by one person), in subsection (1), after “is not married” insert “or a civil partner”.

5

After section 51(3) insert—

3A

An adoption order may be made on the application of one person who has attained the age of 21 years and is a civil partner if the court is satisfied that—

a

the person’s civil partner cannot be found,

b

the civil partners have separated and are living apart, and the separation is likely to be permanent, or

c

the person’s civil partner is by reason of ill-health, whether physical or mental, incapable of making an application for an adoption order.

6

In section 64 (other provision to be made by regulations), in subsection (5) for “or marriage” substitute “, marriage or civil partnership”.

7

In section 74(1) (enactments for whose purposes section 67 does not apply), for paragraph (a) substitute—

a

section 1 of and Schedule 1 to the Marriage Act 1949 or Schedule 1 to the Civil Partnership Act 2004 (prohibited degrees of kindred and affinity),

8

In section 79 (connections between the register and birth records), in subsection (7)—

a

in paragraph (b), after “intends to be married” insert “or form a civil partnership”, and

b

for “the person whom the applicant intends to marry” substitute “the intended spouse or civil partner”.

9

In section 81 (Adoption Contact Register: supplementary), in subsection (2) for “or marriage” substitute “, marriage or civil partnership”.

10

In section 98 (pre-commencement adoptions: information), in subsection (7), in the definition of “relative” for “or marriage” substitute “, marriage or civil partnership”.

11

In section 144 (interpretation), in the definition of “relative” in subsection (1), after “by marriage” insert “or civil partnership”.

12

In section 144(4) (meaning of “couple”), after paragraph (a) insert—

aa

two people who are civil partners of each other, or

Chapter 6Miscellaneous

80False statements etc. with reference to civil partnerships

1

A person commits an offence if—

a

for the purpose of procuring the formation of a civil partnership, or a document mentioned in subsection (2), he—

i

makes or signs a declaration required under this Part or Part 5, or

ii

gives a notice or certificate so required,

knowing that the declaration, notice or certificate is false,

b

for the purpose of a record being made in any register relating to civil partnerships, he—

i

makes a statement as to any information which is required to be registered under this Part or Part 5, or

ii

causes such a statement to be made,

knowing that the statement is false,

c

he forbids the issue of a document mentioned in subsection (2)(a) or (b) by representing himself to be a person whose consent to a civil partnership between a child and another person is required under this Part or Part 5, knowing the representation to be false, or

d

with respect to a declaration made under paragraph 5(1) of Schedule 1 he makes a statement mentioned in paragraph 6 of that Schedule which he knows to be false in a material particular.

2

The documents are—

a

a civil partnership schedule or a Registrar General’s licence under Chapter 1;

b

a document required by an Order in Council under section 210 or 211 as an authority for two people to register as civil partners of each other;

c

a certificate of no impediment under section 240.

3

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

a

on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine (or both);

b

on summary conviction, to a fine not exceeding the statutory maximum.

4

The Perjury Act 1911 (c. 6) has effect as if this section were contained in it.

81Housing and tenancies

Schedule 8 amends certain enactments relating to housing and tenancies.

82Family homes and domestic violence

Schedule 9 amends Part 4 of the Family Law Act 1996 (c. 27) and related enactments so that they apply in relation to civil partnerships as they apply in relation to marriages.

83Fatal accidents claims

1

Amend the Fatal Accidents Act 1976 (c. 30) as follows.

2

In section 1(3) (meaning of “dependant” for purposes of right of action for wrongful act causing death), after paragraph (a) insert—

aa

the civil partner or former civil partner of the deceased;

3

In paragraph (b)(iii) of section 1(3), after “wife” insert “or civil partner”.

4

After paragraph (f) of section 1(3) insert—

fa

any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;

5

After section 1(4) insert—

4A

The reference to the former civil partner of the deceased in subsection (3)(aa) above includes a reference to a person whose civil partnership with the deceased has been annulled as well as a person whose civil partnership with the deceased has been dissolved.

6

In section 1(5)(a), for “by affinity” substitute “by marriage or civil partnership”.

7

In section 1A(2) (persons for whose benefit claim for bereavement damages may be made)—

a

in paragraph (a), after “wife or husband” insert “or civil partner”, and

b

in paragraph (b), after “was never married” insert “or a civil partner”.

8

In section 3 (assessment of damages), in subsection (4), after “wife” insert “or civil partner”.

84Evidence

1

Any enactment or rule of law relating to the giving of evidence by a spouse applies in relation to a civil partner as it applies in relation to the spouse.

2

Subsection (1) is subject to any specific amendment made by or under this Act which relates to the giving of evidence by a civil partner.

3

For the avoidance of doubt, in any such amendment, references to a person’s civil partner do not include a former civil partner.

4

References in subsections (1) and (2) to giving evidence are to giving evidence in any way (whether by supplying information, making discovery, producing documents or otherwise).

5

Any rule of law—

a

which is preserved by section 7(3) of the Civil Evidence Act 1995 (c. 38) or section 118(1) of the Criminal Justice Act 2003 (c. 44), and

b

under which in any proceedings evidence of reputation or family tradition is admissible for the purpose of proving or disproving the existence of a marriage,

is to be treated as applying in an equivalent way for the purpose of proving or disproving the existence of a civil partnership.

Part 3Civil partnership: Scotland

Chapter 1Formation and eligibility

85Formation of civil partnership by registration

1

For the purposes of section 1, two people are to be regarded as having registered as civil partners of each other once each of them has signed the civil partnership schedule, in the presence of—

a

each other,

b

two witnesses both of whom have attained the age of 16, and

c

the authorised registrar,

(all being present at a registration office or at a place agreed under section 93).

2

But the two people must be eligible to be so registered.

3

Subsection (1) applies regardless of whether subsection (4) is complied with.

4

After the civil partnership schedule has been signed under subsection (1), it must also be signed, in the presence of the civil partners and each other by—

a

each of the two witnesses, and

b

the authorised registrar.

87Appointment of authorised registrars

For the purpose of affording reasonable facilities throughout Scotland for registration as civil partners, the Registrar General—

a

is to appoint such number of district registrars as he thinks necessary, and

b

may, in respect of any district for which he has made an appointment under paragraph (a), appoint one or more assistant registrars,

as persons who may carry out such registration (in this Part referred to as “authorised registrars”).

88Notice of proposed civil partnership

1

In order to register as civil partners, each of the intended civil partners must submit to the district registrar a notice, in the prescribed form and accompanied by the prescribed fee, of intention to enter civil partnership (in this Part referred to as a “notice of proposed civil partnership”).

2

A notice submitted under subsection (1) must also be accompanied by—

a

the birth certificate of the person submitting it,

b

if that person has previously been married or in civil partnership and—

i

the marriage or civil partnership has been dissolved, a copy of the decree of divorce or dissolution, or

ii

the other party to that marriage or civil partnership has died, the death certificate of that other party, and

c

if that person has previously ostensibly been married or in civil partnership but decree of annulment has been obtained, a copy of that decree.

3

If a person is unable to submit a certificate or decree required by subsection (2) he may instead make a declaration to that effect, stating what the reasons are; and he must provide the district registrar with such—

a

information in respect of the matters to which the certificate or document would have related, and

b

documentary evidence in support of that information,

as the district registrar may require.

4

If a document submitted under subsection (2) or (3) is in a language other than English, the person submitting it must attach to the document a translation of it in English, certified by the translator as a correct translation.

5

A person submitting a notice under subsection (1) must make and sign the necessary declaration (the form for which must be included in any form prescribed for the notice).

6

The necessary declaration is a declaration that the person submitting the notice believes that the intended civil partners are eligible to be in civil partnership with each other.

89Civil partnership notice book

1

On receipt of a notice of proposed civil partnership, the district registrar is to enter in a book (to be known as “the civil partnership book”) supplied to him for that purpose by the Registrar General such particulars, extracted from the notice, as may be prescribed and the date of receipt by him of that notice.

2

The form and content of any page of that book is to be prescribed.

90Publicisation

1

Where notices of a proposed civil partnership are submitted to a district registrar, he must, as soon as practicable after the day on which they are submitted (or, if the two documents are not submitted on the same day, after the day on which the first is submitted), publicise the relevant information and send it to the Registrar General who must also publicise it.

2

“The relevant information” means—

a

the names of the intended civil partners, and

b

the date on which it is intended to register them as civil partners of each other, being a date more than 14 days after publicisation by the district registrar under subsection (1).

3

Paragraph (b) of subsection (2) is subject to section 91.

4

The manner in which and means by which relevant information is to be publicised are to be prescribed.

91Early registration

An authorised registrar who receives a request in writing from one or both of two intended civil partners that they should be registered as civil partners of each other on a date specified in the request (being a date 14 days or fewer after publicisation by the district registrar under subsection (1) of section 90) may, provided that he is authorised to do so by the Registrar General, fix that date as the date for registration; and if a date is so fixed, paragraph (b) of subsection (2) of that section is to be construed as if it were a reference to that date.

92Objections to registration

1

Any person may at any time before the registration in Scotland of two people as civil partners of each other submit in writing an objection to such registration to the district registrar.

2

But where the objection is that the intended civil partners are not eligible to be in civil partnership with each other because either is incapable of—

a

understanding the nature of civil partnership, or

b

validly consenting to its formation,

it shall be accompanied by a supporting certificate signed by a registered medical practitioner.

3

A person claiming that he may have reason to submit such an objection may, free of charge and at any time when the registration office at which a notice of proposed civil partnership to which the objection would relate is open for public business, inspect any relevant entry in the civil partnership book.

4

Where the district registrar receives an objection in accordance with subsection (1) he must—

a

in any case where he is satisfied that the objection relates to no more than a misdescription or inaccuracy in a notice submitted under section 88(1)—

i

notify the intended civil partners of the nature of the objection and make such enquiries into the matter mentioned in it as he thinks fit, and

ii

subject to the approval of the Registrar General, make any necessary correction to any document relating to the proposed civil partnership, or

b

in any other case—

i

at once notify the Registrar General of the objection, and

ii

pending consideration of the objection by the Registrar General, suspend the completion or issue of the civil partnership schedule in respect of the proposed civil partnership.

5

If the Registrar General is satisfied, on consideration of an objection of which he has received notification under subsection (4)(b)(i) that—

a

there is a legal impediment to registration, he must direct the district registrar not to register the intended civil partners and to notify them accordingly, or

b

there is no such impediment, he must inform the district registrar to that effect.

6

For the purposes of this section and section 94, there is a legal impediment to registration where the intended civil partners are not eligible to be in civil partnership with each other.

93Place of registration

1

Two people may be registered as civil partners of each other at a registration office or any other place which they and the local registration authority agree is to be the place of registration.

2

The place of registration may, if the approval of the Registrar General is obtained, be outwith the district of the authorised registrar carrying out the registration.

3

But the place must not be in religious premises, that is to say premises which—

a

are used solely or mainly for religious purposes, or

b

have been so used and have not subsequently been used solely or mainly for other purposes.

4

“Local registration authority” has the meaning given by section 5(3) of the 1965 Act.

94The civil partnership schedule

Where—

a

the district registrar has received a notice of proposed civil partnership in respect of each of the intended civil partners and—

i

is satisfied that there is no legal impediment to their registration as civil partners of each other, or

ii

as the case may be, is informed under section 92(5)(b) that there is no such impediment,

b

the 14 days mentioned in paragraph (b) of section 90(2) have expired (or as the case may be the date which, by virtue of section 91, that paragraph is to be construed as a reference to has been reached), and

c

the period which has elapsed since the day of receipt of the notices by him (or, if the two notices were not received on the same day, since the day of receipt of the later) does not exceed 3 months,

he is to complete a civil partnership schedule in the prescribed form.

95Further provision as to registration

1

Before the persons present sign in accordance with section 85 the authorised registrar is to require the intended civil partners to confirm that (to the best of their knowledge) the particulars set out in the civil partnership schedule are correct.

2

As soon as practicable after the civil partnership schedule has been signed, the authorised registrar must cause those particulars to be entered in a register (to be known as the “civil partnership register”) supplied to him for that purpose by the Registrar General.

3

The form and content of any page of that register is to be prescribed.

4

A fee payable by the intended civil partners for their registration as civil partners of each other is to be prescribed.

96Civil partnership with former spouse

1

Where an intended civil partner has a full gender recognition certificate issued under section 5(1) of the Gender Recognition Act 2004 (c. 7) and the other intended civil partner was the other party in the proceedings in which the certificate was issued, the procedures for their registration as civil partners of each other may—

a

if they so elect, and

b

if each of them submits a notice under section 88(1) within 30 days after the certificate is issued,

be expedited as follows.

2

The registration may take place on any of the 30 days immediately following—

a

that on which the notices are submitted, or

b

(if the two notices are not submitted on the same day) that on which the later is submitted.

3

And accordingly there are to be disregarded—

a

in section 90—

i

in subsection (2)(b), the words from “being” to the end, and

ii

subsection (3),

b

section 91, and

c

in section 94, paragraph (b).

97Certificates 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 England or Wales.

2

A may submit a notice of intention to register under section 88 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 section 92(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—

a

the circumstances are as mentioned in section 96(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 district registrar in deciding whether he is satisfied that there is no legal impediment to A registering as B’s civil partner.

98Application 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 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.

99Correction of errors in civil partnership register

1

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

Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (time limits) has effect for the purposes of this section as it has for the purposes of that section.

Chapter 3Occupancy rights and tenancies

Occupancy rights

101Occupancy 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 “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.

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 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 103(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 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—

“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 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.

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 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

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 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.

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.

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.

9

In this section “improvements” includes alterations and enlargement.

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 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 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 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

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,

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

104Exclusion 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 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 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.

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 103(3), and

b

where the family home—

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 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.

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,

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 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 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;

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 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 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.

8

Without prejudice to subsections (1) and (6), where both partners are entitled, or permitted by a third party, to occupy a family home, it is incompetent for one partner to bring an action of ejection from the family home against the other partner.

105Duration of orders under sections 103 and 104

1

The court may, on the application of either partner, vary or recall any order made by it under section 103 or 104.

2

Subject to subsection (3), any such order, unless previously so varied or recalled, ceases to have effect—

a

on the dissolution of the civil partnership,

b

subject to section 106(1), where there is an entitled and non-entitled partner, on the entitled partner ceasing to be an entitled partner in respect of the family home to which the order relates, or

c

where both partners are entitled, or permitted by a third party, to occupy the family home, on both partners ceasing to be so entitled or permitted.

3

Without prejudice to the generality of subsection (2), an order under section 103(3) or (4) which grants the possession or use of furniture and plenishings ceases to have effect if the furniture and plenishings cease to be permitted by a third party to be retained in the family home.

106Continued exercise of occupancy rights after dealing

1

Subject to subsection (3)—

a

the continued exercise of the rights conferred on a non-entitled partner by the provisions of this Chapter in respect of a family home are not prejudiced by reason only of any dealing of the entitled partner relating to that home, and

b

a third party is not by reason only of such a dealing entitled to occupy that home or any part of it.

2

In this section and section 107—

“dealing” includes the grant of a heritable security and the creation of a trust but does not include a conveyance under section 80 of the Lands Clauses Consolidation Act 1845 (c. 18);

“entitled partner” does not include a civil partner who, apart from the provisions of this Chapter—

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

is entitled to occupy a family home along with an individual who is not the other civil partner whether or not that individual has waived a right of occupation in favour of the civil partner so entitled,

(“non-entitled partner” being construed accordingly).

3

This section does not apply in any case where—

a

the non-entitled partner in writing either—

i

consents or has consented to the dealing (any consent being in such form as the Scottish Ministers may, by regulations made by statutory instrument, prescribe), or

ii

renounces or has renounced occupancy rights in relation to the family home or property to which the dealing relates,

b

the court has made an order under section 107 dispensing with the consent of the non-entitled partner to the dealing,

c

the dealing occurred, or implements a binding obligation entered into by the entitled partner, before the registration of the civil partnership,

d

the dealing occurred, or implements a binding obligation entered into, before the commencement of this section,

e

the dealing comprises a sale to a third party who has acted in good faith, if there is produced to the third party by the seller—

i

an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not, or were not at the time of the dealing, a family home in relation to which a civil partner of the seller has or had occupancy rights,

ii

a renunciation of occupancy rights or consent to the dealing which bears to have been properly made or given by the non-entitled partner, or

f

the entitled partner has permanently ceased to be entitled to occupy the family home, and at any time after that a continuous period of 5 years has elapsed during which the non-entitled partner has not occupied the family home.

4

For the purposes of subsection (3)(e), the time of the dealing, in the case of the sale of an interest in heritable property, is the date of delivery to the purchaser of the deed transferring title to that interest.

an application is made for an order under this section, and

b

an action is or has been raised by a non-entitled partner to enforce occupancy rights,

the action is to be sisted until the conclusion of the proceedings on the application.

108Interests of heritable creditors

1

The rights of a third party with an interest in the family home as a creditor under a secured loan in relation to the non-performance of any obligation under the loan are not prejudiced by reason only of the occupancy rights of the non-entitled partner; but where a non-entitled partner has or obtains occupation of a family home and—

a

the entitled partner is not in occupation, and

b

there is a third party with such an interest in the family home,

the court may, on the application of the third party, make an order requiring the non-entitled partner to make any payment due by the entitled partner in respect of the loan.

2

This section does not apply to secured loans in respect of which the security was granted prior to the commencement of section 13 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) unless the third party in granting the secured loan acted in good faith and there was produced to the third party by the entitled partner—

a

an affidavit sworn or affirmed by the entitled partner declaring that there is no non-entitled partner, or

b

a renunciation of occupancy rights or consent to the taking of the loan which bears to have been properly made or given by the non-entitled partner.

3

This section does not apply to secured loans in respect of which the security was granted after the commencement of section 13 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) unless the third party in granting the secured loan acted in good faith and there was produced to the third party by the grantor—

a

an affidavit sworn or affirmed by the grantor declaring that the security subjects are not or were not at the time of the granting of the security a family home in relation to which a civil partner of the grantor has or had occupancy rights, or

b

a renunciation of occupancy rights or consent to the granting of the security which bears to have been properly made or given by the non-entitled partner.

4

For the purposes of subsections (2) and (3), the time of granting a security, in the case of a heritable security, is the date of delivery of the deed creating the security.

whether the civil partner bringing the action offers or has offered to make available to the other civil partner any suitable alternative accommodation,

may refuse to grant decree in that action or may postpone the granting of decree for such period as it considers reasonable in the circumstances or may grant decree subject to such conditions as it may prescribe.

111Adjudication

1

Where a family home as regards which there is an entitled partner and a non-entitled partner is adjudged, the Court of Session, on the application of the non-entitled partner made within 40 days after the date of the decree of adjudication, may—

a

order the reduction of the decree, or

b

make such order as it thinks appropriate to protect the occupancy rights of the non-entitled partner,

if satisfied that the purpose of the diligence was wholly or mainly to defeat the occupancy rights of the non-entitled partner.

2

Section 106(2) applies in construing “entitled partner” and “non-entitled partner” for the purposes of subsection (1).

Transfer of tenancy

112Transfer of tenancy

1

The court may, on the application of a non-entitled partner, make an order transferring the tenancy of a family home to that partner and providing, subject to subsection (12), for the payment by the non-entitled partner to the entitled partner of such compensation as seems to it to be just and reasonable in all the circumstances of the case.

2

In an action—

a

for dissolution of a civil partnership, the Court of Session or the sheriff,

b

for declarator of nullity of a civil partnership, the Court of Session,

may, on granting decree or within such period as the court may specify on granting decree, make an order granting an application under subsection (1).

3

In determining whether to grant an application under subsection (1), the court is to have regard to all the circumstances of the case including the matters specified in paragraphs (a) to (e) of section 103(3) and the suitability of the applicant to become the tenant and the applicant’s capacity to perform the obligations under the lease of the family home.

4

The non-entitled partner is to serve a copy of an application under subsection (1) on the landlord and, before making an order under subsection (1), the court is to give the landlord an opportunity of being heard by it.

5

On the making of an order granting an application under subsection (1), the tenancy vests in the non-entitled partner without intimation to the landlord, subject to all the liabilities under the lease (other than liability for any arrears of rent for the period before the making of the order).

6

The arrears mentioned in subsection (5) are to remain the liability of the original entitled partner.

7

The clerk of court is to notify the landlord of the making of an order granting an application under subsection (1).

8

It is not competent for a non-entitled partner to apply for an order under subsection (1) where the family home—

a

is let to the entitled partner by the entitled partner’s employer as an incident of employment, and the lease is subject to a requirement that the entitled partner must reside there,

b

is or is part of an agricultural holding,

c

is on, or pertains to—

i

a croft,

ii

the subject of a cottar, or

iii

the holding of a landholder or of a statutory small tenant,

d

is let on a long lease, or

e

is part of the tenancy land of a tenant-at-will.

9

In subsection (8)—

“agricultural holding” has the same meaning as in section 1 of the Agricultural Holdings (Scotland) Act 1991 (c. 55),

“cottar” has the same meaning as in section 12(5) of the Crofters (Scotland) Act 1993 (c. 44),

“croft” has the same meaning as in that Act of 1993,

“holding”, in relation to a landholder and a statutory small tenant, “landholder” and “statutory small tenant” have the same meanings respectively as in sections 2(1), 2(2) and 32(1) of the Small Landholders (Scotland) Act 1911 (c. 49),

“long lease” has the same meaning as in section 28(1) of the Land Registration (Scotland) Act 1979 (c. 33), and

“tenant-at-will” has the same meaning as in section 20(8) of that Act of 1979.

10

Where both civil partners are joint or common tenants of a family home, the court may, on the application of one of the civil partners, make an order vesting the tenancy in that civil partner solely and providing, subject to subsection (12), for the payment by the applicant to the other partner of such compensation as seems just and reasonable in the circumstances of the case.

11

Subsections (2) to (9) apply for the purposes of an order under subsection (10) as they apply for the purposes of an order under subsection (1) but subject to the following modifications—

a

in subsection (3), for “tenant” there is substituted “sole tenant”;

b

in subsection (4), for “non-entitled” there is substituted “applicant”;

c

in subsection (5), for “non-entitled” there is substituted “applicant”,

d

in subsection (6), for “liability of the original entitled partner” there is substituted “joint and several liability of both partners”;

e

in subsection (8)—

i

for “a non-entitled” there is substituted “an applicant”,

ii

for paragraph (a) there is substituted—

a

is let to both partners by their employer as an incident of employment, and the lease is subject to a requirement that both partners must reside there;

iii

paragraphs (c) and (e) are omitted.

12

Where the family home is a Scottish secure tenancy within the meaning of the Housing (Scotland) Act 2001 (asp 10), no account is to be taken, in assessing the amount of any compensation to be awarded under subsection (1) or (10), of the loss, by virtue of the transfer of the tenancy of the home, of a right to purchase the home under Part 3 of the Housing (Scotland) Act 1987 (c. 26).

Chapter 4Interdicts

113Civil partners: competency of interdict

1

It shall not be incompetent for the Court of Session or the sheriff to entertain an application by one civil partner in a civil partnership for a relevant interdict by reason only that the civil partners are living together in civil partnership.

2

In subsection (1) and in section 114, “relevant interdict” means an interdict, including an interim interdict, which—

a

restrains or prohibits any conduct of one civil partner towards the other civil partner or a child of the family, or

b

prohibits a civil partner from entering or remaining in a family home or in a specified area in the vicinity of a family home.

114Attachment of powers of arrest to relevant interdicts

1

Subject to subsection (2), the court is, on the application of an applicant civil partner, to attach a power of arrest—

a

to any relevant interdict which is ancillary to an exclusion order (including an interim order under section 104(6));

b

to any other relevant interdict where the non-applicant civil partner has had the opportunity of being heard by or represented before the court, unless it appears to the court that in all the circumstances of the case such a power is unnecessary.

2

The court may attach a power of arrest to an interdict by virtue of subsection (1) only if satisfied that attaching the power would not result in the non-applicant civil partner being subject, in relation to the interdict, to a power of arrest under both this Chapter and the Protection from Abuse (Scotland) Act 2001 (asp 14).

3

A power of arrest attached to an interdict by virtue of subsection (1) does not have effect until such interdict together with the attached power of arrest is served on the non-applicant civil partner; and such a power of arrest, unless previously recalled, ceases to have effect upon the dissolution of the civil partnership.

4

If, by virtue of subsection (1), a power of arrest is attached to an interdict, a constable may arrest without warrant the non-applicant civil partner if the constable has reasonable cause for suspecting that civil partner of being in breach of the interdict.

5

If, by virtue of subsection (1), a power of arrest is attached to an interdict, the applicant civil partner is, as soon as possible after service of the interdict, to ensure that there is delivered—

a

refuse to liberate that person.

2

For such refusal and the detention of that person until appearance in court by virtue of section 116(2) or of any provision of the Criminal Procedure (Scotland) Act 1975 (c. 21) the officer is not to be subjected to any claim whatsoever.

3

Where a person arrested under section 114(4) is liberated under subsection (1), the facts and circumstances which gave rise to the arrest are to be reported forthwith to the procurator fiscal who, if he decides to take no criminal proceedings in respect of those facts and circumstances, is at the earliest opportunity to take all reasonable steps to intimate his decision to the persons mentioned in paragraphs (a) and (b) of section 116(5).

116Procedure after arrest

1

The provisions of this section apply only where—

a

the non-applicant civil partner has not been liberated under section 115(1), and

b

the procurator fiscal decides that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.

2

The non-applicant civil partner who has been arrested under section 114(4) is wherever practicable to be brought before the sheriff sitting as a court of summary criminal jurisdiction for the district in which that civil partner was arrested not later than in the course of the first day after the arrest, such day not being a Saturday, a Sunday or a court holiday prescribed for that court under section 8 of the Criminal Procedure (Scotland) Act 1995 (c. 46).

3

Nothing in subsection (2) prevents the non-applicant civil partner being brought before the sheriff on a Saturday, a Sunday or such a court holiday when the sheriff is, in pursuance of that section of that Act, sitting for the disposal of criminal business.

4

Subsections (1) to (3) of section 15 of that Act (intimation to a named person) apply to a non-applicant civil partner who has been arrested under section 114(4) as they apply to a person who has been arrested in respect of any offence.

5

The procurator fiscal is at the earliest opportunity, and in any event prior to the non-applicant civil partner being brought before the sheriff under subsection (2), to take all reasonable steps to intimate—

a

to the applicant civil partner, and

b

to the solicitor who acted for that civil partner when the interdict was granted or to any other solicitor who the procurator fiscal has reason to believe acts for the time being for that civil partner,

that the criminal proceedings referred to in subsection (1) will not be taken.

6

On the non-applicant civil partner being brought before the sheriff under subsection (2) (as read with subsection (3)), the following procedures apply—

a

the procurator fiscal is to present to the court a petition containing—

i

a statement of the particulars of the non-applicant civil partner,

ii

a statement of the facts and circumstances which gave rise to the arrest, and

iii

a request that the non-applicant civil partner be detained for a further period not exceeding 2 days,

b

if it appears to the sheriff that—

i

the statement referred to in paragraph (a)(ii) ostensibly discloses a breach of interdict by the non-applicant civil partner,

ii

proceedings for breach of interdict will be taken, and

iii

there is a substantial risk of violence by the non-applicant civil partner against the applicant civil partner or any child of the family,

he may order the non-applicant civil partner to be detained for a further period not exceeding 2 days, and

c

in any case to which paragraph (b) does not apply, the non-applicant civil partner is, unless in custody in respect of any other matter, to be released from custody.

7

In computing the period of 2 days referred to in paragraphs (a) and (b) of subsection (6), no account is to be taken of a Saturday or Sunday or of any holiday in the court in which the proceedings for breach of interdict will require to be raised.

Chapter 5Dissolution, separation and nullity

ii

the steps which must be taken to indicate such consent, and

b

as to the manner in which the defender in such an action is to indicate such consent, and any withdrawal of such consent,

and where the defender has indicated (and not withdrawn) such consent in the prescribed manner, that indication is sufficient evidence of such consent.

5

Provision is to be made by act of sederunt for the purpose of ensuring that, where in an action for the dissolution of a civil partnership the defender is suffering from mental illness, the court appoints a curator ad litem to the defender.

6

In an action to which paragraph (d) of subsection (3) relates, even though irretrievable breakdown of the civil partnership is established the court is not bound to grant decree if in its opinion to do so would result in grave financial hardship to the defender.

7

For the purposes of subsection (6), hardship includes the loss of the chance of acquiring any benefit.

8

In an action for dissolution of a civil partnership the standard of proof required to establish the ground of action is on balance of probability.

118Encouragement of reconciliation

1

At any time before granting decree in an action by virtue of paragraph (a) of section 117(2) for dissolution of a civil partnership, if it appears to the court that there is a reasonable prospect of a reconciliation between the civil partners it must continue, or further continue, the action for such period as it thinks proper to enable attempts to be made to effect such a reconciliation.

2

If during any such continuation the civil partners cohabit with one another, no account is to be taken of such cohabitation for the purposes of that action.

119Effect of resumption of cohabitation

1

In an action to which paragraph (b) of section 117(3) relates, the irretrievable breakdown of a civil partnership is not to be taken to be established if, after the expiry of the period mentioned in that paragraph—

a

the pursuer resumes cohabitation with the defender, and

b

3

The register is to be in such form as may be prescribed.

4

c

subsection (8)(b) and (c).

10

In subsections (8)(a) and (9)(b) “the relevant law” means the law of the country or territory where the overseas relationship was registered (including its rules of private international law).

11

For the purposes of subsections (8) and (9)(b) and (c), references in sections 50 and 51 or (as the case may be) sections 174 and 175 to the formation of the civil partnership are to be read as references to the registration of the overseas relationship.

Financial provision after overseas proceedings

125Financial provision after overseas dissolution or annulment

Schedule 11 relates to applications for financial provision in Scotland after a civil partnership has been dissolved or annulled in a country or territory outside the British Islands.

Chapter 6Miscellaneous and interpretation

Miscellaneous

126Regulations

1

In this Chapter and in Chapters 2 and 5, “prescribed” means prescribed by regulations made by the Registrar General.

2

Regulations so made may make provision (including provision as to fees) supplementing, in respect of the provision of services by or on behalf of the Registrar General or by local registration authorities (as defined by section 5(3) of the 1965 Act), the provisions of Chapter 2 of this Part.

3

Any power to make regulations under subsection (1) or (2) is exercisable by statutory instrument; and no such regulations are to be made except with the approval of the Scottish Ministers.

4

A statutory instrument containing regulations under subsection (1) or (2), or regulations under section 106(3)(a)(i), is subject to annulment in pursuance of a resolution of the Scottish Parliament.

127Attachment

Where an attachment has been executed of furniture and plenishings of which the debtor’s civil partner has the possession or use by virtue of an order under section 103(3) or (4), the sheriff, on the application of that civil partner made within 40 days after the execution of the attachment, may—

a

declare the attachment null, or

b

make such order as he thinks appropriate to protect such possession or use by that civil partner,

if satisfied that the purpose of the attachment was wholly or mainly to prevent such possession or use.

128Promise or agreement to enter into civil partnership

No promise or agreement to enter into civil partnership creates any rights or obligations under the law of Scotland; and no action for breach of such a promise or agreement may be brought in any court in Scotland, whatever the law applicable to the promise or agreement.

129Lord Advocate as party to action for nullity or dissolution of civil partnership

1

The Lord Advocate may enter appearance as a party in any action—

a

of declarator of nullity of a civil partnership, or

b

for dissolution of a civil partnership,

and he may lead such proof and maintain such pleas as he thinks fit.

2

The Court, whenever it considers it necessary for the proper disposal of any such action, is to direct that the action be brought to the notice of the Lord Advocate for him to determine whether to enter appearance.

3

No expenses are claimable by or against the Lord Advocate in any such action in which he enters appearance.

130Civil partner of accused a competent witness

1

The civil partner of an accused may be called as a witness—

a

by the accused, or

b

without the consent of the accused, by a co-accused or by the prosecutor.

2

But the civil partner is not a compellable witness for the co-accused or for the prosecutor and is not compelled to disclose any communication made, while the civil partnership subsists, between the civil partners.

3

The failure of a civil partner of an accused to give evidence is not to be commented on by the defence or the prosecutor.

131Succession: legal rights arising by virtue of civil partnership

1

Where a person dies survived by a civil partner then, unless the circumstance is as mentioned in subsection (2), the civil partner has right to half of the moveable net estate belonging to the deceased at the time of death.

2

That circumstance is that the person is also survived by issue, in which case the civil partner has right to a third of that moveable net estate and those issue have right to another third of it.

3

In this section—

“issue” means issue however remote, and

“net estate” has the meaning given by section 36(1) (interpretation) of the Succession (Scotland) Act 1964 (c. 41).

4

Every testamentary disposition executed after the commencement of this section by which provision is made in favour of the civil partner of the testator and which does not contain a declaration to the effect that the provision so made is in full and final satisfaction of the right to any share in the testator’s estate to which the civil partner is entitled by virtue of subsection (1) or (2), has effect (unless the disposition contains an express provision to the contrary) as if it contained such a declaration.

5

In section 36(1) of the Succession (Scotland) Act 1964 (c. 41), in the definition of “legal rights”, for “and legitim” substitute “legitim and rights under section 131 of the Civil Partnership Act 2004”.

132Assurance policies

Section 2 of the Married Women’s Policies of Assurance (Scotland) Act 1880 (c. 26) (which provides that a policy of assurance may be effected in trust for a person’s spouse, children or spouse and children) applies in relation to a policy of assurance—

a

effected by a civil partner (in this section referred to as “A”) on A’s own life, and

b

expressed upon the face of it to be for the benefit of A’s civil partner, or of A’s children, or of A’s civil partner and children,

as it applies in relation to a policy of assurance effected as, and expressed upon the face of it to be for such benefit as, is mentioned in that section.

133Council Tax: liability of civil partners

After section 77 of the Local Government Finance Act 1992 (c. 14), insert—

77ALiability of civil partners

1

Where—

a

a person who is liable to pay council tax in respect of any chargeable dwelling and any day is in civil partnership with another person or living with another person in a relationship which has the characteristics of the relationship between civil partners; and

b

that other person is also a resident of the dwelling on that day but would not, apart from this section, be so liable,

those persons shall be jointly and severally liable to pay the council tax payable in respect of that dwelling and that day.

2

Subsection (1) above shall not apply as respects any day on which the other person there mentioned falls to be disregarded for the purposes of discount—

a

by virtue of paragraph 2 of Schedule 1 to this Act (the severely mentally impaired); or

b

being a student, by virtue of paragraph 4 of that Schedule.

134General provisions as to fees

1

Subject to such exceptions as may be prescribed, a district registrar may refuse to comply with any application voluntarily made to him under this Part until the appropriate fee, if any, provided for by or under this Part is paid to him; and any such fee, if not prepaid, is recoverable by the registrar to whom it is payable.

2

Circumstances, of hardship or otherwise, may be prescribed in which fees provided for by or under this Part may be remitted by the Registrar General.

Interpretation

135Interpretation of this Part

In this Part, unless the context otherwise requires—

“the 1965 Act” means the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49);

“authorised registrar” has the meaning given by section 87;

“caravan” means a caravan which is mobile or affixed to land;

“child of the family” has the meaning given by section 101(7);

“civil partnership book” has the meaning given by section 89;

“civil partnership register” has the meaning given by section 95(2);

“civil partnership schedule” has the meaning given by section 94;

“the court” means the Court of Session or the sheriff;

“district” means a registration district as defined by section 5(1) of the 1965 Act;

“district registrar” has the meaning given by section 7(12) of the 1965 Act;

“entitled partner” and “non-entitled partner”, subject to sections 106(2) and 111(2), have the meanings respectively assigned to them by section 101(1);

“exclusion order” has the meaning given by section 104(1);

“family” has the meaning given by section 101(7);

“family home” means any house, caravan, houseboat or other structure which has been provided or has been made available by one or both of the civil partners as, or has become, a family residence and includes any garden or other ground or building attached to, and usually occupied with, or otherwise required for the amenity or convenience of, the house, caravan, houseboat or other structure but does not include a residence provided or made available by one civil partner for that civil partner to reside in, whether with any child of the family or not, separately from the other civil partner;

“furniture and plenishings” means any article situated in a family home of civil partners which—

is owned or hired by either civil partner or is being acquired by either civil partner under a hire-purchase agreement or conditional sale agreement, and

is reasonably necessary to enable the home to be used as a family residence,

but does not include any vehicle, caravan or houseboat or such other structure as is mentioned in the definition of “family home”;

“notice of proposed civil partnership” has the meaning given by section 88(1);

“occupancy rights” means the rights conferred by section 101(1);

“Registrar General” means the Registrar General of Births, Deaths and Marriages for Scotland;

“registration office” means a registration office provided under section 8(1) of the 1965 Act;

“tenant” includes—

a sub-tenant,

a statutory tenant as defined in section 3 of the Rent (Scotland) Act 1984 (c. 58), and

a statutory assured tenant as defined in section 16(1) of the Housing (Scotland) Act 1988 (c. 43),

and “tenancy” is to be construed accordingly.

136The expression “relative” in the 1965 Act

In section 56(1) of the 1965 Act (interpretation), in the definition of “relative”, at the end insert “, a civil partner and anyone related to the civil partner of the person as regards whom the expression is being construed”.

Part 4Civil partnership: Northern Ireland

Chapter 1Registration

Formation and eligibility

137Formation of civil partnership by registration

1

For the purposes of section 1, two people are to be regarded as having registered as civil partners of each other once each of them has signed the civil partnership schedule in the presence of—

a

each other,

b

two witnesses both of whom profess to be 16 or over, and

c

the registrar.

2

Subsection (1) applies regardless of whether subsections (3) and (4) are complied with.

3

After the civil partnership schedule has been signed under subsection (1), it must also be signed, in the presence of the civil partners and each other, by—

a

each of the two witnesses, and

b

the registrar.

4

After the witnesses and the registrar have signed the civil partnership schedule, the registrar must cause the registration of the civil partnership to be recorded as soon as practicable.

5

No religious service is to be used while the registrar is officiating at the signing of a civil partnership schedule.

138Eligibility

1

Two people are not eligible to register as civil partners of each other if—

a

they are not of the same sex,

b

either of them is already a civil partner or lawfully married,

c

either of them is under 16,

d

they are within prohibited degrees of relationship, or

e

either of them is incapable of understanding the nature of civil partnership.

2

Schedule 12 contains provisions for determining when two people are within prohibited degrees of relationship.

Preliminaries to registration

139Notice of proposed civil partnership

1

For two people to register as civil partners of each other under this Chapter, each of them must give the registrar a notice of proposed civil partnership (a “civil partnership notice”).

2

A civil partnership notice must be—

a

in the prescribed form, and

b

accompanied by the prescribed fee and such documents and other information as may be prescribed.

3

In prescribed cases a civil partnership notice must be given to the registrar by each party in person.

140Civil partnership notice book and list of intended civil partnerships

1

The registrar must keep a record of—

a

such particulars as may be prescribed, taken from each civil partnership notice received by him, and

b

the date on which each civil partnership notice is received by him.

2

In this Chapter “civil partnership notice book” means the record kept under subsection (1).

3

The registrar must, in accordance with any guidance issued by the Registrar General, place on public display a list containing in relation to each proposed civil partnership in respect of which the registrar has received a civil partnership notice—

a

the names of the proposed civil partners, and

b

the date on which it is intended to register them as civil partners of each other.

4

As soon as practicable after the date mentioned in subsection (3) the registrar must remove from the list the names and the date mentioned in that subsection.

5

Any person claiming that he may have reason to make an objection to a proposed civil partnership may inspect any entry relating to the civil partnership in the civil partnership notice book without charge.

141Power to require evidence of name etc.

1

A registrar to whom a civil partnership notice is given may require the person giving it to provide him with specified evidence relating to each proposed civil partner.

2

Such a requirement may be imposed at any time before the registrar issues the civil partnership schedule under section 143.

3

“Specified evidence”, in relation to a person, means such evidence as may be specified in guidance issued by the Registrar General—

a

of the person’s name and surname,

b

of the person’s age,

c

as to whether the person is or has been a civil partner or lawfully married, and

d

of the person’s nationality.

he is satisfied that there is no legal impediment to the formation of the civil partnership, or

b

the Registrar General has directed him under section 142(6) to proceed under this section.

5

In this section and Schedule 13 “young person” means a person who is under 18.

Supplementary

is made in the prescribed form by the responsible authority not more than 21 days before the date on which the civil partnership notice is given,

b

identifies the establishment where the person is detained, and

c

states that the responsible authority has no objection to that establishment being the place of registration for that civil partnership.

3

In subsection (2) “responsible authority” means—

a

if the person named in the statement is detained in a prison, the governor or other officer in charge of that prison;

b

if the person named in the statement is detained in a hospital or special accommodation, the Health and Social Services Board administering that hospital or the Department of Health, Social Services and Public Safety, respectively;

c

if the person named in the statement is detained in a private hospital, the person in charge of that hospital.

4

After the registrar receives a civil partnership notice accompanied by a statement to which subsection (2) applies, he must notify the Registrar General and not complete a civil partnership schedule unless the Registrar General directs him to proceed under section 143.

5

In this section—

a

“prison” includes a remand centre and a young offenders centre, and

b

“hospital”, “patient”, “private hospital” and “special accommodation” have the same meaning as in the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)).

150Certificates 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 Northern Ireland but the other (“B”) resides in England or Wales.

2

A may give a civil partnership notice under section 139 as if A and B intended to register as civil partners under this Chapter.

3

If the registrar is satisfied that there is no legal impediment (in the sense given in section 142(7)) to A registering as B’s civil partner, he must issue a certificate in the prescribed form that there is not known to be any such impediment.

4

But the certificate may not be issued before the expiration of such period from the date recorded under section 140(3)(b) as may be prescribed.

5

Any person may, at any time before a certificate is issued under subsection (3), submit to the registrar an objection in writing to its issue.

6

Any objection made under subsection (5) must be taken into account by the registrar in deciding whether he is satisfied that there is no legal impediment to A registering as B’s civil partner.

151Registration districts and registration authorities

1

Each local government district shall be a registration district and the district council shall be the local registration authority for the purposes of this Part.

2

A district council shall, in the exercise of functions conferred on it as a local registration authority—

a

act as agent for the Department of Finance and Personnel, and

b

act in accordance with such directions as that Department may give to the council.

3

Any expenditure to be incurred by the district council in the exercise of functions conferred on it as a local registration authority shall be subject to the approval of the Registrar General.

4

The Department of Finance and Personnel shall retain or, as the case may be, defray in respect of each financial year the amount of the difference between—

a

the aggregate of the amounts of salaries, pension provision and other expenses payable by virtue of this Part in respect of any registration district, and

b

the aggregate of the amounts received in that registration district under any statutory provision or otherwise by way of fees or other expenses.

152Registrars and other staff

1

A local registration authority shall, with the approval of the Registrar General, appoint—

a

a registrar of civil partnerships, and

b

one or more deputy registrars of civil partnerships.

2

A person holding an appointment under subsection (1) may with the approval of, and shall at the direction of, the Registrar General be removed from his office of registrar or deputy registrar by the local registration authority.

3

A local registration authority shall, at the direction of the Registrar General, appoint additional persons to register civil partnerships and carry out other functions for the purposes of this Part.

4

A person shall not be appointed under subsection (1) or (3) if he is under the age of 21.

5

Regulations under section 159 may confer additional functions on a person holding an appointment under subsection (1).

6

A person holding an appointment under subsection (1) shall, in exercising his functions under this Part or any other statutory provision, be subject to such instructions or directions as the Registrar General may give.

153Records and documents to be sent to Registrar General

If the Registrar General directs him to do so, a person must send to the Registrar General any record or document relating to civil partnerships in accordance with the Registrar General’s directions.

154Annual report

1

The Registrar General must send to the Department of Finance and Personnel an annual report of the number of civil partnerships registered during each year, together with such other information as he considers it appropriate to include.

2

The Department of Finance and Personnel must lay the report before the Northern Ireland Assembly.

155Searches

1

The Registrar General must provide indexes to civil partnership registration records in his custody for inspection by the public.

2

A registrar must provide indexes to civil partnership registration records in his custody for inspection by the public.

3

Any person may, on payment of the prescribed fee—

a

search any index mentioned in subsection (1) or (2), and

b

require the Registrar General or, as the case may be, the registrar to give him a document in the prescribed form relating to the registration of a civil partnership.

4

The Registrar General must cause any document given by him under this section or section 156 to be stamped with the seal of the General Register Office.

5

Judicial notice shall be taken of any document so stamped.

156Proof of civil partnership for purposes of certain statutory provisions

1

Where the civil partnership of a person is required to be proved for the purposes of any prescribed statutory provision, any person—

a

on application to the Registrar General, and

b

on payment of the prescribed fee,

is entitled to a document in the prescribed form relating to the registration of the civil partnership of that person.

2

An application under subsection (1) must be in such form and accompanied by such particulars as the Registrar General may require.

3

The Registrar General or any registrar may, on payment of the prescribed fee, issue such information (including a document as mentioned in subsection (1)) as may be required for the purposes of any prescribed statutory provision.

157Fees

1

“civil partnership notice” means a notice of proposed civil partnership under section 139;

“civil partnership notice book” has the meaning given by section 140;

“prescribed”, except in relation to a fee, means prescribed by regulations under section 159 and, in relation to a fee, means prescribed by order under section 157;

“registrar” means such person appointed under section 152(1)(a) or (b) or (3) as may be prescribed;

“Registrar General” means the Registrar General for Northern Ireland;

“statutory provision” has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (1954 c. 33 (N.I.)).

Chapter 2Dissolution, nullity and other proceedings

Introduction

161Powers to make orders and effect of orders

1

The court may, in accordance with this Chapter—

a

make an order (a “dissolution order”) which dissolves a civil partnership on the ground that it has broken down irretrievably;

b

make an order (a “nullity order”) which annuls a civil partnership which is void or voidable;

c

make an order (a “presumption of death order”) which dissolves a civil partnership on the ground that one of the civil partners is presumed to be dead;

d

make an order (a “separation order”) which provides for the separation of the civil partners.

2

Every dissolution, nullity or presumption of death order—

a

is, in the first instance, a conditional order, and

b

may not be made final before the end of the prescribed period (see section 162);

and any reference in this Chapter to a conditional order is to be read accordingly.

3

4

In this Chapter “the court” has the meaning given by section 188.

5

This Chapter is subject to section 219 and sections 228 to 232 (jurisdiction of the court).

162The period before conditional orders may be made final

is subject to section 172(4) (protection for respondent in separation cases) and section 186 (restrictions on making of orders affecting children).

165Time bar on applications for dissolution orders

1

No application for a dissolution order may be made to the court before the end of the period of 2 years from the date of the formation of the civil partnership.

2

Nothing in this section prevents the making of an application based on matters which occurred before the end of the 2 year period.

166Attempts at reconciliation of civil partners

1

This section applies in relation to cases where an application is made for a dissolution or separation order.

2

3

If during any such adjournment the parties resume living with each other in the same household, no account is to be taken of the fact for the purposes of the proceedings.

4

The power to adjourn under subsection (2) is additional to any other power of adjournment.

167Consideration by the court of certain agreements or arrangements

b

any facts alleged by the respondent.

3

4

But if the court is satisfied of any of those facts, it must make a dissolution order unless it is satisfied on all the evidence that the civil partnership has not broken down irretrievably.

5

The facts referred to in subsections (3) and (4) are—

a

that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;

b

that—

i

the applicant and the respondent have lived apart for a continuous period of at least 2 years immediately preceding the making of the application (“2 years’ separation”), and

ii

the respondent consents to a dissolution order being made;

c

that the applicant and the respondent have lived apart for a continuous period of at least 5 years immediately preceding the making of the application (“5 years’ separation”);

d

that the respondent has deserted the applicant for a continuous period of at least 2 years immediately preceding the making of the application.

6

The court must not make a dissolution order without considering the oral testimony of the applicant unless for special reasons it orders that such testimony be dispensed with.

169Supplemental provisions as to facts raising presumption of breakdown

1

Subsection (2) applies if—

a

in any proceedings for a dissolution order the applicant alleges, in reliance on section 168(5)(a), that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent, but

any two or more periods not exceeding 6 months in all,

during which the civil partners resumed living together.

7

But no period during which the civil partners have lived with each other counts as part of the period during which the civil partners have lived apart or as part of the period of desertion.

8

For the purposes of section 168(5)(b) and (c) and this section civil partners are to be treated as living apart unless they are living with each other in the same household, and references in this section to civil partners living with each other are to be read as references to their living with each other in the same household.

170Dissolution order not precluded by previous separation order etc.

1

Subsections (2) and (3) apply if any of the following orders has been made in relation to a civil partnership—

a

a separation order;

b

an order under Schedule 16 (financial relief in court of summary jurisdiction etc.);

c

an occupation order under Article 11 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6) (occupation orders));

d

an order under Article 15 of that Order (orders where neither civil partner entitled to occupy the home).

2

Nothing prevents—

a

either civil partner from applying for a dissolution order, or

b

the court from making a dissolution order,

on the same facts, or substantially the same facts, as those proved in support of the making of the order referred to in subsection (1).

3

On the application for the dissolution order, the court—

a

may treat the order referred to in subsection (1) as sufficient proof of any desertion or other fact by reference to which it was made, but

b

must not make the dissolution order without receiving evidence from the applicant.

4

2

Subsection (3) applies if—

a

the making of a dissolution order is opposed under this section,

b

c

apart from this section, the court would make a dissolution order.

3

The court must—

a

consider all the circumstances, including the conduct of the civil partners and the interests of the civil partners and of any children or other persons concerned, and

b

if it is of the opinion that the ground mentioned in subsection (1) is made out, dismiss the application for the dissolution order.

4

“Hardship” includes the loss of the chance of acquiring any benefit which the respondent might acquire if the civil partnership were not dissolved.

172Proceedings before order made final: protection for respondent in separation cases

1

The court may, on an application made by the respondent, rescind a conditional dissolution order if—

a

it made the order on the basis of a finding that the applicant was entitled to rely on the fact of 2 years’ separation coupled with the respondent’s consent to a dissolution order being made,

b

it made no such finding as to any other fact mentioned in section 168(5), and

c

it is satisfied that the applicant misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding to give his consent.

2

Subsections (3) to (5) apply if—

a

the respondent to an application for a dissolution order in which the applicant alleged—

i

2 years’ separation coupled with the respondent’s consent to a dissolution order being made, or

ii

7

The final order is voidable at the instance of the respondent or of the court but no person is entitled to challenge the validity of the order after it is made final on the ground that subsections (4) and (5) were not satisfied.

8

If the court refuses to make an order under subsection (4), it must, on an application by the applicant, make an order declaring that it is not satisfied as mentioned in that subsection.

Nullity

173Grounds on which civil partnership is void

Where two people register as civil partners of each other in Northern Ireland, the civil partnership is void if—

a

at the time when they do so, they are not eligible to register as civil partners of each other under Chapter 1 (see section 138), or

b

at the time when they do so they both know—

i

that due notice of proposed civil partnership has not been given,

ii

that the civil partnership schedule has not been duly issued,

iii

that the place of registration is a place other than that specified in the civil partnership schedule, or

iv

that a registrar is not present.

174Grounds on which civil partnership is voidable

1

Where two people register as civil partners of each other in Northern Ireland, the civil partnership is voidable if—

a

either of them did not validly consent to its formation (whether as a result of duress, mistake, unsoundness of mind or otherwise);

b

c

at the time of its formation, the respondent was pregnant by some person other than the applicant;

d

an interim gender recognition certificate under the Gender Recognition Act 2004 (c. 7) has, after the time of its formation, been issued to either civil partner;

e

the respondent is a person whose gender at the time of its formation had become the acquired gender under the 2004 Act.

2

In this section and section 175 “mental disorder” has the same meaning as in the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)).

175Bars to relief where civil partnership is voidable

1

The court must not make a nullity order on the ground that a civil partnership is voidable if the respondent satisfies the court—

that any person whose consent to the civil partnership was required by section 145 (parental etc. consent) had given his consent;

b

that the registrar was properly appointed under section 152;

and no evidence is to be given to prove the contrary in any proceedings touching the validity of the civil partnership.

a declaration that the civil partnership was at its inception a valid civil partnership;

b

a declaration that the civil partnership subsisted on a date specified in the application;

c

a declaration that the civil partnership did not subsist on a date so specified;

d

a declaration that the validity of a dissolution, annulment or legal separation obtained in any country outside Northern Ireland in respect of the civil partnership is entitled to recognition in Northern Ireland;

e

a declaration that the validity of a dissolution, annulment or legal separation so obtained in respect of the civil partnership is not entitled to recognition in Northern Ireland.

2

Where an application under subsection (1) is made to the court by a person other than a civil partner in the civil partnership to which the application relates, the court must refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of that application.

182General provisions as to making and effect of declarations

1

4

The court hearing an application under section 181 may direct that the whole or any part of the proceedings must be heard in private.

5

An application for a direction under subsection (4) must be heard in private unless the court otherwise directs.

6

Family proceedings rules must make provision for an appeal to the Court of Appeal from any declaration made by a county court under section 181 or from the dismissal of an application under that section, upon a point of law, a question of fact or the admission or rejection of any evidence.

7

Subsection (6) does not affect Article 61 of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)) (cases stated).

8

In this section “family proceedings rules” means family proceedings rules made under Article 12 of the Family Law (Northern Ireland) Order 1993 (S.I. 1993/1576 (N.I. 6)).

General provisions

185Relief for respondent in dissolution proceedings

1

If in any proceedings for a dissolution or separation order the respondent alleges and proves any such fact as is mentioned in section 168(5)(a), (b), (c) or (d) the court may give to the respondent the relief to which he would have been entitled if he had made an application seeking that relief.

2

When applying subsection (1), treat—

a

the respondent as the applicant, and

b

the applicant as the respondent,

for the purposes of section 168(5).

186Restrictions on making of orders affecting children

1

In any proceedings for a dissolution, nullity or separation order, the court must consider—

a

whether there are any children of the family to whom this section applies, and

b

2

c

the persons who are to be parties to proceedings on an application under section 181.

2

Rules of court made under this section may make different provision for different cases.

3 The court

188The court

1

In this Chapter “the court” means—

a

the High Court, or

b

where an order made by the Lord Chancellor is in force designating a county court sitting for any division as a civil partnership proceedings county court, a county court sitting for that division.

2

Subsection (1) is subject to the following provisions of this section.

3

Subsection (1) does not apply where the context shows that “the court” means some particular court.

4

The Lord Chancellor may make an order such as is mentioned in subsection (1)(b).

5

In this Part “civil partnership proceedings county court” means, where an order made by the Lord Chancellor under subsection (4) is in force designating a county court sitting for any division as a civil partnership proceedings county court, a county court sitting for that division.

6

Except to the extent that rules of court otherwise provide, the jurisdiction conferred by virtue of this section and section 190 on a civil partnership proceedings county court is exercisable throughout Northern Ireland, but rules of court may provide for a civil partnership cause (within the meaning of section 190) pending in one such court to be heard and determined—

a

partly in that court and partly in another, or

b

in another.

7

Any jurisdiction conferred on a civil partnership proceedings county court is exercisable even though by reason of any amount claimed the jurisdiction would not but for this subsection be exercisable by a county court.

8

The jurisdiction of a civil partnership proceedings county court to exercise any power under Schedule 15 (except a power under Part 8 of or paragraph 62 of that Schedule or a power under paragraph 57, 58 or 66 of that Schedule which is exercisable by county courts generally) shall, except to the extent that rules of court otherwise permit and, in particular, without prejudice to section 190(4) and (6), be exercisable only in connection with an application or order pending in or made by such a court.

9

The power to make an order under subsection (4) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

189Appeals

1

Rules of court shall make provision for an appeal upon a point of law, a question of fact or the admission or rejection of any evidence to the Court of Appeal from—

a

from the High Court to a civil partnership proceedings county court,

of any proceedings for the exercise of a power under this Chapter or Schedule 15 (except proceedings on an application under paragraph 57, 58 or 66).

5

The power conferred by subsections (2) and (4) includes power to provide for the removal of proceedings at the direction of the High Court; but nothing in this section affects—

a

any other power of the High Court to remove proceedings to that court from a county court, or

b

any power to remit proceedings from that court to a county court.

6

A court has jurisdiction to entertain any proceedings transferred to the court by virtue of rules made in pursuance of subsection (4).

Chapter 3Property and financial arrangements

191Disputes between civil partners about property

1

In any question between the civil partners in a civil partnership as to title to or possession of property, either civil partner may apply by summons or otherwise in a summary way to—

a

the High Court, or

b

a county court.

2

On such an application, the court may make such order with respect to the property as it thinks fit (including an order for the sale of the property).

3

Rules of court made for the purposes of this section may confer jurisdiction on county courts whatever the situation or value of the property in dispute.

192Applications under section 191 where property not in possession etc.

1

The right of a civil partner (“A”) to make an application under section 191 includes the right to make such an application where A claims that the other civil partner (“B”) has had in his possession or under his control—

a

money to which, or to a share of which, A was beneficially entitled, or

b

b

is property in respect of which an order could (apart from this section) have been made under section 191,

the court may (either instead of or as well as making an order in accordance with subsection (4)) make any order which it could (apart from this section) have made under section 191.

6

Any power of the court which is exercisable on an application under section 191 is exercisable in relation to an application made under that section as extended by this section.

193Applications under section 191 by former civil partners

1

Where a civil partnership has been dissolved or annulled or is void (whether or not it has been annulled), either party may make an application under section 191 (or under that section as extended by section 192) and references in those sections to a civil partner are to be read accordingly.

2

An application under subsection (1) must—

a

where the civil partnership has been dissolved or annulled, be made within the period of 3 years beginning with the date of the dissolution or annulment, and

b

where a civil partnership is void but has not been annulled and the parties have ceased to live together in the same household, be made within the period of 3 years beginning with the date on which they ceased so to live together.

194Assurance policy by civil partner for benefit of other civil partner etc.

Section 4 of the Law Reform (Husband and Wife) Act (Northern Ireland) 1964 (c. 23 (N.I.)) (money payable under policy of life assurance or endowment not to form part of the estate of the insured) applies in relation to a policy of life assurance or endowment—

a

effected by a civil partner on his own life, and

b

expressed to be for the benefit of his civil partner, or of his children, or of his civil partner and children, or any of them,

as it applies in relation to a policy of life assurance or endowment effected by a husband and expressed to be for the benefit of his wife, or of his children, or of his wife and children, or of any of them.

195Wills, administration of estates and family provision

Schedule 14 amends enactments relating to wills, administration of estates and family provision so that they apply in relation to civil partnerships as they apply in relation to marriage.

196Financial relief for civil partners and children of family

1

Schedule 15 makes provision for financial relief in connection with civil partnerships that corresponds to the provision made for financial relief in connection with marriages by Part 3 of the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)).

2

Any rule of law under which any provision of Part 3 of the 1978 Order is interpreted as applying to dissolution of a marriage on the ground of presumed death is to be treated as applying (with any necessary modifications) in relation to the corresponding provision of Schedule 15.

3

Schedule 16 makes provision for financial relief in connection with civil partnerships that corresponds to provision made for financial relief in connection with marriages by the Domestic Proceedings (Northern Ireland) Order 1980 (S.I. 1980/563 (N.I. 5)).

4

Schedule 17 makes provision for financial relief in Northern Ireland after a civil partnership has been dissolved or annulled, or civil partners have been legally separated, in a country outside the British Islands.

Chapter 4Civil partnership agreements

197Civil partnership agreements unenforceable

1

A civil partnership agreement does not under the law of Northern Ireland have effect as a contract giving rise to legal rights.

2

No action lies in Northern Ireland for breach of a civil partnership agreement, whatever the law applicable to the agreement.

3

In this section and section 198 “civil partnership agreement” means an agreement between two people—

a

to register as civil partners of each other—

i

in Northern Ireland (under Part 4),

ii

in England and Wales (under Part 2),

iii

in Scotland (under Part 3), or

iv

outside the United Kingdom under an Order in Council made under Chapter 1 of Part 5 (registration at British consulates etc. or by armed forces personnel), or

b

to enter into an overseas relationship.

4 198Property where civil partnership agreement is terminated

1

This section applies if a civil partnership agreement is terminated.

2

Sections 191 and 192 (disputes between civil partners about property) apply to any dispute between, or claim by, one of the parties in relation to property in which either or both had a beneficial interest while the agreement was in force, as if the parties were civil partners of each other.

3

An application made under section 191 or 192 by virtue of subsection (2) must be made within 3 years of the termination of the agreement.

4 Chapter 5Children

199Parental responsibility, children of the family and relatives

1

Amend the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) (“the 1995 Order”) as follows.

2

In Article 2(2) (interpretation), for the definition of “child of the family” in relation to the parties to a marriage, substitute—

“child of the family”, in relation to parties to a marriage, or to two people who are civil partners of each other, means—

a

a child of both of them, and

b

any other child, other than a child placed with them as foster parents by an authority or voluntary organisation, who has been treated by both of them as a child of their family.

3

In the definition of “relative” in Article 2(2), for “by affinity)” substitute “by marriage or civil partnership)”.

4

In Article 7(1C) (acquisition of parental responsibility by step-parent), after “is married to” insert “, or a civil partner of,”.

200Guardianship

In Article 161 of the 1995 Order (revocation of appointment), after paragraph (7) insert—

8

An appointment under paragraph (1) or (2) of Article 160 (including one made in an unrevoked will) is revoked if—

a

the civil partnership of the person who made the appointment is dissolved or annulled, and

b

the person appointed is his former civil partner.

9

Paragraph (8) is subject to a contrary intention appearing from the appointment.

10

In paragraph (8) “dissolved or annulled” means—

a

dissolved by a dissolution order or annulled by a nullity order under Part 4 of the Civil Partnership Act 2004, or

b

dissolved or annulled in any country or territory outside Northern Ireland by a dissolution or annulment which is entitled to recognition in Northern Ireland by virtue of Chapter 3 of Part 5 of that Act.

201Entitlement to apply for residence or contact order

In Article 10(5) of the 1995 Order (persons entitled to apply for residence or contact order), after sub-paragraph (a) insert—

aa

any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;

202Financial provision for children

1

Amend Schedule 1 to the 1995 Order (financial provision for children) as follows.

2

For paragraph 1(2) (extended meaning of “parent”) substitute—

2

In this Schedule, except paragraphs 3 and 17, “parent” includes—

a

any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and

b

any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;

and for this purpose any reference to either parent or both parents shall be read as a reference to any parent of his and to all of his parents.

3

In paragraph 3(6) (meaning of “periodical payments order”), after paragraph (d) insert—

e

Part 1 or 8 of Schedule 15 to the Civil Partnership Act 2004 (financial relief in the High Court or county court etc.);

f

Schedule 16 to the 2004 Act (financial relief in court of summary jurisdiction etc.);

4

In paragraph 17(2) (person with whom a child lives or is to live), after “husband or wife” insert “or civil partner”.

203Adoption

1

Amend the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)) as follows.

2

In Article 2 (interpretation), in the definition of “relative” in paragraph (2), for “affinity” substitute “marriage or civil partnership”.

3

In Article 12 (adoption orders), in paragraph (5), after “married” insert “or who is or has been a civil partner”.

4

In Article 15 (adoption by one person), in paragraph (1)(a), after “is not married” insert “or a civil partner”.

5

In Article 33 (meaning of “protected child”), in paragraph (3)(g), after “marriage” insert “or forming a civil partnership”.

6

In Article 40 (status conferred by adoption), in paragraph (3)(a), after “1984” insert “or for the purposes of Schedule 12 to the Civil Partnership Act 2004”.

7

In Article 54 (disclosure of birth records of adopted children), in paragraph (2)—

a

after “intending to be married” insert “or to form a civil partnership”;

b

for “the person whom he intends to marry” substitute “the intended spouse or civil partner”;

c

after “1984” insert “or Schedule 12 to the Civil Partnership Act 2004”.

8

In Article 54A (Adoption Contact Register), in paragraph (13)(a), for “or marriage” substitute “, marriage or civil partnership”.

Chapter 6Miscellaneous

204False statements etc. with reference to civil partnerships

1

Amend Article 8 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statements etc. with reference to marriage) as follows.

2

After paragraph (1) insert—

1A

Any person who—

a

for the purpose of procuring the formation of a civil partnership or a document mentioned in paragraph (1B)—

i

makes or signs a declaration required under Part 4 or 5 of the Civil Partnership Act 2004; or

ii

gives a notice or certificate required under Part 4 or 5 of the Civil Partnership Act 2004,

knowing that the declaration, notice or certificate is false;

b

for the purpose of a record being made in any register relating to civil partnerships—

i

makes a statement as to any information which is required to be registered under Part 4 or 5 of the Civil Partnership Act 2004; or

ii

causes such a statement to be made,

knowing that the statement is false;

c

forbids the issue of a document mentioned in paragraph (1B)(a) or (b) by representing himself to be a person whose consent to a civil partnership between a child and another person is required under Part 4 or 5 of the Civil Partnership Act 2004, knowing the representation to be false,

shall be guilty of an offence.

1B

The documents are[en rule]

a

a civil partnership schedule;

b

a document required by an Order in Council under section 210 or 211 of the Civil Partnership Act 2004 as an authority for two people to register as civil partners of each other;

c

a certificate of no impediment under section 240 of the Civil Partnership Act 2004.

3

In paragraph (2), after “paragraph (1)” insert “or (1A)”.

4

In the heading to Article 8, after “marriage” insert “or civil partnership”.

205Housing and tenancies

Schedule 18 amends certain enactments relating to housing and tenancies.

206Family homes and domestic violence

Schedule 19 amends the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) and related enactments so that they apply in relation to civil partnerships as they apply in relation to marriages.

207Fatal accidents claims

1

Amend the Fatal Accidents (Northern Ireland) Order 1977 (S.I. 1977/1251 (N.I. 18)) as follows.

2

In Article 2(2) (meaning of “dependant”), after sub-paragraph (a) insert—

aa

the civil partner or former civil partner of the deceased;

3

In sub-paragraph (b)(iii) of Article 2(2), after “wife” insert “or civil partner”.

4

After sub-paragraph (f) of Article 2(2) insert—

fa

any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;

5

After Article 2(2A) insert—

2B

The reference to the former civil partner of the deceased in paragraph (2)(aa) includes a reference to a person whose civil partnership with the deceased has been annulled as well as a person whose civil partnership with the deceased has been dissolved.

the proposed civil partners would have been eligible to register as civil partners of each other in such part of the United Kingdom as is determined in accordance with the Order,

c

the authorities of the country or territory in which it is proposed that they register as civil partners will not object to the registration, and

d

insufficient facilities exist for them to enter into an overseas relationship under the law of that country or territory.

3

An officer is not required to allow two people to register as civil partners of each other if in his opinion the formation of a civil partnership between them would be inconsistent with international law or the comity of nations.

4

An Order in Council under this section may make provision for appeals against a refusal, in reliance on subsection (3), to allow two people to register as civil partners of each other.

5

An Order in Council under this section may provide that two people who register as civil partners of each other under such an Order are to be treated for the purposes of sections 221(1)(c)(i) and (2)(c)(i), 222(c), 224(b), 225(1)(c)(i) and (3)(c)(i), 229(1)(c)(i) and (2)(c)(i), 230(c) and 232(b) and section 1(3)(c)(i) of the Presumption of Death (Scotland) Act 1977 (c. 27) as if they had done so in the part of the United Kingdom determined as mentioned in subsection (2)(b).

211Registration by armed forces personnel

1

Her Majesty may by Order in Council make provision for two people to register as civil partners of each other—

a

in prescribed countries or territories outside the United Kingdom, and

b

in the presence of an officer appointed by virtue of the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957 (c. 58),

in cases where the officer is satisfied that the conditions in subsection (2) are met.

2

The conditions are that—

a

at least one of the proposed civil partners—

i

is a member of a part of Her Majesty’s forces serving in the country or territory,

ii

is employed in the country or territory in such other capacity as may be prescribed, or

iii

ii

neither of whom is already a civil partner or lawfully married.

2

In this Chapter, “the relevant law” means the law of the country or territory where the relationship is registered (including its rules of private international law).

213Specified relationships

1

A specified relationship is a relationship which is specified for the purposes of section 212 by Schedule 20.

2

The Secretary of State may by order amend Schedule 20 by—

a

adding a relationship,

b

amending the description of a relationship, or

c

omitting a relationship.

3

No order may be made under this section without the consent of the Scottish Ministers and the Department of Finance and Personnel.

4

The power to make an order under this section is exercisable by statutory instrument.

5

An order which contains any provision (whether alone or with other provisions) amending Schedule 20 by—

a

amending the description of a relationship, or

b

omitting a relationship,

may not be made unless a draft of the statutory instrument containing the order is laid before, and approved by a resolution of, each House of Parliament.

6

A statutory instrument containing any other order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

214The general conditions

The general conditions are that, under the relevant law—

a

the relationship may not be entered into if either of the parties is already a party to a relationship of that kind or lawfully married,

b

the relationship is of indeterminate duration, and

c

the effect of entering into it is that the parties are—

i

treated as a couple either generally or for specified purposes, or

ii

treated as married.

215Overseas relationships treated as civil partnerships: the general rule

1

Two people are to be treated as having formed a civil partnership as a result of having registered an overseas relationship if, under the relevant law, they—

a

had capacity to enter into the relationship, and

b

b

the other party was (under United Kingdom law) of the gender to which A had changed under the relevant law.

5

In this section—

“the critical time” means the time determined in accordance with section 215(2) or (as the case may be) (3);

“the 2004 Act” means the Gender Recognition Act 2004 (c. 7);

“United Kingdom law” means any enactment or rule of law applying in England and Wales, Scotland and Northern Ireland.

6

Nothing in this section prevents the exercise of any enforceable Community right.

217Person domiciled in a part of the United Kingdom

1

Subsection (2) applies if an overseas relationship has been registered by a person who was at the time mentioned in section 215(2) domiciled in England and Wales.

2

The two people concerned are not to be treated as having formed a civil partnership if, at the time mentioned in section 215(2)—

a

either of them was under 16, or

b

they would have been within prohibited degrees of relationship under Part 1 of Schedule 1 if they had been registering as civil partners of each other in England and Wales.

3

Subsection (4) applies if an overseas relationship has been registered by a person who at the time mentioned in section 215(2) was domiciled in Scotland.

4

The two people concerned are not to be treated as having formed a civil partnership if, at the time mentioned in section 215(2), they were not eligible by virtue of paragraph (b), (c) or (e) of section 86(1) to register in Scotland as civil partners of each other.

5

Subsection (6) applies if an overseas relationship has been registered by a person who at the time mentioned in section 215(2) was domiciled in Northern Ireland.

6

The two people concerned are not to be treated as having formed a civil partnership if, at the time mentioned in section 215(2)—

a

either of them was under 16, or

b

they would have been within prohibited degrees of relationship under Schedule 12 if they had been registering as civil partners of each other in Northern Ireland.

218The public policy exception

Two people are not to be treated as having formed a civil partnership as a result of having entered into an overseas relationship if it would be manifestly contrary to public policy to recognise the capacity, under the relevant law, of one or both of them to enter into the relationship.

Chapter 3Dissolution etc.: jurisdiction and recognition

6

Regulations under subsection (1) are to be made by statutory instrument and may only be made if a draft has been laid before and approved by resolution of each House of Parliament.

7

Regulations under subsection (2) are to be made by statutory instrument and may only be made if a draft has been laid before and approved by resolution of the Scottish Parliament.

8

In this Part “section 219 regulations” means regulations made under this section.

Jurisdiction of courts in England and Wales

220Meaning of “the court”

In sections 221 to 224 “the court” means—

a

the High Court, or

b

if a county court has jurisdiction by virtue of Part 5 of the Matrimonial and Family Proceedings Act 1984 (c. 42), a county court.

The court has jurisdiction to entertain proceedings for a presumption of death order if (and only if)—

a

the applicant is domiciled in England and Wales on the date when the proceedings are begun,

b

the applicant was habitually resident in England and Wales throughout the period of 1 year ending with that date, or

c

the two people concerned registered as civil partners of each other in England and Wales and it appears to the court to be in the interests of justice to assume jurisdiction in the case.

223Proceedings for dissolution, nullity or separation order: supplementary

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 has jurisdiction to entertain other proceedings, in respect of the same civil partnership (or ostensible civil partnership), for dissolution, separation or (but only where the court is the Court of Session) declarator of nullity, even though that jurisdiction would not be exercisable under any of subsections (1) to (3).

226Sisting of proceedings

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—

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

227Scottish 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 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 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 219 regulations, 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 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) 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.

Jurisdiction of courts in Northern Ireland

228Meaning of “the court”

In sections 229 to 232 “the court” has the meaning given by section 188.

the applicant is domiciled in Northern Ireland on the date when the proceedings are begun,

b

the applicant was habitually resident in Northern Ireland throughout the period of 1 year ending with that date, or

c

the two people concerned registered as civil partners of each other in Northern Ireland and it appears to the High Court to be in the interests of justice to assume jurisdiction in the case.

231Proceedings for dissolution, nullity or separation order: supplementary

1

Rules of court may make provision in relation to civil partnerships corresponding to the provision made in relation to marriages by Schedule 1 to the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)).

2

The rules may in particular make provision—

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 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.

234Recognition 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 235 to 237.

2

This section and sections 235 to 237 do not apply to an overseas dissolution, annulment or legal separation as regards which provision as to recognition is made by section 219 regulations.

3

For the purposes of subsections (1) and (2) and sections 235 to 237, 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 outside the United Kingdom (whether before or after this section comes into force).

in the case of an overseas dissolution, annulment or legal separation obtained otherwise than by means of proceedings, the date on which it 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.

236Refusal of recognition

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—

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 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—

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 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

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

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 separation would be manifestly contrary to public policy.

4

In this section—

“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 235.

if made by the Scottish Ministers, is subject to annulment in pursuance of a resolution of the Scottish Parliament.

5

In this section (except subsection (4)) and sections 233 to 236 and 238—

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

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

“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.

238Non-recognition elsewhere of dissolution or annulment

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.

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 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 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.

240Certificates 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,

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).

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

241Transmission 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 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.

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

c

in relation to Northern Ireland, the Registrar General for Northern Ireland.

242Power 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 the former two countries) makes, in relation to forces raised there, provision similar to that made by section 211 (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.

243Fees

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.

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

4

The power to make an order under section 157(1) 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 or on behalf of the Registrar General for Northern Ireland.

244Orders in Council: supplementary

1

An Order in Council under section 210, 211, 239, 240, 241 or 242 may make—

a

different provision for different cases, and

b

such supplementary, incidental, consequential, transitional, transitory or saving provision as appears to Her Majesty to be appropriate.

2

The provision that may be made by virtue of subsection (1)(b) includes in particular provision corresponding to or applying with modifications any provision made by or under—

a

this Act, or

b

any Act relating to marriage outside the United Kingdom.

3

A statutory instrument containing an Order in Council under section 210, 211, 239, 240, 241 or 242 is subject to annulment in pursuance of a resolution of either House of Parliament.

4

Subsection (3) applies whether or not the Order also contains other provisions made by Order in Council under—

the Foreign Marriage Act 1892 (c. 23),

section 3 of the Foreign Marriage Act 1947 (c. 33), or

section 39 of the Marriage Act 1949 (c. 76).

5

In sections 210, 211, 239, 240 and 241 “prescribed” means prescribed by an Order in Council under the section in question.

245Interpretation

1

In this Part “United Kingdom national” means a person who is—

a

a British citizen, a British overseas territories citizen, a British Overseas citizen or a British National (Overseas),

b

a British subject under the British Nationality Act 1981 (c. 61), or

c

a British protected person, within the meaning of that Act.

2

In this Part “Her Majesty’s forces” has the same meaning as in the Army Act 1955 (3 & 4 Eliz. 2 c. 18).

Part 6Relationships arising through civil partnership

246Interpretation of statutory references to stepchildren etc.

1

In any provision to which this section applies, references to a stepchild or step-parent of a person (here, “A”), and cognate expressions, are to be read as follows—

A’s stepchild includes a person who is the child of A’s civil partner (but is not A’s child);

A’s step-parent includes a person who is the civil partner of A’s parent (but is not A’s parent);

A’s stepdaughter includes a person who is the daughter of A’s civil partner (but is not A’s daughter);

A’s stepson includes a person who is the son of A’s civil partner (but is not A’s son);

A’s stepfather includes a person who is the civil partner of A’s father (but is not A’s parent);

A’s stepmother includes a person who is the civil partner of A’s mother (but is not A’s parent);

A’s stepbrother includes a person who is the son of the civil partner of A’s parent (but is not the son of either of A’s parents);

A’s stepsister includes a person who is the daughter of the civil partner of A’s parent (but is not the daughter of either of A’s parents).

2

For the purposes of any provision to which this section applies—

“brother-in-law” includes civil partner’s brother,

“daughter-in-law” includes daughter’s civil partner,

“father-in-law” includes civil partner’s father,

“mother-in-law” includes civil partner’s mother,

“parent-in-law” includes civil partner’s parent,

“sister-in-law” includes civil partner’s sister, and

“son-in-law” includes son’s civil partner.

A statutory instrument containing an order under subsection (2) made by the Scottish Ministers is subject to annulment in pursuance of a resolution of the Scottish Parliament.

8

A statutory rule containing an order under subsection (2) made by a Northern Ireland department is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.))).

9

In this section—

“Act” includes an Act of the Scottish Parliament;

“existing Act” means an Act passed on or before the last day of the Session in which this Act is passed;

“existing subordinate legislation” means subordinate legislation made before the day on which this section comes into force;

“future Act” means an Act passed after the last day of the Session in which this Act is passed;

“future subordinate legislation” means subordinate legislation made on or after the day on which this section comes into force;

“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975 (c. 26);

“prescribed” means prescribed by the order;

“relevant Scottish provision” means a provision that would be within the legislative competence of the Scottish Parliament if it were included in an Act of that Parliament;

“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) except that it includes an instrument made under an Act of the Scottish Parliament;

“transferred matter” has the meaning given by section 4(1) of the Northern Ireland Act 1998 (c. 47) and “deals with” in relation to a transferred matter is to be construed in accordance with section 98(2) and (3) of the 1998 Act.

248Provisions to which section 246 applies: Northern Ireland

1

Section 246 applies to—

a

any provision listed in Schedule 22 (references to stepchildren, etc. in Northern Ireland legislation),

b

except in so far as otherwise provided, any provision made by any future Northern Ireland legislation, and

c

except in so far as otherwise provided, any provision made by any future subordinate legislation.

2

The Department of Finance and Personnel may by order—

a

amend Schedule 22 by adding to it any provision of existing Northern Ireland legislation;

b

provide for section 246 to apply to prescribed provisions of existing subordinate legislation.

3

The power to make an order under subsection (2) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

4

An order under subsection (2) is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (1954 c. 33 (N.I.))).

5

In this section—

“existing Northern Ireland legislation” means Northern Ireland legislation passed or made on or before the last day of the Session in which this Act is passed;

“existing subordinate legislation” means subordinate legislation made before the day on which this section comes into force;

“future Northern Ireland legislation” means Northern Ireland legislation passed or made after the last day of the Session in which this Act is passed;

“future subordinate legislation” means subordinate legislation made on or after the day on which this section comes into force;

“prescribed” means prescribed by the order;

“subordinate legislation” means any instrument (within the meaning of section 1(c) of the Interpretation Act (Northern Ireland) 1954 (1954 c. 33 (N.I.))).

Part 7Miscellaneous

249Immigration control and formation of civil partnerships

Schedule 23 contains provisions relating to the formation of civil partnerships in the United Kingdom by persons subject to immigration control.

250Gender recognition where applicant a civil partner

1

Amend the Gender Recognition Act 2004 (c. 7) as follows.

2

In—

a

section 3 (evidence), in subsection (6)(a), and

b

section 4 (successful applications), in subsections (2) and (3),

after “is married” insert “or a civil partner”.

3

In section 5 (subsequent issue of full certificates)—

a

in subsection (2), after “is again married” insert “or is a civil partner”,

b

in subsection (6)(a), for “is not married” substitute “is neither married nor a civil partner”, and

c

for the heading substitute “Issue of full certificates where applicant has been married”.

4

After section 5 insert—

5AIssue of full certificates where applicant has been a civil partner

1

A court which—

a

makes final a nullity order made on the ground that an interim gender recognition certificate has been issued to a civil partner, or

b

(in Scotland) grants a decree of dissolution on that ground,

must, on doing so, issue a full gender recognition certificate to that civil partner and send a copy to the Secretary of State.

2

If an interim gender recognition certificate has been issued to a person and either—

a

the person’s civil partnership is dissolved or annulled (otherwise than on the ground mentioned in subsection (1)) in proceedings instituted during the period of six months beginning with the day on which it was issued, or

b

the person’s civil partner dies within that period,

the person may make an application for a full gender recognition certificate at any time within the period specified in subsection (3) (unless the person is again a civil partner or is married).

3

That period is the period of six months beginning with the day on which the civil partnership is dissolved or annulled or the death occurs.

4

An application under subsection (2) must include evidence of the dissolution or annulment of the civil partnership and the date on which proceedings for it were instituted, or of the death of the civil partner and the date on which it occurred.

5

An application under subsection (2) is to be determined by a Gender Recognition Panel.

6

The Panel—

a

must grant the application if satisfied that the applicant is neither a civil partner nor married, and

b

otherwise must reject it.

7

If the Panel grants the application it must issue a full gender recognition certificate to the applicant.

5

In—

a

section 7 (applications: supplementary), in subsection (1),

b

section 8 (appeals etc.), in subsections (1) and (5), and

c

section 22 (prohibition on disclosure of information), in subsection (2)(a),

after “5(2)” insert “, 5A(2)”.

6

In section 21 (foreign gender change and marriage), in subsection (4), after “entered into a later (valid) marriage” insert “or civil partnership”.

7

In section 25 (interpretation), in the definition of “full gender recognition certificate” and “interim gender recognition certificate”, for “or 5” substitute “, 5 or 5A”.

8

In Schedule 1 (Gender Recognition Panels), in paragraph 5, after “5(2)” insert “, 5A(2)”.

9

In Schedule 3 (registration), in paragraphs 9(1), 19(1) and 29(1), for “or 5(2)” substitute “, 5(2) or 5A(2)”.

251Discrimination against civil partners in employment field

1

Amend the Sex Discrimination Act 1975 (c. 65) as follows.

2

For section 3 (discrimination against married persons in employment field) substitute—

3Discrimination against married persons and civil partners in employment field

1

In any circumstances relevant for the purposes of any provision of Part 2, a person discriminates against a person (“A”) who fulfils the condition in subsection (2) if—

a

on the ground of the fulfilment of the condition, he treats A less favourably than he treats or would treat a person who does not fulfil the condition, or

b

he applies to A a provision, criterion or practice which he applies or would apply equally to a person who does not fulfil the condition, but—

i

which puts or would put persons fulfilling the condition at a particular disadvantage when compared with persons not fulfilling the condition, and

ii

which puts A at that disadvantage, and

iii

which he cannot show to be a proportionate means of achieving a legitimate aim.

2

The condition is that the person is—

a

married, or

b

a civil partner.

3

For the purposes of subsection (1), a provision of Part 2 framed with reference to discrimination against women is to be treated as applying equally to the treatment of men, and for that purpose has effect with such modifications as are requisite.

3

In section 5 (interpretation), for subsection (3) substitute—

3

Each of the following comparisons, that is—

a

a comparison of the cases of persons of different sex under section 1(1) or (2),

b

a comparison of the cases of persons required for the purposes of section 2A, and

c

a comparison of the cases of persons who do and who do not fulfil the condition in section 3(2),

must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

and omit section 1(4).

4

In section 7 (exception where sex is a genuine occupational qualification), in subsection (2)(h) for “by a married couple” substitute

—

i

by a married couple,

ii

by a couple who are civil partners of each other, or

iii

by a married couple or a couple who are civil partners of each other

5

In section 65 (remedies on complaint under section 63), in subsection (1B) for “or marital status as the case may be” substitute “or (as the case may be) fulfilment of the condition in section 3(2)”.

252Discrimination against civil partners in employment field: Northern Ireland

1

Amend the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)) as follows.

2

For Article 5 (discrimination against married persons in employment field) substitute—

Discrimination against married persons and civil partners in employment field5

1

In any circumstances relevant for the purposes of any provision of Part 3, a person discriminates against a person (“A”) who fulfils the condition in paragraph (2) if—

a

on the ground of the fulfilment of the condition, he treats A less favourably than he treats or would treat a person who does not fulfil the condition, or

b

he applies to A a provision, criterion or practice which he applies or would apply equally to a person who does not fulfil the condition, but—

i

which puts or would put persons fulfilling the condition at a particular disadvantage when compared with persons not fulfilling the condition, and

ii

which puts A at that disadvantage, and

iii

which he cannot show to be a proportionate means of achieving a legitimate aim.

2

The condition is that the person is—

a

married, or

b

a civil partner.

3

For the purposes of paragraph (1), a provision of Part 3 framed with reference to discrimination against women is to be treated as applying equally to the treatment of men, and for that purpose has effect with such modifications as are requisite.

3

For Article 7 (basis of comparison) substitute—

Basis of comparison7

Each of the following comparisons, that is—

a

a comparison of the cases of persons of different sex under Article 3(1) or (2),

b

a comparison of the cases of persons required for the purposes of Article 4A, and

c

a comparison of the cases of persons who do and who do not fulfil the condition in Article 5(2),

must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

and omit Article 3(4).

4

In Article 10 (exception where sex is a genuine occupational qualification), in paragraph (2)(h) for “by a married couple” substitute—

i

by a married couple,

ii

by a couple who are civil partners of each other, or

iii

by a married couple or a couple who are civil partners of each other

5

In Article 65 (remedies on complaint under Article 63), in paragraph (1B) for “or marital status as the case may be” substitute “or (as the case may be) fulfilment of the condition in Article 5(2)”.

253Civil partners to have unlimited insurable interest in each other

1

Where two people are civil partners, each of them is to be presumed for the purposes of section 1 of the Life Assurance Act 1774 (c. 48) to have an interest in the life of the other.

2

For the purposes of section 3 of the 1774 Act, there is no limit on the amount of value of the interest.

254Social security, child support and tax credits

1

by the Scottish Ministers, unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, the Scottish Parliament;

c

by a Northern Ireland department, unless a draft of the statutory rule containing the order has been laid before, and approved by a resolution of, the Northern Ireland Assembly.

11

In this section—

“the appropriate person”, in relation to an order under this section, means the person making the order;

“Church legislation” means—

any Measure of the Church Assembly or of the General Synod of the Church of England, or

any order, regulation or other instrument made under or by virtue of such a Measure;

“enactment” includes an enactment comprised in an Act of the Scottish Parliament;

“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975 (c. 26);

“relevant Scottish provision” means a provision that would be within the legislative competence of the Scottish Parliament if it were included in an Act of that Parliament;

“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) except that it includes any instrument made under an Act of the Scottish Parliament and any instrument within the meaning of section 1(c) of the Interpretation Act (Northern Ireland) 1954 (1954 c. 33 (N.I.));

256Amendment of certain enactments relating to pensions

Schedule 25 amends certain enactments relating to pensions.

257Amendment of certain enactments relating to the armed forces

Schedule 26 amends certain enactments relating to the armed forces.

Part 8Supplementary

258Regulations and orders

1

This section applies to any power conferred by this Act to make regulations or an order (except a power of a court to make an order).

2

The power may be exercised so as to make different provision for different cases and different purposes.

3

The power includes power to make any supplementary, incidental, consequential, transitional, transitory or saving provision which the person making the regulations or order considers expedient.

The power to make an order under subsection (1) is not restricted by any other provision of this Act.

6

Subject to subsection (7), the power to make an order under subsection (1) is exercisable by statutory instrument.

7

8

An order under subsection (1) which contains any provision (whether alone or with other provisions) made by virtue of subsection (3) may not be made—

a

by a Minister of the Crown, unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament;

b

by the Scottish Ministers, unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, the Scottish Parliament;

c

by a Northern Ireland department, unless a draft of the statutory rule containing the order has been laid before, and approved by a resolution of, the Northern Ireland Assembly.

9

A statutory instrument containing an order under subsection (1) to which subsection (8) does not apply—

a

if made by a Minister of the Crown, 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.

10

A statutory rule made by a Northern Ireland department and containing an order to which subsection (8) does not apply is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.))).

11

In this section—

“Act” includes an Act of the Scottish Parliament;

“Church legislation” has the same meaning as in section 255;

“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975 (c. 26);

“relevant Scottish provision” means a provision that would be within the legislative competence of the Scottish Parliament if it were included in an Act of that Parliament;

paragraph 3 of Schedule 2 to the 1972 Act (modifications of paragraph 2 in relation to Northern Ireland departments etc.) and the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)) (treating the power conferred by subsection (2) as conferred by an Act passed before 1st January 1974 for the purposes of the application of that Order);

d

section 29(3) of the Government of Wales Act 1998 (c. 38) (modifications of paragraph 2 in relation to the National Assembly for Wales).

261Minor and consequential amendments, repeals and revocations

1

Schedule 27 contains minor and consequential amendments.

2

Schedule 28 contains consequential amendments of enactments relating to Scotland.

3

Schedule 29 contains minor and consequential amendments relating to Northern Ireland.

4

Schedule 30 contains repeals and revocations.

262Extent

1

Part 2 (civil partnership: England and Wales), excluding section 35 but including Schedules 1 to 9, extends to England and Wales only.

2

Part 3 (civil partnership: Scotland), including Schedules 10 and 11, extends to Scotland only.

3

Part 4 (civil partnership: Northern Ireland), including Schedules 12 to 19, extends to Northern Ireland only.

4

In Part 5 (civil partnerships formed or dissolved abroad etc.)—

a

sections 220 to 224 extend to England and Wales only;

b

sections 225 to 227 extend to Scotland only;

c

sections 228 to 232 extend to Northern Ireland only.

5

In Part 6—

a

any amendment made by virtue of section 247(1)(a) and Schedule 21 has the same extent as the provision subject to the amendment;

b

section 248 and Schedule 22 extend to Northern Ireland only.

6

Section 251 extends to England and Wales and Scotland only.

7

Section 252 extends to Northern Ireland only.

8

Schedule 28 extends to Scotland only.

9

Schedule 29 extends to Northern Ireland only.

10

Any amendment, repeal or revocation made by Schedules 24 to 27 and 30 has the same extent as the provision subject to the amendment, repeal or revocation.

This Act may be cited as the Civil Partnership Act 2004.

SCHEDULES

SCHEDULE 1Prohibited degrees of relationship: England and Wales

Sections 3(2) and 5(3)

Part 1The prohibitions

1Absolute prohibitions

1

Two people are within prohibited degrees of relationship if one falls within the list below in relation to the other.

Adoptive child

Adoptive parent

Child

Former adoptive child

Former adoptive parent

Grandparent

Grandchild

Parent

Parent’s sibling

Sibling

Sibling’s child

2

In the list “sibling” means a brother, sister, half-brother or half-sister.

Qualified prohibitions

2

1

Two people are within prohibited degrees of relationship if one of them falls within the list below in relation to the other, unless—

a

both of them have reached 21 at the time when they register as civil partners of each other, and

b

the younger has not at any time before reaching 18 been a child of the family in relation to the other.

Child of former civil partner

Child of former spouse

Former civil partner of grandparent

Former civil partner of parent

Former spouse of grandparent

Former spouse of parent

Grandchild of former civil partner

Grandchild of former spouse

2

“Child of the family”, in relation to another person, means a person who—

a

has lived in the same household as that other person, and

b

has been treated by that other person as a child of his family.

3

Two people are within prohibited degrees of relationship if one falls within column 1 of the table below in relation to the other, unless—

a

both of them have reached 21 at the time when they register as civil partners of each other, and

b

the persons who fall within column 2 are dead.

Relationship	Relevant deaths
Former civil partner of child	The child
Former civil partner of child	The child’s other parent
Former spouse of child	The child
Former spouse of child	The child’s other parent
Parent of former civil partner	The former civil partner
Parent of former civil partner	The former civil partner’s other parent
Parent of former spouse	The former spouse
Parent of former spouse	The former spouse’s other parent

Part 2Special provisions relating to qualified prohibitions

Provisions relating to paragraph 2

4

Paragraphs 5 to 7 apply where two people are subject to paragraph 2 but intend to register as civil partners of each other by signing a civil partnership schedule.

5

1

The fact that a notice of proposed civil partnership has been given must not be recorded in the register unless the registration authority—

a

is satisfied by the production of evidence that both the proposed civil partners have reached 21, and

b

has received a declaration made by each of the proposed civil partners—

i

specifying their affinal relationship, and

ii

declaring that the younger of them has not at any time before reaching 18 been a child of the family in relation to the other.

2

Sub-paragraph (1) does not apply if a declaration is obtained under paragraph 7.

3

A declaration under sub-paragraph (1)(b) must contain such information and must be signed and attested in such manner as may be prescribed by regulations.

4

The fact that a registration authority has received a declaration under sub-paragraph (1)(b) must be recorded in the register.

5

A declaration under sub-paragraph (1)(b) must be filed and kept by the registration authority.

6

1

Sub-paragraph (2) applies if—

a

a registration authority receives from a person who is not one of the proposed civil partners a written statement signed by that person which alleges that a declaration made under paragraph 5 is false in a material particular, and

b

the register shows that such a statement has been received.

2

The registration authority in whose area it is proposed that the registration take place must not issue a civil partnership schedule unless a High Court declaration is obtained under paragraph 7.

7

1

Either of the proposed civil partners may apply to the High Court for a declaration that, given that—

a

both of them have reached 21, and

b

the younger of those persons has not at any time before reaching 18 been a child of the family in relation to the other,

there is no impediment of affinity to the formation of the civil partnership.

2

Such an application may be made whether or not any statement has been received by the registration authority under paragraph 6.

8

Section 13 (objection to proposed civil partnership) does not apply in relation to a civil partnership to which paragraphs 5 to 7 apply, except so far as an objection to the issue of a civil partnership schedule is made under that section on a ground other than the affinity between the proposed civil partners.

9Provisions relating to paragraph 3

1

This paragraph applies where two people are subject to paragraph 3 but intend to register as civil partners of each other by signing a civil partnership schedule.

2

The fact that a notice of proposed civil partnership has been given must not be recorded in the register unless the registration authority is satisfied by the production of evidence—

a

that both the proposed civil partners have reached 21, and

b

that the persons referred to in paragraph 3(b) are dead.

SCHEDULE 2Civil partnerships of persons under 18: England and Wales

Section 4(2) and 5(3)

Part 1Appropriate persons

1

Column 2 of the table specifies the appropriate persons (or person) to give consent to a child whose circumstances fall within column 1 and who intends to register as the civil partner of another—

Case	Appropriate persons
1 The circumstances do not fall within any of items 2 to 8.	Each of the following— a any parent of the child who has parental responsibility for him, and b any guardian of the child.
2 A special guardianship order is in force with respect to the child and the circumstances do not fall within any of items 3 to 7.	Each of the child’s special guardians.
3 A care order has effect with respect to the child and the circumstances do not fall within item 5.	Each of the following— a the local authority designated in the order, and b each parent, guardian or special guardian (in so far as their parental responsibility has not been restricted under section 33(3) of the 1989 Act).
4 A residence order has effect with respect to the child and the circumstances do not fall within item 5.	Each of the persons with whom the child lives, or is to live, as a result of the order.
5 An adoption agency is authorised to place the child for adoption under section 19 of the 2002 Act.	Either— a the adoption agency, or b if a care order has effect with respect to the child, the local authority designated in the order.
6 A placement order is in force with respect to the child.	The local authority authorised by the placement order to place the child for adoption.
7 The child has been placed for adoption with prospective adopters.	The prospective adopters (in so far as their parental responsibility has not been restricted under section 25(4) of the 2002 Act), in addition to any person specified in relation to item 5 or 6.
8 The circumstances do not fall within any of items 2 to 7, but a residence order was in force with respect to the child immediately before he reached 16.	The persons with whom the child lived, or was to live, as a result of the order.

2

In the table—

“the 1989 Act” means the Children Act 1989 (c. 41) and “guardian of a child”, “parental responsibility”, “residence order”, “special guardian”, “special guardianship order” and “care order” have the same meaning as in that Act;

“the 2002 Act” means the Adoption and Children Act 2002 (c. 38) and “adoption agency”, “placed for adoption”, “placement order” and “local authority” have the same meaning as in that Act;

“appropriate local authority” means the local authority authorised by the placement order to place the child for adoption.

Part 2Obtaining consent: general

3Consent of appropriate person unobtainable

1

This paragraph applies if—

a

a child and another person intend to register as civil partners of each other under any procedure other than the special procedure, and

b

the registration authority to whom the child gives a notice of proposed civil partnership is satisfied that the consent of a person whose consent is required (“A”) cannot be obtained because A is absent, inaccessible or under a disability.

2

If there is any other person whose consent is also required, the registration authority must dispense with the need for A’s consent.

3

If no other person’s consent is required—

a

the Registrar General may dispense with the need for any consent, or

b

the court may, on an application being made to it, consent to the child registering as the civil partner of the person mentioned in sub-paragraph (1)(a).

4

The consent of the court under sub-paragraph (3)(b) has the same effect as if it had been given by A.

4Consent of appropriate person refused

1

This paragraph applies if—

a

a child and another person intend to register as civil partners of each other under any procedure other than the special procedure, and

b

any person whose consent is required refuses his consent.

2

The court may, on an application being made to it, consent to the child registering as the civil partner of the person mentioned in sub-paragraph (1)(a).

3

The consent of the court under sub-paragraph (2) has the same effect as if it had been given by the person who has refused his consent.

5Declaration

If one of the proposed civil partners is a child and is not a surviving civil partner, the necessary declaration under section 8 must also—

a

state in relation to each appropriate person—

i

that that person’s consent has been obtained,

ii

that the need to obtain that person’s consent has been dispensed with under paragraph 3, or

iii

that the court has given consent under paragraph 3 or 4, or

b

state that no person exists whose consent is required to a civil partnership between the child and another person.

6Forbidding proposed civil partnership

1

This paragraph applies if it has been recorded in the register that a notice of proposed civil partnership between a child and another person has been given.

2

Any person whose consent is required to a child and another person registering as civil partners of each other may forbid the issue of a civil partnership schedule by giving any registration authority written notice that he forbids it.

3

A notice under sub-paragraph (2) must specify—

a

the name of the person giving it,

b

his place of residence, and

c

the capacity, in relation to either of the proposed civil partners, in which he forbids the issue of the civil partnership schedule.

4

On receiving the notice, the registration authority must as soon as is practicable record in the register the fact that the issue of a civil partnership schedule has been forbidden.

5

If the issue of a civil partnership schedule has been forbidden under this paragraph, the notice of proposed civil partnership and all proceedings on it are void.

6

Sub-paragraphs (2) and (5) do not apply if the court has given its consent under paragraph 3 or 4.

7Evidence

1

This paragraph applies if, for the purpose of obtaining a civil partnership schedule, a person declares that the consent of any person or persons whose consent is required under section 4 has been given.

2

The registration authority may refuse to issue the civil partnership schedule unless satisfied by the production of written evidence that the consent of that person or those persons has in fact been given.

Issue of civil partnership schedule

13Evidence

ii

(in Scotland) grants a decree of divorce on that ground,

and, on doing so, issues a full gender recognition certificate (under section 5(1) of the Gender Recognition Act 2004 (c. 7)) to that party, and

b

the parties wish to register in England or Wales as civil partners of each other without being delayed by the waiting period.

2The relevant period

For the purposes of this Schedule the relevant period is the period—

a

beginning with the issue of the full gender recognition certificate, and

b

ending at the end of 1 month from the day on which it is issued.

Modifications of standard procedure and procedures for house-bound and detained persons

3

If—

a

each of the parties gives a notice of proposed civil partnership during the relevant period, and

b

on doing so, each makes an election under this paragraph,

Chapter 1 of Part 2 applies with the modifications given in paragraphs 4 to 6.

4

1

Omit—

a

section 10 (proposed civil partnership to be publicised);

b

section 11 (meaning of “the waiting period”);

c

section 12 (power to shorten the waiting period).

2

In section 14 (issue of civil partnership schedule), for subsection (1) substitute—

1

As soon as the notices of proposed civil partnership have been given, the registration authority in whose area it is proposed that the registration take place must, at the request of one or both of the proposed civil partners, issue a document to be known as a “civil partnership schedule”.

3

For section 17 (period during which registration may take place) substitute—

17Period during which registration may take place

1

The proposed civil partners may register as civil partners by signing the civil partnership schedule at any time during the applicable period.

2

If they do not register as civil partners by signing the civil partnership schedule before the end of the applicable period—

a

the notices of proposed civil partnership and the civil partnership schedule are void, and

b

no civil partnership registrar may officiate at the signing of the civil partnership schedule by them.

3

The applicable period, in relation to two people registering as civil partners of each other, is the period of 1 month beginning with—

a

the day on which the notices of proposed civil partnership are given, or

b

if the notices are not given on the same day, the earlier of those days.

5

In section 18 (house-bound persons), in subsection (3)—

a

treat the reference to the standard procedure as a reference to the standard procedure as modified by this Schedule, and

b

omit paragraph (c) (which provides for a 3 month registration period).

6

In section 19 (detained persons), in subsection (3)—

a

treat the reference to the standard procedure as a reference to the standard procedure as modified by this Schedule, and

b

omit paragraph (c) (which provides for a 3 month registration period).

B may give a notice of proposed civil partnership and make the necessary declaration without regard to the requirement that would otherwise apply that A must reside in England or Wales.

7

If, on giving such notice, B makes an election under this paragraph, Chapter 1 of Part 2 applies with the modifications given in paragraphs 4 to 6 and the further modifications in sub-paragraph (8).

8

The further modifications are that—

a

b

the applicable period is the period of one month beginning with the day on which B’s notice is given;

c

section 31 applies as if in subsections (1)(a) and (2)(c) for “each notice” there were substituted “B’s notice”.

9

“The relevant provision” means—

a

if A resides in Scotland, section 97;

b

if A resides in Northern Ireland, section 150;

c

if A is a member of Her Majesty’s forces who is serving outside the United Kingdom, section 239.

10

“Her Majesty’s forces” has the same meaning as in the Army Act 1955 (3 & 4 Eliz. 2 c. 18).

SCHEDULE 4Wills, administration of estates and family provision

Section 71

Part 1Wills

1

Amend the Wills Act 1837 (c. 26) as follows.

2

After section 18A insert—

18BWill to be revoked by civil partnership

1

Subject to subsections (2) to (6), a will is revoked by the formation of a civil partnership between the testator and another person.

2

A disposition in a will in exercise of a power of appointment takes effect despite the formation of a subsequent civil partnership between the testator and another person unless the property so appointed would in default of appointment pass to the testator’s personal representatives.

3

If it appears from a will—

a

that at the time it was made the testator was expecting to form a civil partnership with a particular person, and

b

that he intended that the will should not be revoked by the formation of the civil partnership,

the will is not revoked by its formation.

4

Subsections (5) and (6) apply if it appears from a will—

a

that at the time it was made the testator was expecting to form a civil partnership with a particular person, and

b

that he intended that a disposition in the will should not be revoked by the formation of the civil partnership.

5

The disposition takes effect despite the formation of the civil partnership.

6

Any other disposition in the will also takes effect, unless it appears from the will that the testator intended the disposition to be revoked by the formation of the civil partnership.

18CEffect of dissolution or annulment of civil partnership on wills

1

This section applies if, after a testator has made a will—

a

a court of civil jurisdiction in England and Wales dissolves his civil partnership or makes a nullity order in respect of it, or

b

his civil partnership is dissolved or annulled and the dissolution or annulment is entitled to recognition in England and Wales by virtue of Chapter 3 of Part 5 of the Civil Partnership Act 2004.

2

Except in so far as a contrary intention appears by the will—

a

provisions of the will appointing executors or trustees or conferring a power of appointment, if they appoint or confer the power on the former civil partner, take effect as if the former civil partner had died on the date on which the civil partnership is dissolved or annulled, and

b

any property which, or an interest in which, is devised or bequeathed to the former civil partner shall pass as if the former civil partner had died on that date.

3

Subsection (2)(b) does not affect any right of the former civil partner to apply for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

3

The following provisions—

a

section 15 of the Wills Act 1837 (c. 26) (avoidance of gifts to attesting witnesses and their spouses), and

b

section 1 of the Wills Act 1968 (c. 28) (restriction of operation of section 15),

apply in relation to the attestation of a will by a person to whose civil partner there is given or made any such disposition as is described in section 15 of the 1837 Act as they apply in relation to a person to whose spouse there is given or made any such disposition.

4

In section 16 of the 1837 Act, after “wife or husband” insert “or civil partner”.

5

Except where a contrary intention is shown, it is presumed that if a testator—

a

devises or bequeaths property to his civil partner in terms which in themselves would give an absolute interest to the civil partner, but

b

by the same instrument purports to give his issue an interest in the same property,

the gift to the civil partner is absolute despite the purported gift to the issue.

Part 2Administration of estates and family provision

6Public Trustee Act 1906 (c. 55)

In section 6(1), after “widower, widow” (in both places) insert “, surviving civil partner”.

Administration of Estates Act 1925 (c. 23)

7

In section 46 (succession to real and personal estate on intestacy), for “husband or wife” (in each place) substitute “spouse or civil partner”.

8

1

Amend section 47(1) (meaning of “the statutory trusts”) as follows.

2

In paragraph (i), after “or marry under that age” (in the first place) insert “or form a civil partnership under that age”.

3

In that paragraph, after “or marry” (in the second place) insert “, or form a civil partnership,”.

4

In paragraph (ii), after “marries” insert “, or forms a civil partnership,”.

9

In section 47A, in subsection (1) and in the proviso to subsection (5), for “husband or wife” substitute “spouse or civil partner”.

10

In section 48(2), for “husband or wife” (in each place) substitute “spouse or civil partner”.

11

In section 51(3) (devolution of certain estates vested in infant who dies without having married and without issue), after “without having been married” insert “or having formed a civil partnership,”.

12

In section 55(1)(xviii) (which defines “valuable consideration” as including marriage), after “includes marriage,” insert “and formation of a civil partnership,”.

13Intestates’ Estates Act 1952 (c. 64)

1

Amend section 5 and Schedule 2 (rights of surviving spouse as respects the matrimonial home) as follows.

2

For “husband or wife” (in each place) substitute “spouse or civil partner”.

3

In section 5, after “matrimonial” insert “or civil partnership”.

4

In the heading of each—

a

after “spouse” insert “or civil partner”, and

b

after “matrimonial” insert “or civil partnership”.

14Family Provision Act 1966 (c. 35)

In section 1(1) (fixed net sum payable to surviving spouse of person dying intestate), for “husband or wife” substitute “spouse or civil partner”.

Inheritance (Provision for Family and Dependants) Act 1975 (c. 63)

15

1

Amend section 1 (application for financial provision from deceased person’s estate) as follows.

2

For subsection (1)(a) and (b) (application may be made by spouse or by former spouse who has not remarried) substitute—

a

the spouse or civil partner of the deceased;

b

a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;

3

In subsection (1)(ba) (application may be made by person living as husband or wife of the deceased), after “subsection (1A)” insert “or (1B)”.

4

In subsection (1)(d) (application may be made by child of the family), after “marriage” (in each place) insert “or civil partnership”.

5

After subsection (1A) insert—

1B

This subsection applies to a person if for the whole of the period of two years ending immediately before the date when the deceased died the person was living—

a

in the same household as the deceased, and

b

as the civil partner of the deceased.

6

In subsection (2) (meaning of “reasonable financial provision”), after paragraph (a) insert—

aa

in the case of an application made by virtue of subsection (1)(a) above by the civil partner of the deceased (except where, at the date of death, a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force in relation to the civil partnership and the separation was continuing), means such financial provision as it would be reasonable in all the circumstances of the case for a civil partner to receive, whether or not that provision is required for his or her maintenance;

16

In section 2(1) (orders which may be made on an application), after paragraph (f) insert—

g

an order varying any settlement made—

i

during the subsistence of a civil partnership formed by the deceased, or

ii

in anticipation of the formation of a civil partnership by the deceased,

on the civil partners (including such a settlement made by will), the variation being for the benefit of the surviving civil partner, or any child of both the civil partners, or any person who was treated by the deceased as a child of the family in relation to that civil partnership.

17

1

Amend section 3(2) (application by spouse or former spouse: matters to which court is to have regard) as follows.

2

For the words from the beginning to “1(1)(b) of this Act” substitute—

This subsection applies, without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(a) or (b) of this Act.

3

The words from “the court shall, in addition” to the end of paragraph (b) shall become a second sentence of the subsection and, in paragraph (a) of the sentence so formed, after “duration of the marriage” insert “or civil partnership”.

4

The words from “in the case of an application by the wife or husband” to the end shall become a third sentence of the subsection.

5

At the end insert the following sentence—

In the case of an application by the civil partner of the deceased, the court shall also, unless at the date of the death a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the civil partnership, instead of being terminated by death, had been terminated by a dissolution order.

18

In section 3(2A) (application by person living as husband or wife of deceased: matters to which court is to have regard), in paragraph (a), after “wife” insert “or civil partner”.

19

In section 6(3) and (10) (variation etc. of orders which cease on occurrence of specified event other than remarriage of former spouse), for “(other than the remarriage of a former wife or former husband)” substitute “(other than the formation of a subsequent marriage or civil partnership by a former spouse or former civil partner)”.

20

After section 14 insert—

14AProvision as to cases where no financial relief was granted in proceedings for the dissolution etc. of a civil partnership

1

Subsection (2) below applies where—

a

a dissolution order, nullity order, separation order or presumption of death order has been made under Chapter 2 of Part 2 of the Civil Partnership Act 2004 in relation to a civil partnership,

b

one of the civil partners dies within twelve months from the date on which the order is made, and

c

either—

i

an application for a financial provision order under Part 1 of Schedule 5 to that Act or a property adjustment order under Part 2 of that Schedule has not been made by the other civil partner, or

ii

such an application has been made but the proceedings on the application have not been determined at the time of the death of the deceased.

2

If an application for an order under section 2 of this Act is made by the surviving civil partner, the court shall, notwithstanding anything in section 1 or section 3 of this Act, have power, if it thinks it just to do so, to treat the surviving civil partner as if the order mentioned in subsection (1)(a) above had not been made.

3

This section shall not apply in relation to a separation order unless at the date of the death of the deceased the separation order was in force and the separation was continuing.

21

After section 15 insert—

15ZARestriction imposed in proceedings for the dissolution etc. of a civil partnership on application under this Act

1

On making a dissolution order, nullity order, separation order or presumption of death order under Chapter 2 of Part 2 of the Civil Partnership Act 2004, or at any time after making such an order, the court, if it considers it just to do so, may, on the application of either of the civil partners, order that the other civil partner shall not on the death of the applicant be entitled to apply for an order under section 2 of this Act.

2

In subsection (1) above “the court” means the High Court or, where a county court has jurisdiction by virtue of Part 5 of the Matrimonial and Family Proceedings Act 1984, a county court.

3

In the case of a dissolution order, nullity order or presumption of death order (“the main order”) an order may be made under subsection (1) above before (as well as after) the main order is made final, but if made before the main order is made final it shall not take effect unless the main order is made final.

4

Where an order under subsection (1) above made in connection with a dissolution order, nullity order or presumption of death order has come into force with respect to a civil partner, then, on the death of the other civil partner, the court shall not entertain any application for an order under section 2 of this Act made by the surviving civil partner.

5

Where an order under subsection (1) above made in connection with a separation order has come into force with respect to a civil partner, then, if the other civil partner dies while the separation order is in force and the separation is continuing, the court shall not entertain any application for an order under section 2 of this Act made by the surviving civil partner.

22

After section 15A insert—

15BRestriction imposed in proceedings under Schedule 7 to the Civil Partnership Act 2004 on application under this Act

1

On making an order under paragraph 9 of Schedule 7 to the Civil Partnership Act 2004 (orders for financial provision, property adjustment and pension-sharing following overseas dissolution etc. of civil partnership) the court, if it considers it just to do so, may, on the application of either of the civil partners, order that the other civil partner shall not on the death of the applicant be entitled to apply for an order under section 2 of this Act.

2

In subsection (1) above “the court” means the High Court or, where a county court has jurisdiction by virtue of Part 5 of the Matrimonial and Family Proceedings Act 1984, a county court.

3

Where an order under subsection (1) above has been made with respect to one of the civil partners in a case where a civil partnership has been dissolved or annulled, then, on the death of the other civil partner, the court shall not entertain an application under section 2 of this Act made by the surviving civil partner.

4

Where an order under subsection (1) above has been made with respect to one of the civil partners in a case where civil partners have been legally separated, then, if the other civil partner dies while the legal separation is in force, the court shall not entertain an application under section 2 of this Act made by the surviving civil partner.

23

In section 16(1) (power to vary secured periodical payments orders)—

a

after “the Matrimonial Causes Act 1973” insert “or Schedule 5 to the Civil Partnership Act 2004”, and

b

after “that Act” insert “of 1973 or Part 11 of that Schedule”.

24

In section 17(4) (meaning of “maintenance agreement”)—

a

for “entered into a marriage” substitute “formed a marriage or civil partnership”,

b

after “of the parties to that marriage” insert “or of the civil partners”, and

c

after “marriage” (in the third and fourth places) insert “or civil partnership”.

25

After section 18 insert—

18AAvailability of court’s powers under this Act in applications under paragraphs 60 and 73 of Schedule 5 to the Civil Partnership Act 2004

1

Where—

a

a person against whom a secured periodical payments order was made under Schedule 5 to the Civil Partnership Act 2004 has died and an application is made under paragraph 60 of that Schedule for the variation or discharge of that order or for the revival of the operation of any suspended provision of the order, or

b

a party to a maintenance agreement within the meaning of Part 13 of that Schedule has died, the agreement being one which provides for the continuation of payments under the agreement after the death of one of the parties, and an application is made under paragraph 73 of that Schedule for the alteration of the agreement under paragraph 69 of that Schedule,

the court shall have power to direct that the application made under paragraph 60 or 73 of that Schedule shall be deemed to have been accompanied by an application for an order under section 2 of this Act.

2

Where the court gives a direction under subsection (1) above it shall have power, in the proceedings on the application under paragraph 60 or 73 of that Schedule, to make any order which the court would have had power to make under the provisions of this Act if the application under that paragraph had been made jointly with an application for an order under section 2 of this Act; and the court shall have power to give such consequential directions as may be necessary for enabling the court to exercise any of the powers available to the court under this Act in the case of an application for an order under section 2.

3

Where an order made under section 15ZA(1) of this Act is in force with respect to a civil partner, the court shall not give a direction under subsection (1) above with respect to any application made under paragraph 60 or 73 of that Schedule by that civil partner on the death of the other civil partner.

26

1

Amend section 19 (effect, duration and form of orders) as follows.

2

In subsection (2)(a), for “former husband or former wife” substitute “former spouse or former civil partner”.

3

In subsection (2), after paragraph (b) insert

or

c

an applicant who was the civil partner of the deceased in a case where, at the date of death, a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force in relation to their civil partnership and the separation was continuing,

4

In that subsection, in the words after paragraph (b), for “on the remarriage of the applicant” onwards substitute “on the formation by the applicant of a subsequent marriage or civil partnership, except in relation to any arrears due under the order on the date of the formation of the subsequent marriage or civil partnership.”

5

In subsection (3), after “section 15(1)” insert “or 15ZA(1)”.

27

1

Amend section 25 (interpretation) as follows.

2

In subsection (1), in the definition of “former wife” and “former husband”, for ““former wife” or “former husband”” substitute ““former spouse””.

3

In that subsection, before that definition insert—

“former civil partner” means a person whose civil partnership with the deceased was during the lifetime of the deceased either—

a

dissolved or annulled by an order made under the law of any part of the British Islands, or

b

dissolved or annulled in any country or territory outside the British Islands by a dissolution or annulment which is entitled to be recognised as valid by the law of England and Wales;

4

In subsection (4)—

a

before “wife” insert “spouse,” and

b

in paragraph (b), for “entered into a later marriage” substitute “formed a subsequent marriage or civil partnership”.

5

For subsection (5) substitute—

4A

For the purposes of this Act any reference to a civil partner shall be treated as including a reference to a person who in good faith formed a void civil partnership with the deceased unless either—

a

the civil partnership between the deceased and that person was dissolved or annulled during the lifetime of the deceased and the dissolution or annulment is recognised by the law of England and Wales, or

b

that person has during the lifetime of the deceased formed a subsequent civil partnership or marriage.

5

Any reference in this Act to the formation of, or to a person who has formed, a subsequent marriage or civil partnership includes (as the case may be) a reference to the formation of, or to a person who has formed, a marriage or civil partnership which is by law void or voidable.

5A

The formation of a marriage or civil partnership shall be treated for the purposes of this Act as the formation of a subsequent marriage or civil partnership, in relation to either of the spouses or civil partners, notwithstanding that the previous marriage or civil partnership of that spouse or civil partner was void or voidable.

6

After subsection (6) insert—

6A

Any reference in this Act to an order made under, or under any provision of, the Civil Partnership Act 2004 shall be construed as including a reference to anything which is deemed to be an order made (as the case may be) under that Act or provision.

SCHEDULE 5Financial relief in the High Court or a county court etc.

Section 72(1)

Part 1Financial provision in connection with dissolution, nullity or separation

1Circumstances in which orders under this Part may be made

1

The court may make any one or more of the orders set out in paragraph 2(1)—

a

on making a dissolution, nullity or separation order, or

b

at any time afterwards.

2

The court may make any one or more of the orders set out in paragraph 2(1)(d), (e) and (f)—

a

in proceedings for a dissolution, nullity or separation order, before making the order;

b

if proceedings for a dissolution, nullity or separation order are dismissed after the beginning of the trial, either straightaway or within a reasonable period after the dismissal.

3

The power of the court to make an order under sub-paragraph (1) or (2)(a) in favour of a child of the family is exercisable from time to time.

4

If the court makes an order in favour of a child under sub-paragraph (2)(b), it may from time to time make a further order in the child’s favour of any of the kinds set out in paragraph 2(1)(d), (e) or (f).

2The orders: periodical and secured periodical payments and lump sums

1

The orders are—

a

an order that either civil partner must make to the other such periodical payments for such term as may be specified;

b

an order that either civil partner must secure to the other, to the satisfaction of the court, such periodical payments for such term as may be specified;

to a child of the family.

2

“Specified” means specified in the order.

3Particular provision that may be made by lump sum orders

1

An order under this Part requiring one civil partner to pay the other a lump sum may be made for the purpose of enabling the other civil partner to meet any liabilities or expenses reasonably incurred by the other in maintaining—

a

himself or herself, or

b

a child of the family,

before making an application for an order under this Part in his or her favour.

2

An order under this Part requiring a lump sum to be paid to or for the benefit of a child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of the child before making an application for an order under this Part to be met.

3

An order under this Part for the payment of a lump sum may—

a

provide for its payment by instalments of such amount as may be specified, and

b

require the payment of the instalments to be secured to the satisfaction of the court.

4

Sub-paragraphs (1) to (3) do not restrict the powers to make the orders set out in paragraph 2(1)(c) and (f).

5

If the court—

a

makes an order under this Part for the payment of a lump sum, and

b

directs that—

i

payment of the sum or any part of it is to be deferred, or

ii

the sum or any part of it is to be paid by instalments,

it may provide for the deferred amount or the instalments to carry interest at such rate as may be specified from such date as may be specified until the date when payment of it is due.

6

A date specified under sub-paragraph (5) must not be earlier than the date of the order.

7

“Specified” means specified in the order.

4When orders under this Part may take effect

the civil partners and the children of the family, or

ii

either or any of them,

a relevant settlement;

d

an order extinguishing or reducing the interest of either of the civil partners under a relevant settlement.

2

The court may make a property adjustment order under sub-paragraph (1)(c) even though there are no children of the family.

3

In this paragraph—

“entitled” means entitled in possession or reversion,

“relevant settlement” means, in relation to a civil partnership, a settlement made, during its subsistence or in anticipation of its formation, on the civil partners including one made by will or codicil, but not including one in the form of a pension arrangement (within the meaning of Part 4), and

“specified” means specified in the order.

8When property adjustment orders may take effect

1

If a property adjustment order is made on or after making a dissolution or nullity order, neither the property adjustment order nor any settlement made under it takes effect unless the dissolution or nullity order has been made final.

2

This paragraph does not affect the power to give a direction under paragraph 76 (settlement of instrument by conveyancing counsel).

9Restrictions on making property adjustment orders

The power to make a property adjustment order under paragraph 7(1)(a) is subject to paragraph 49(1) and (5) (restrictions on making orders in favour of children who have reached 18).

Part 3Sale of property orders

10Circumstances in which sale of property orders may be made

1

The court may make a sale of property order—

a

on making —

i

under Part 1, a secured periodical payments order or an order for the payment of a lump sum, or

ii

a property adjustment order, or

b

at any time afterwards.

2

In this Schedule “sale of property order” means a sale of property order under this Part.

11Sale of property orders

1

A sale of property order is an order for the sale of such property as may be specified, being property in which, or in the proceeds of sale of which, either or both of the civil partners has or have a beneficial interest, either in possession or reversion.

2

A sale of property order may contain such consequential or supplementary provisions as the court thinks fit.

3

A sale of property order may in particular include—

on the formation of a subsequent civil partnership or marriage by the civil partner.

14Protection of third parties

1

Sub-paragraphs (2) and (3) apply if—

a

a civil partner has a beneficial interest in any property, or in the proceeds of sale of any property, and

b

another person (“A”) who is not the other civil partner also has a beneficial interest in the property or the proceeds.

2

Before deciding whether to make a sale of property order in relation to the property, the court must give A an opportunity to make representations with respect to the order.

3

Any representations made by A are included among the circumstances to which the court is required to have regard under paragraph 20.

Part 4Pension sharing orders on or after dissolution or nullity order

15Circumstances in which pension sharing orders may be made

1

The court may make a pension sharing order—

In sub-paragraph (4)—

“occupational pension scheme” has the same meaning as in the Pension Schemes Act 1993 (c. 48);

“personal pension scheme” has the same meaning as in the 1993 Act;

“retirement annuity contract” means a contract or scheme approved under Chapter 3 of Part 14 of the Income and Corporation Taxes Act 1988 (c. 1).

17Pension sharing orders: apportionment of charges

If a pension sharing order relates to rights under a pension arrangement, the court may include in the order provision about the apportionment between the civil partners of any charge under—

a

section 41 of the 1999 Act (charges in respect of pension sharing costs), or

b

corresponding Northern Ireland legislation.

18Restrictions on making of pension sharing orders

1

A pension sharing order may not be made in relation to a pension arrangement which—

a

is the subject of a pension sharing order in relation to the civil partnership, or

b

has been the subject of pension sharing between the civil partners.

2

A pension sharing order may not be made in relation to shareable state scheme rights if—

a

such rights are the subject of a pension sharing order in relation to the civil partnership, or

b

such rights have been the subject of pension sharing between the civil partners.

3

A pension sharing order may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of Part 6 which relates to benefits or future benefits to which that person is entitled under the pension arrangement.

19When pension sharing orders may take effect

1

A pension sharing order is not to take effect unless the dissolution or nullity order on or after which it is made has been made final.

2

No pension sharing order may be made so as to take effect before the end of such period after the making of the order as may be prescribed by regulations made by the Lord Chancellor.

3

The power to make regulations under sub-paragraph (2) is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

Part 5Matters to which court is to have regard under Parts 1 to 4

20General

The court in deciding—

a

whether to exercise its powers under—

i

Part 1 (financial provision on dissolution etc.),

ii

Part 2 (property adjustment orders),

iii

Part 3 (sale of property orders), or

iv

any provision of Part 4 (pension sharing orders) other than paragraph 17 (apportionment of charges), and

b

if so, in what way,

must have regard to all the circumstances of the case, giving first consideration to the welfare, while under 18, of any child of the family who has not reached 18.

21Particular matters to be taken into account when exercising powers in relation to civil partners

1

This paragraph applies to the exercise by the court in relation to a civil partner of its powers under—

a

Part 1 (financial provision on dissolution etc.) by virtue of paragraph 2(1)(a), (b) or (c),

b

Part 2 (property adjustment orders),

c

Part 3 (sale of property orders), or

d

Part 4 (pension sharing orders).

2

The court must in particular have regard to—

a

the income, earning capacity, property and other financial resources which each civil partner—

i

has, or

ii

is likely to have in the foreseeable future,

including, in the case of earning capacity, any increase in that capacity which it would in the opinion of the court be reasonable to expect a civil partner in the civil partnership to take steps to acquire;

b

the financial needs, obligations and responsibilities which each civil partner has or is likely to have in the foreseeable future;

c

the standard of living enjoyed by the family before the breakdown of the civil partnership;

d

the age of each civil partner and the duration of the civil partnership;

e

any physical or mental disability of either of the civil partners;

f

the contributions which each civil partner has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

g

the conduct of each civil partner, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

h

in the case of proceedings for a dissolution or nullity order, the value to each civil partner of any benefit which, because of the dissolution or annulment of the civil partnership, that civil partner will lose the chance of acquiring.

a secured periodical payments order,

in favour of one of the civil partners (“A”), it must in particular consider whether it would be appropriate to require the payments to be made or secured only for such term as would in its opinion be sufficient to enable A to adjust without undue hardship to the termination of A’s financial dependence on the other civil partner.

4

If—

a

on or after the making of a dissolution or nullity order, an application is made by one of the civil partners for a periodical payments or secured periodical payments order in that civil partner’s favour, but

b

the court considers that no continuing obligation should be imposed on either civil partner to make or secure periodical payments in favour of the other,

the court may dismiss the application with a direction that the applicant is not entitled to make any future application in relation to that civil partnership for an order under Part 1 by virtue of paragraph 2(1)(a) or (b).

Part 6Making of Part 1 orders having regard to pension benefits

24Pension benefits to be included in matters to which court is to have regard

1

The matters to which the court is to have regard under paragraph 21(2)(a) include any pension benefits under a pension arrangement or by way of pension which a civil partner has or is likely to have; and, accordingly, in relation to any pension benefits paragraph 21(2)(a)(ii) has effect as if “in the foreseeable future” were omitted.

2

The matters to which the court is to have regard under paragraph 21(2)(h) include any pension benefits which, because of the making of a dissolution or nullity order, a civil partner will lose the chance of acquiring.

3

“Pension benefits” means—

a

benefits under a pension arrangement, or

b

benefits by way of pension (whether under a pension arrangement or not).

25Provisions applying where pension benefits taken into account in decision to make Part 1 order

1

This paragraph applies if, having regard to any benefits under a pension arrangement, the court decides to make an order under Part 1.

2

To the extent to which the Part 1 order is made having regard to any benefits under a pension arrangement, it may require the person responsible for the pension arrangement, if at any time any payment in respect of any benefits under the arrangement becomes due to the civil partner with pension rights, to make a payment for the benefit of the other civil partner.

3

The Part 1 order must express the amount of any payment required to be made by virtue of sub-paragraph (2) as a percentage of the payment which becomes due to the civil partner with pension rights.

4

Any such payment by the person responsible for the arrangement—

a

discharges so much of his liability to the civil partner with pension rights as corresponds to the amount of the payment, and

b

is to be treated for all purposes as a payment made by the civil partner with pension rights in or towards the discharge of that civil partner’s liability under the order.

5

If the civil partner with pension rights has a right of commutation under the arrangement, the Part 1 order may require that civil partner to exercise it to any extent.

6

This paragraph applies to any payment due in consequence of commutation in pursuance of the Part 1 order as it applies to other payments in respect of benefits under the arrangement.

7

The power conferred by sub-paragraph (5) may not be exercised for the purpose of commuting a benefit payable to the civil partner with pension rights to a benefit payable to the other civil partner.

8

The powers conferred by sub-paragraphs (2) and (5) may not be exercised in relation to a pension arrangement which—

a

is the subject of a pension sharing order in relation to the civil partnership, or

b

has been the subject of pension sharing between the civil partners.

26Pensions: lump sums

1

This paragraph applies if the benefits which the civil partner with pension rights has or is likely to have under a pension arrangement include any lump sum payable in respect of that civil partner’s death.

2

The court’s power under Part 1 to order a civil partner to pay a lump sum to the other civil partner includes the power to make by the order any provision in sub-paragraph (3) to (5).

3

If the person responsible for the pension arrangement has power to determine the person to whom the sum, or any part of it, is to be paid, the court may require him to pay the whole or part of that sum, when it becomes due, to the other civil partner.

4

If the civil partner with pension rights has power to nominate the person to whom the sum, or any part of it, is to be paid, the court may require the civil partner with pension rights to nominate the other civil partner in respect of the whole or part of that sum.

5

In any other case, the court may require the person responsible for the pension arrangement in question to pay the whole or part of that sum, when it becomes due, for the benefit of the other civil partner instead of to the person to whom, apart from the order, it would be paid.

6

Any payment by the person responsible for the arrangement under an order made under Part 1 made by virtue of this paragraph discharges so much of his liability in respect of the civil partner with pension rights as corresponds to the amount of the payment.

7

The powers conferred by this paragraph may not be exercised in relation to a pension arrangement which—

a

is the subject of a pension sharing order in relation to the civil partnership, or

b

has been the subject of pension sharing between the civil partners.

27Pensions: supplementary

If—

a

a Part 1 order made by virtue of paragraph 25 or 26 imposes any requirement on the person responsible for a pension arrangement (“the first arrangement”),

b

the civil partner with pension rights acquires rights under another pension arrangement (“the new arrangement”) which are derived (directly or indirectly) from the whole of that civil partner’s rights under the first arrangement, and

c

the person responsible for the new arrangement has been given notice in accordance with regulations made by the Lord Chancellor,

the Part 1 order has effect as if it had been made instead in respect of the person responsible for the new arrangement.

28Regulations

1

The Lord Chancellor may by regulations—

a

make provision, in relation to any provision of paragraph 25 or 26 which authorises the court making a Part 1 order to require the person responsible for a pension arrangement to make a payment for the benefit of the other civil partner, as to—

i

the person to whom, and

ii

the terms on which,

the payment is to be made;

b

make provision, in relation to payment under a mistaken belief as to the continuation in force of a provision included by virtue of paragraph 25 or 26 in a Part 1 order, about the rights or liabilities of the payer, the payee or the person to whom the payment was due;

c

require notices to be given in respect of changes of circumstances relevant to Part 1 orders which include provision made by virtue of paragraphs 25 and 26;

d

make provision for the person responsible for a pension arrangement to be discharged in prescribed circumstances from a requirement imposed by virtue of paragraph 25 or 26;

e

make provision about calculation and verification in relation to the valuation of—

i

benefits under a pension arrangement, or

ii

shareable state scheme rights (within the meaning of paragraph 16(3)),

for the purposes of the court’s functions in connection with the exercise of any of its powers under this Schedule.

2

Regulations under sub-paragraph (1)(e) may include—

a

provision for calculation or verification in accordance with guidance from time to time prepared by a prescribed person, and

b

provision by reference to regulations under section 30 or 49(4) of the 1999 Act.

3

The power to make regulations under paragraph 27 or this paragraph is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

4

“Prescribed” means prescribed by regulations.

29Interpretation of provisions relating to pensions

1

In this Part “the civil partner with pension rights” means the civil partner who has or is likely to have benefits under a pension arrangement.

2

In this Part “pension arrangement” has the same meaning as in Part 4.

3

In this Part, references to the person responsible for a pension arrangement are to be read in accordance with section 26 of the Welfare Reform and Pensions Act 1999 (c. 30).

Part 7Pension protection fund compensation etc.

30PPF compensation to be included in matters to which court is to have regard

1

The matters to which a court is to have regard under paragraph 21(2)(a) include any PPF compensation to which a civil partner is or is likely to be entitled; and, accordingly, in relation to any PPF compensation paragraph 21(2)(a)(ii) has effect as if “in the foreseeable future” were omitted.

2

The matters to which a court is to have regard under paragraph 21(2)(h) include any PPF compensation which, because of the making of a dissolution or nullity order, a civil partner will lose the chance of acquiring entitlement to.

3

In this Part “PPF compensation” means compensation payable under—

a

Chapter 3 of Part 2 of the Pensions Act 2004 (pension protection), or

b

corresponding Northern Ireland legislation.

references in the order to any pension or lump sum to which the civil partner with pension rights is or may become entitled under the scheme have effect as references to any PPF compensation to which that person is or may become entitled in respect of the pension or lump sum.

32Assumption of responsibility by PPF Board in paragraph 25(5) cases

1

This paragraph applies to an order under Part 1 if—

a

it includes provision made by virtue of paragraph 25(5) which requires the civil partner with pension rights to exercise his right of commutation under an occupational pension scheme to any extent, and

b

before the requirement is complied with the Board has assumed responsibility for the scheme.

2

From the time the trustees or managers of the scheme receive the transfer notice, the order has effect with such modifications as may be prescribed by regulations.

33Lump sums: power to modify paragraph 26 in respect of assessment period

Regulations may modify paragraph 26 in its application to an occupational pension scheme during an assessment period in relation to the scheme.

34Assumption of responsibility by the Board not to affect power of court to vary order etc.

1

This paragraph applies where the court makes, in relation to an occupational pension scheme—

a

a pension sharing order, or

b

an order including provision made by virtue of paragraph 25(2) or (5).

2

If the Board subsequently assumes responsibility for the scheme, that does not affect—

a

the powers of the court under paragraph 51 to vary or discharge the order or to suspend or revive any provision of it;

b

on an appeal, the powers of the appeal court to affirm, reinstate, set aside or vary the order.

Regulations

35

Regulations may make such consequential modifications of any provision of, or made by virtue of, this Schedule as appear to the Lord Chancellor necessary or expedient to give effect to the provisions of this Part.

36

1

In this Part “regulations” means regulations made by the Lord Chancellor.

2

A power to make regulations under this Part is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

37Interpretation

1

In this Part—

“assessment period” means—

an assessment period within the meaning of Part 2 of the Pensions Act 2004 (pension protection), or

an equivalent period under corresponding Northern Ireland legislation;

“the Board” means the Board of the Pension Protection Fund;

“the civil partner with pension rights” has the meaning given by paragraph 29(1);

“occupational pension scheme” has the same meaning as in the Pension Schemes Act 1993 (c. 48);

“transfer notice” has the same meaning as in—

has failed to provide reasonable maintenance for the applicant, or

b

has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family.

2

The court must not entertain an application under this paragraph unless—

a

the applicant or the respondent is domiciled in England and Wales on the date of the application,

b

the applicant has been habitually resident there throughout the period of 1 year ending with that date, or

c

the respondent is resident there on that date.

3

If, on an application under this paragraph, it appears to the court that—

a

the applicant or any child of the family to whom the application relates is in immediate need of financial assistance, but

b

it is not yet possible to determine what order, if any, should be made on the application,

the court may make an interim order.

4

If, on an application under this paragraph, the applicant satisfies the court of a ground mentioned in sub-paragraph (1), the court may make one or more of the orders set out in paragraph 41.

40Interim orders

An interim order is an order requiring the respondent to make to the applicant, until the determination of the application, such periodical payments as the court thinks reasonable.

41Orders that may be made where failure to maintain established

1

The orders are—

a

an order that the respondent must make to the applicant such periodical payments for such term as may be specified;

b

an order that the respondent must secure to the applicant, to the satisfaction of the court, such periodical payments for such term as may be specified;

c

an order that the respondent must pay to the applicant such lump sum as may be specified;

d

an order that the respondent must make such periodical payments for such term as may be specified—

i

if the child of the family to whom the application relates is not the child of the respondent, the matters mentioned in paragraph 22(3).

4

Paragraph 21(2)(c) (as it applies by virtue of paragraph 22(2)(e)) has effect as if for the reference in it to the breakdown of the civil partnership there were substituted a reference to—

a

the failure to provide, or

b

the failure to make a proper contribution towards,

reasonable maintenance for the child of the family to whom the application relates.

45Restrictions on making orders under this Part

The power to make an order under paragraph 41(1)(d), (e) or (f) is subject to paragraph 49(1) and (5) (restrictions on orders in favour of children who have reached 18).

Part 10Commencement of certain proceedings and duration of certain orders

46Commencement of proceedings for ancillary relief, etc.

1

Sub-paragraph (2) applies if an application for a dissolution, nullity or separation order has been made.

2

Subject to sub-paragraph (3), proceedings for—

a

an order under Part 1 (financial provision on dissolution etc.),

b

a property adjustment order, or

c

an order under Part 8 (maintenance pending outcome of dissolution, nullity or separation proceedings),

may be begun (subject to and in accordance with rules of court) at any time after the presentation of the application.

3

Rules of court may provide, in such cases as may be prescribed by the rules, that—

a

an application for any such relief as is mentioned in sub-paragraph (2) must be made in the application or response, and

b

an application for any such relief which—

i

is not so made, or

ii

is not made until after the end of such period following the presentation of the application or filing of the response as may be so prescribed,

may be made only with the leave of the court.

If—

a

a periodical payments or secured periodical payments order in favour of a civil partner is made otherwise than on or after the making of a dissolution or nullity order, and

b

the civil partnership is subsequently dissolved or annulled but the order continues in force,

the order ceases to have effect (regardless of anything in it) on the formation of a subsequent civil partnership or marriage by that civil partner, except in relation to any arrears due under it on the date of its formation.

48Subsequent civil partnership or marriage

If after the making of a dissolution or nullity order one of the civil partners forms a subsequent civil partnership or marriage, that civil partner is not entitled to apply, by reference to the dissolution or nullity order, for—

a

an order under Part 1 in that civil partner’s favour, or

b

a property adjustment order,

against the other civil partner in the dissolved or annulled civil partnership.

49Duration of continuing orders in favour of children, and age limit on making certain orders in their favour

1

Subject to sub-paragraph (5)—

a

no order under Part 1,

b

no property adjustment order made by virtue of paragraph 7(1)(a) (transfer of property), and

c

whether or not the child also is, will be or would be in gainful employment, or

b

c

an order under Part 8 (maintenance pending outcome of dissolution proceedings etc.);

d

an interim order under Part 9;

e

an order made under Part 1 by virtue of paragraph 3(3) or under Part 9 by virtue of paragraph 42(2) (lump sum by instalments);

f

a deferred order made under Part 1 by virtue of paragraph 2(1)(c) (lump sum for civil partner) which includes provision made by virtue of—

i

paragraph 25(2), or

ii

paragraph 26,

(provision in respect of pension rights);

g

a property adjustment order made on or after the making of a separation order by virtue of paragraph 7(1)(b), (c) or (d) (order for settlement or variation of settlement);

h

a sale of property order;

i

a pension sharing order made before the dissolution or nullity order has been made final.

2

If the court has made an order referred to in sub-paragraph (1)(f)(ii), this Part ceases to apply to the order on the death of either of the civil partners.

3

The powers exercisable by the court under this Part in relation to an order are also exercisable in relation to any instrument executed in pursuance of the order.

51Powers to vary, discharge, suspend or revive order

1

If the court has made an order to which this Part applies, it may—

a

vary or discharge the order,

b

suspend any provision of it temporarily, or

c

revive the operation of any provision so suspended.

2

Sub-paragraph (1) is subject to the provisions of this Part and paragraph 47(5).

52Power to remit arrears

1

If the court has made an order referred to in paragraph 50(1)(a), (b), (c) or (d), it may remit the payment of any arrears due under the order or under any part of the order.

2

Sub-paragraph (1) is subject to the provisions of this Part.

Additional powers on discharging or varying a periodical or secured periodical payments order after dissolution of civil partnership

53

1

Sub-paragraph (2) applies if, after the dissolution of a civil partnership, the court—

a

discharges a periodical payments order or secured periodical payments order made in favour of a civil partner, or

b

varies such an order so that payments under the order are required to be made or secured only for such further period as is determined by the court.

2

The court may make supplemental provision consisting of any of the following—

a

an order for the payment of a lump sum in favour of one of the civil partners;

b

one or more property adjustment orders in favour of one of the civil partners;

c

one or more pension sharing orders;

d

a direction that the civil partner in whose favour the original order discharged or varied was made is not entitled to make any further application for—

i

a periodical payments or secured periodical payments order, or

ii

an extension of the period to which the original order is limited by any variation made by the court.

3

The power under sub-paragraph (2) is in addition to any power the court has apart from that sub-paragraph.

54

1

An order for the payment of a lump sum under paragraph 53 may—

a

provide for the payment of it by instalments of such amount as may be specified, and

b

require the payment of the instalments to be secured to the satisfaction of the court.

2

Sub-paragraphs (5) and (6) of paragraph 3 (interest on deferred instalments) apply where the court makes an order for the payment of a lump sum under paragraph 53 as they apply where it makes such an order under Part 1.

3

If under paragraph 53 the court makes more than one property adjustment order in favour of the same civil partner, each of those orders must fall within a different paragraph of paragraph 7(1) (types of property adjustment orders).

4

Part 3 (orders for the sale of property) and paragraph 76 (direction for settlement of instrument) apply where the court makes a property adjustment order under paragraph 53 as they apply where it makes any other property adjustment order.

5

Paragraph 18 (restrictions on making of pension sharing order) applies in relation to a pension sharing order under paragraph 53 as it applies in relation to any other pension sharing order.

55Variation etc. of periodical or secured periodical payments orders made in cases of failure to maintain

1

An application for the variation under paragraph 51 of a periodical payments order or secured periodical payments order made under Part 9 in favour of a child may, if the child has reached 16, be made by the child himself.

2

Sub-paragraph (3) applies if a periodical payments order made in favour of a child under Part 9 ceases to have effect—

a

on the date on which the child reaches 16, or

b

at any time after that date but before or on the date on which the child reaches 18.

3

If, on an application made to the court for an order under this sub-paragraph, it appears to the court that—

a

the child is, will be or, if an order were made under this sub-paragraph, would be—

i

receiving instruction at an educational establishment, or

ii

undergoing training for a trade, profession or vocation,

whether or not the child also is, will be or would be in gainful employment, or

b

there are special circumstances which justify the making of an order under this sub-paragraph,

the court may by order revive the order mentioned in sub-paragraph (2) from such date as it may specify.

4

A date specified under sub-paragraph (3) must not be earlier than the date of the application under that sub-paragraph.

5

If under sub-paragraph (3) the court revives an order it may exercise its power under paragraph 51 in relation to the revived order.

Variation etc. of property adjustment and pension sharing orders

56

The court must not exercise the powers conferred by this Part in relation to a property adjustment order falling within paragraph 7(1)(b), (c) or (d) (order for settlement or for variation of settlement) except on an application made in proceedings—

a

for the rescission of the separation order by reference to which the property adjustment order was made, or

b

for a dissolution order in relation to the civil partnership.

57

1

In relation to a pension sharing order which is made at a time before the dissolution or nullity order has been made final—

a

the powers conferred by this Part (by virtue of paragraph 50(1)(i)) may be exercised—

i

only on an application made before the pension sharing order has or, but for paragraph (b), would have taken effect, and

ii

only if, at the time when the application is made, the dissolution or nullity order has not been made final, and

b

an application made in accordance with paragraph (a) prevents the pension sharing order from taking effect before the application has been dealt with.

2

No variation of a pension sharing order is to be made so as to take effect before the order is made final.

3

The variation of a pension sharing order prevents the order taking effect before the end of such period after the making of the variation as may be prescribed by regulations made by the Lord Chancellor.

4

The power to make regulations under sub-paragraph (3) is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

58

1

Sub-paragraphs (2) and (3)—

a

In considering what further period will be sufficient, the court must, if the civil partnership has been dissolved, take into account any proposed exercise by it of its powers under paragraph 53.

6

If the civil partner against whom the order was made has died, the circumstances of the case also include the changed circumstances resulting from that civil partner’s death.

60Variation of secured periodical payments order where person liable has died

1

This paragraph applies if the person liable to make payments under a secured periodical payments order has died.

2

Subject to sub-paragraph (3), an application under this Part relating to the order (and to any sale of property order which requires the proceeds of sale of property to be used for securing those payments) may be made by—

a

the person entitled to payments under the periodical payments order, or

b

the personal representatives of the deceased person.

3

No such application may be made without the leave of the court after the end of 6 months from the date on which representation in regard to the estate of that person is first taken out.

4

The personal representatives of the person who has died are not liable for having distributed any part of the estate of the deceased after the end of the 6 month period on the ground that they ought to have taken into account the possibility that the court might allow an application under this paragraph to be made after that period by the person entitled to payments under the order.

5

Sub-paragraph (4) does not affect any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this paragraph.

6

In considering for the purposes of sub-paragraph (3) the question when representation was first taken out—

a

a grant limited to settled land or to trust property is to be disregarded, and

b

a grant limited to real estate or to personal estate is to be disregarded unless a grant limited to the remainder of the estate has previously been made or is made at the same time.

Power to direct when variation etc. is to take effect

61

1

If the court, in exercise of its powers under this Part, decides—

a

to vary, or

b

to discharge,

a periodical payments or secured periodical payments order, it may direct that the variation or discharge is not to take effect until the end of such period as may be specified in the order.

2

Sub-paragraph (1) is subject to paragraph 47(1) and (6).

62

1

If—

a

a periodical payments or secured periodical payments order in favour of more than one child (“the order”) is in force,

b

the order requires payments specified in it to be made to or for the benefit of more than one child without apportioning those payments between them,

c

a maintenance calculation (“the calculation”) is made with respect to one or more, but not all, of the children with respect to whom those payments are to be made, and

d

an application is made, before the end of the period of 6 months beginning with the date on which the calculation was made, for the variation or discharge of the order,

the court may, in exercise of its powers under this Part to vary or discharge the order, direct that the variation or discharge is to take effect from the date on which the calculation took effect or any later date.

2

If—

a

an order (“the child order”) of a kind prescribed for the purposes of section 10(1) of the Child Support Act 1991 (c. 48) is affected by a maintenance calculation,

b

on the date on which the child order became so affected there was in force a periodical payments or secured periodical payments order (“the civil partner’s order”) in favour of a civil partner having the care of the child in whose favour the child order was made, and

c

an application is made, before the end of the period of 6 months beginning with the date on which the maintenance calculation was made, for the civil partner’s order to be varied or discharged,

the court may, in exercise of its powers under this Part to vary or discharge the civil partner’s order, direct that the variation or discharge is to take effect from the date on which the child order became so affected or any later date.

3

For the purposes of sub-paragraph (2), an order is affected if it ceases to have effect or is modified by or under section 10 of the 1991 Act.

4

Sub-paragraphs (1) and (2) do not affect any other power of the court to direct that the variation of discharge of an order under this Part is to take effect from a date earlier than that on which the order for variation or discharge was made.

5

In this paragraph “maintenance calculation” has the same meaning as it has in the 1991 Act by virtue of section 54 of the 1991 Act as read with any regulations in force under that section.

Part 12Arrears and repayments

63Payment of certain arrears unenforceable without the leave of the court

1

This paragraph applies if any arrears are due under—

a

an order under Part 1 (financial provision on dissolution etc.),

b

an order under Part 8 (maintenance pending outcome of dissolution, nullity or separation proceedings), or

c

an order under Part 9 (failure to maintain),

and the arrears became due more than 12 months before proceedings to enforce the payment of them are begun.

2

A person is not entitled to enforce through the High Court or any county court the payment of the arrears without the leave of that court.

3

The court hearing an application for the grant of leave under this paragraph may—

a

refuse leave,

b

grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment or the making of payment by instalments) as that court thinks proper, or

c

remit the payment of the arrears or of any part of them.

4

An application for the grant of leave under this paragraph must be made in such manner as may be prescribed by rules of court.

the variation or discharge of the order listed in sub-paragraph (2), or

ii

leave to enforce, or the enforcement of, the payment of arrears under that order, but

b

if not made in such proceedings, must be made to a county court;

and accordingly references in this paragraph to the court are references to the High Court or a county court, as the circumstances require.

8

The jurisdiction conferred on a county court by this paragraph is exercisable even though, because of the amount claimed in the application, the jurisdiction would not but for this sub-paragraph be exercisable by a county court.

65Orders for repayment after cessation of order because of subsequent civil partnership etc.

1

Sub-paragraphs (3) and (4) apply if—

a

a periodical payments or secured periodical payments order in favour of a civil partner (“R”) has ceased to have effect because of the formation of a subsequent civil partnership or marriage by R, and

b

the district judge of a county court, or

c

the designated officer for a magistrates’ court,

to whom a person makes payments in compliance with the order.

Part 13Consent orders and maintenance agreements

66Consent orders for financial relief

1

Regardless of anything in the preceding provisions of this Schedule, on an application for a consent order for financial relief, the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of such information supplied with the application as is required by rules of court.

2

Sub-paragraph (1) applies to an application for a consent order varying or discharging an order for financial relief as it applies to an application for an order for financial relief.

3

In this paragraph—

“consent order”, in relation to an application for an order, means an order in the terms applied for to which the respondent agrees;

by inserting in it financial arrangements for the benefit of one of the parties to the agreement or of a child of the family,

as appear to the court to be just having regard to all the circumstances, including, if relevant, the matters mentioned in paragraph 22(3).

5

The effect of the order is that the agreement is to be treated as if any alteration made by the order had been made by agreement between the partners and for valuable consideration.

6

The power to make an order under this paragraph is subject to paragraphs 70 and 71.

70Restrictions on applications to and orders by magistrates’ courts under paragraph 69

1

A magistrates’ court must not entertain an application under paragraph 69(1) unless—

a

both the parties to the agreement are resident in England and Wales, and

b

the court acts in, or is authorised by the Lord Chancellor to act for, a local justice area in which at least one of the parties is resident.

2

A magistrates’ court must not make any order on such an application other than—

a

if the agreement includes no provision for periodical payments by either of the parties, an order inserting provision for the making by one of the parties of periodical payments for the maintenance of—

i

the other party, or

ii

any child of the family;

b

if the agreement includes provision for the making by one of the parties of periodical payments, an order increasing or reducing the rate of, or terminating, any of those payments.

71Provisions relating to periodical and secured periodical payments: duration

1

If a court decides to make an order under paragraph 69 altering an agreement—

a

by inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of the other party, or

b

b

the additional payments attributable to the increase are to be made or secured for the benefit of the child,

must apply paragraph 49(2) to (5) (age limits) as if the order in question were a periodical payments or secured periodical payments order in favour of the child.

72Saving

Nothing in paragraphs 68 to 71 affects—

a

any power of a court before which any proceedings between the parties to a maintenance agreement are brought under any other enactment (including a provision of this Schedule) to make an order containing financial arrangements, or

b

any right of either party to apply for such an order in such proceedings.

73Alteration of agreements by court after death of one party

1

This paragraph applies if—

a

a maintenance agreement provides for the continuation of payments under the agreement after the death of one of the parties, and

b

that party (“A”) dies domiciled in England and Wales.

2

Subject to sub-paragraph (4), the surviving party or A’s personal representatives may apply to the High Court or a county court for an order under paragraph 69.

3

If a maintenance agreement is altered by a court on an application made under sub-paragraph (2), the same consequences follow as if the alteration had been made immediately before the death by agreement between the parties and for valuable consideration.

4

An application under this paragraph may not, without the leave of the High Court or a county court, be made after the end of 6 months from the date on which representation in regard to A’s estate is first taken out.

5

A’s personal representatives are not liable for having distributed any part of A’s estate after the end of the 6 month period on the ground that they ought to have taken into account the possibility that a court might allow an application by virtue of this paragraph to be made by the surviving party after that period.

6

Sub-paragraph (5) does not affect any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this paragraph.

7

Paragraph 60(6) applies for the purposes of sub-paragraph (4) as it applies for the purposes of paragraph 60(3).

Part 14Miscellaneous and supplementary

Avoidance of transactions intended to prevent or reduce financial relief

74

1

This paragraph applies if proceedings for relief (“financial relief”) are brought by one person (“A”) against another (“B”) under Part 1, 2, 4, 8, 9, or 11 (other than paragraph 60(2)), or paragraph 69.

2

If the court is satisfied, on an application by A, that B is, with the intention of defeating A’s claim for financial relief, about to—

a

make any disposition, or

b

transfer out of the jurisdiction or otherwise deal with any property,

it may make such order as it thinks fit for restraining B from doing so or otherwise for protecting the claim.

3

If the court is satisfied, on an application by A, that—

a

B has, with the intention of defeating A’s claim for financial relief, made a reviewable disposition, and

b

if the disposition were set aside, financial relief or different financial relief would be granted to A,

it make an order setting aside the disposition.

4

If the court is satisfied, on an application by A in a case where an order has been obtained by A against B under any of the provisions mentioned in sub-paragraph (1), that B has, with the intention of defeating A’s claim for financial relief, made a reviewable disposition, it may make an order setting aside the disposition.

5

An application for the purposes of sub-paragraph (3) must be made in the proceedings for the financial relief in question.

6

If the court makes an order under sub-paragraph (3) or (4) setting aside a disposition it must give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the making of any payments or the disposal of any property).

75

1

Any reference in paragraph 74 to defeating A’s claim for financial relief is to—

a

a transfer of property,

had to be made in order to comply with a property adjustment order does not prevent the settlement or transfer from being a transaction in respect of which an order may be made under section 339 or 340 of the Insolvency Act 1986 (c. 45) (transfers at an undervalue and preferences).

78Payments, etc., under order made in favour of person suffering from mental disorder

1

This paragraph applies if—

a

the court makes an order under this Schedule requiring—

i

payments (including a lump sum payment) to be made, or

ii

property to be transferred,

to a civil partner, and

b

the court is satisfied that the person in whose favour the order is made is incapable, because of mental disorder, of managing and administering his or her property and affairs.

2

“Mental disorder” has the same meaning as in the Mental Health Act 1983 (c. 20).

3

Subject to any order, direction or authority made or given in relation to that person under Part 8 of the 1983 Act, the court may order the payments to be made or, as the case may be, the property to be transferred to such persons having charge of that person as the court may direct.

79Appeals relating to pension sharing orders which have taken effect

1

Sub-paragraphs (2) and (3) apply if an appeal against a pension sharing order is begun on or after the day on which the order takes effect.

2

If the pension sharing order relates to a person’s rights under a pension arrangement, the appeal court may not set aside or vary the order if the person responsible for the pension arrangement has acted to his detriment in reliance on the order taking effect.

3

If the pension sharing order relates to a person’s shareable state scheme rights, the appeal court may not set aside or vary the order if the Secretary of State has acted to his detriment in reliance on the taking effect of the order.

4

In determining for the purposes of sub-paragraph (2) or (3) whether a person has acted to his detriment in reliance on the taking effect of the order, the appeal court may disregard any detriment which in its opinion is insignificant.

5

Where sub-paragraph (2) or (3) applies, the appeal court may make such further orders (including one or more pension sharing orders) as it thinks fit for the purpose of putting the parties in the position it considers appropriate.

6

Paragraph 19 only applies to a pension sharing order under this paragraph if the decision of the appeal court can itself be the subject of an appeal.

7

In sub-paragraph (2), the reference to the person responsible for the pension arrangement is to be read in accordance with paragraph 29(3).

80Interpretation

1

References in this Schedule to—

a

periodical payments orders,

b

secured periodical payments orders, and

c

orders for the payment of a lump sum,

has deserted the applicant.

2

The power of the court under sub-paragraph (1) is subject to the following provisions of this Schedule.

2The orders: periodical and secured periodical payments and lump sums

1

The orders are—

a

an order that the respondent must make to the applicant such periodical payments for such term as may be specified;

b

an order that the respondent must pay to the applicant such lump sum as may be specified;

c

an order that the respondent must make—

i

to the applicant for the benefit of a child of the family to whom the application relates, or

ii

to a child of the family to whom the application relates;

such periodical payments for such term as may be specified;

d

an order that the respondent must pay such lump sum as may be specified—

i

to the applicant for the benefit of a child of the family to whom the application relates, or

ii

to such a child of the family to whom the application relates.

2

The amount of a lump sum required to be paid under sub-paragraph (1)(b) or (d) must not exceed—

a

£1,000, or

b

such larger amount as the Lord Chancellor may from time to time by order fix for the purposes of this sub-paragraph.

3

The power to make an order under sub-paragraph (2) is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

4

“Specified” means specified in the order.

3Particular provision that may be made by lump sum orders

1

An order under this Part for the payment of a lump sum may be made for the purpose of enabling any liability or expenses reasonably incurred in maintaining the applicant or any child of the family to whom the application relates before the making of the order to be met.

2

Sub-paragraph (1) does not restrict the power to make the orders set out in paragraph 2(1)(b) and (d).

4Matters to which court is to have regard in exercising its powers under this Part—general

If an application is made for an order under this Part, the court, in deciding—

a

whether to exercise its powers under this Part, and

b

if so, in what way,

must have regard to all the circumstances of the case, giving first consideration to the welfare while under 18 of any child of the family who has not reached 18.

5Particular matters to be taken into account when exercising powers in relation to civil partners

1

This paragraph applies in relation to the exercise by the court of its power to make an order by virtue of paragraph 2(1)(a) or (b).

2

The court must in particular have regard to—

a

the income, earning capacity, property and other financial resources which each civil partner—

i

has, or

ii

is likely to have in the foreseeable future,

b

the financial needs, obligations and responsibilities which each civil partner has or is likely to have in the foreseeable future;

c

the standard of living enjoyed by the civil partners before the occurrence of the conduct which is alleged as the ground of the application;

d

the age of each civil partner and the duration of the civil partnership;

e

any physical or mental disability of either civil partner;

f

g

the conduct of each civil partner, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.

6Particular matters to be taken into account when exercising powers in relation to children

1

This paragraph applies in relation to the exercise by the court of its power to make an order by virtue of paragraph 2(1)(c) or (d).

2

The court must in particular have regard to—

a

the financial needs of the child;

b

the income, earning capacity (if any), property and other financial resources of the child;

c

any physical or mental disability of the child;

d

the standard of living enjoyed by the family before the occurrence of the conduct which is alleged as the ground of the application;

e

the way in which the child was being and in which the civil partners expected the child to be educated or trained;

f

the considerations mentioned in relation to the civil partners in paragraph 5(2)(a) and (b).

3

In relation to the exercise of its power to make an order in favour of a child of the family who is not the respondent’s child, the court must also have regard to—

a

whether the respondent has assumed any responsibility for the child’s maintenance;

b

if so, the extent to which, and the basis on which, the respondent assumed that responsibility and the length of time during which the respondent discharged that responsibility;

c

whether in assuming and discharging that responsibility the respondent did so knowing that the child was not the respondent’s child;

d

the liability of any other person to maintain the child.

7Reconciliation

1

If an application is made for an order under this Part—

Either civil partner may apply to a magistrates’ court for an order under this Part on the ground that that civil partner or the other civil partner has agreed to make such financial provision as may be specified in the application.

2

On such an application, the court may order that the applicant or the respondent (as the case may be) is to make the financial provision specified in the application, if—

a

it is satisfied that the applicant or the respondent (as the case may be) has agreed to make that provision, and

b

it has no reason to think that it would be contrary to the interests of justice to do so.

3

Sub-paragraph (2) is subject to paragraph 12.

10Meaning of “financial provision” and of references to specified financial provision

1

In this Part “financial provision” means any one or more of the following—

a

the making of periodical payments by one civil partner to the other;

b

the payment of a lump sum by one civil partner to the other;

c

the making of periodical payments by one civil partner to a child of the family or to the other civil partner for the benefit of such a child;

d

the payment by one party of a lump sum to a child of the family or to the other civil partner for the benefit of such a child.

2

c

if the financial provision specified in the application includes or consists of provision in respect of a child of the family to be made by the applicant to the respondent for the benefit of the child or to the child, the financial resources of the child.

12Exercise of powers in relation to children

1

This paragraph applies if the financial provision specified in an application under this Part—

a

includes, or

b

consists of,

provision in respect of a child of the family.

2

The court must not make an order under this Part unless it considers that the provision which the applicant or the respondent (as the case may be) has agreed to make in respect of the child provides for, or makes a proper contribution towards, the financial needs of the child.

13Power to make alternative orders

1

an order is made under this Part on the application of either civil partner, and

b

either of them has also made an application for a Part 1 order,

the application for the Part 1 order is to be treated as if it had been withdrawn.

Part 3Orders of court where civil partners living apart by agreement

15Powers of court where civil partners are living apart by agreement

1

If—

a

the civil partners have been living apart for a continuous period exceeding 3 months, neither civil partner having deserted the other, and

b

one of the civil partners has been making periodical payments for the benefit of the other civil partner or of a child of the family,

the other civil partner may apply to a magistrates’ court for an order under this Part.

2

An application made under sub-paragraph (1) must specify the total amount of the payments made by the respondent during the period of 3 months immediately preceding the date of the making of the application.

3

If on an application for an order under this Part the court is satisfied that the respondent has made the payments specified in the application, the court may make one or both of the orders set out in paragraph 16.

4

Sub-paragraph (3) is subject to the provisions of this Schedule.

16The orders that may be made under this Part

1

The orders are—

a

an order that the respondent is to make to the applicant such periodical payments for such term as may be specified;

b

an order that the respondent is to make—

i

to the applicant for the benefit of a child of the family to whom the application relates, or

ii

to a child of the family to whom the application relates.

such periodical payments for such term as may be specified.

2

“Specified” means specified in the order.

17Restrictions on orders under this Part

The court in the exercise of its powers under this Part must not require—

a

the respondent to make payments whose total amount during any period of 3 months exceeds the total amount paid by him for the benefit of—

i

the applicant, or

ii

a child of the family,

during the period of 3 months immediately preceding the date of the making of the application;

b

the respondent to make payments to or for the benefit of any person which exceed in amount the payments which the court considers that it would have required the respondent to make to or for the benefit of that person on an application under Part 1;

c

payments to be made to or for the benefit of a child of the family who is not the respondent’s child, unless the court considers that it would have made an order in favour of that child on an application under Part 1.

18Relationship with powers under Part 1

21Meaning of interim order

1

An interim order is an order requiring the respondent to make such periodical payments as the court thinks reasonable—

a

to the applicant,

b

to any child of the family who is under 18, or

c

to the applicant for the benefit of such a child.

2

In relation to an interim order in respect of an application for an order under Part 2 by the civil partner who has agreed to make the financial provision specified in the application, sub-paragraph (1) applies as if—

a

the reference to the respondent were a reference to the applicant, and

b

the references to the applicant were references to the respondent.

c

the date on which a magistrates’ court either makes a final order on, or dismisses, the application.

2

If an interim order made under this Part would, but for this sub-paragraph, cease to have effect under sub-paragraph (1)(a) or (b)—

a

the magistrates’ court which made the order, or

b

in the case of an interim order made by the High Court, the magistrates’ court by which the application for an order under Part 1, 2 or 3 is to be reheard,

may by order provide that the interim order is to continue in force for a further period.

3

An order continued in force under sub-paragraph (2) ceases to have effect on the earliest of the following dates—

a

the date, if any, specified for the purpose in the order continuing it;

b

the date on which ends the period of 3 months beginning with—

i

the date of the making of the order continuing it, or

ii

if more than one such order has been made with respect to the application, the date of the making of the first such order;

c

the date on which the court either makes a final order on, or dismisses, the application.

25Supplementary

1

An interim order made by the High Court under paragraph 20(3) on ordering an application to be reheard by a magistrates’ court is to be treated for the purposes of—

a

its enforcement, and

b

Part 6 (variation etc. of orders),

as if it were an order of that magistrates’ court (and not of the High Court).

2

No appeal lies from the making of or refusal to make, the variation of or refusal to vary, or the revocation of or refusal to revoke, an interim order.

Part 5Commencement and duration of orders under Parts 1, 2 and 3

26Duration of periodical payments order for a civil partner

1

The court may specify in a periodical payments order made under paragraph 2(1)(a) or Part 3 in favour of a civil partner such term as it thinks fit, except that the term must not—

a

begin before the date of the making of the application for the order, or

b

extend beyond the death of either of the civil partners.

2

If—

a

a periodical payments order is made under paragraph 2(1)(a) or Part 3 in favour of one of the civil partners, and

b

the civil partnership is subsequently dissolved or annulled but the order continues in force,

the periodical payments order ceases to have effect (regardless of anything in it) on the formation of a subsequent civil partnership or marriage by that civil partner, except in relation to any arrears due under the order on the date of that event.

undergoing training for a trade, profession or vocation,

whether or not also the child is, will be or would be, in gainful employment, or

b

there are special circumstances which justify the making of the order without complying with either or both of sub-paragraphs (1) and (3)(b).

6

Any order made under paragraph 2(1)(c) or Part 3 in favour of a child, regardless of anything in the order, ceases to have effect on the death of the person liable to make payments under the order.

7

If—

10

“The relevant date” means the date on which the maintenance calculation ceased to have effect.

11

In this Schedule “maintenance calculation” has the same meaning as it has in the 1991 Act by virtue of section 54 of the 1991 Act as read with any regulations in force under that section.

28Application of paragraphs 26 and 27 to Part 2 orders

1

Subject to sub-paragraph (3), paragraph 26 applies in relation to an order under Part 2 which requires periodical payments to be made to a civil partner for his own benefit as it applies in relation to an order under paragraph 2(1)(a).

2

Subject to sub-paragraph (3), paragraph 27 applies in relation to an order under Part 2 for the making of financial provision in respect of a child of the family as it applies in relation to an order under paragraph 2(1)(c) or (d).

3

If—

a

the court makes an order under Part 2 which contains provision for the making of periodical payments, and

b

by virtue of paragraph 14, an application for an order under Part 1 is treated as if it had been withdrawn,

the term which may be specified under Part 2 as the term for which the payments are to be made may begin with the date of the making of the application for the order under Part 1 or any later date.

29Effect on certain orders of parties living together

1

Sub-paragraph (2) applies if periodical payments are required to be made to a civil partner (whether for the civil partner’s own benefit or for the benefit of a child of the family)—

a

by an order made under Part 1 or 2, or

b

by an interim order made under Part 4 (otherwise than on an application under Part 3).

2

The order is enforceable even though—

a

the civil partners are living with each other at the date of the making of the order, or

b

if they are not living with each other at that date, they subsequently resume living with each other;

but the order ceases to have effect if after that date the parties continue to live with each other, or resume living with each other, for a continuous period exceeding 6 months.

3

Sub-paragraph (4) applies if—

a

an order is made under Part 1 or 2 which requires periodical payments to be made to a child of the family, or

b

an interim order is made under Part 4 (otherwise than on an application under Part 3) which requires periodical payments to be made to a child of the family.

4

Unless the court otherwise directs, the order continues to have effect and is enforceable even if—

a

the civil partners are living with each other at the date of the making of the order, or

b

if they are not living with each other at that date, they subsequently resume living with each other.

5

An order made under Part 3, and any interim order made on an application for an order under that Part, ceases to have effect if the civil partners resume living with each other.

6

If an order made under this Schedule ceases to have effect under—

a

sub-paragraph (2) or (5), or

b

a direction given under sub-paragraph (4),

a magistrates’ court may, on an application made by either civil partner, make an order declaring that the order ceased to have effect from such date as the court may specify.

Part 6Variation etc. of orders

30Power to vary, revoke, suspend or revive order

1

Where—

a

the court has power by virtue of this paragraph to make an order for the payment of a lump sum, and

b

the respondent or the applicant (as the case may be) has agreed to pay a lump sum of an amount exceeding the maximum amount that may at that time be required to be paid under Part 1,

the court may, regardless of sub-paragraph (3), make an order for the payment of a lump sum of that amount.

Power to specify when order as varied is to take effect

32

An order made under this Part which varies an order for the making of periodical payments may provide that the payments as so varied are to be made from such date as the court may specify, except that, subject to paragraph 33, the date must not be earlier than the date of the making of the application under this Part.

33

1

If—

a

there is in force an order (“the order”)—

i

under paragraph 2(1)(c),

ii

under Part 2 making provision of a kind set out in paragraph 10(1)(c) (regardless of whether it makes provision of any other kind mentioned in paragraph 10(1)(c)),

iii

under paragraph 16(1)(b), or

iv

which is an interim order under Part 4 under which the payments are to be made to a child or to the applicant for the benefit of a child,

b

the order requires payments specified in it to be made to or for the benefit of more than one child without apportioning those payments between them,

c

a maintenance calculation (“the calculation”) is made with respect to one or more, but not all, of the children with respect to whom those payments are to be made, and

d

an application is made, before the end of 6 months beginning with the date on which the calculation was made, for the variation or revocation of the order,

the court may, in exercise of its powers under this Part to vary or revoke the order, direct that the variation or revocation is to take effect from the date on which the calculation took effect or any later date.

2

If—

a

an order (“the child order”) of a kind prescribed for the purposes of section 10(1) of the Child Support Act 1991 is affected by a maintenance calculation,

b

on the date on which the child order became so affected there was in force an order (“the civil partner’s order”)—

i

under paragraph 2(1)(a),

ii

under Part 2 making provision of a kind set out in paragraph 10(1)(a) (regardless of whether it makes provision of any other kind mentioned in paragraph 10(1)(a)),

iii

under paragraph 16(1)(a), or

iv

which is an interim order under Part 4 under which the payments are to be made to the applicant (otherwise than for the benefit of a child), and

c

an application is made, before the end of 6 months beginning with the date on which the maintenance calculation was made, for the civil partner’s order to be varied or revoked,

the court may, in exercise of its powers under this Part to vary or revoke the civil partner’s order, direct that the variation or revocation is to take effect from the date on which the child order became so affected or any later date.

3

For the purposes of sub-paragraph (2), an order is affected if it ceases to have effect or is modified by or under section 10 of the 1991 Act.

34Matters to which court is to have regard in exercising powers under this Part

1

In exercising the powers conferred by this Part the court must, so far as it appears to the court just to do so, give effect to any agreement which has been reached between the civil partners in relation to the application.

2

If—

a

there is no such agreement, or

b

if the court decides not to give effect to the agreement,

the court must have regard to all the circumstances of the case, giving first consideration to the welfare while under 18 of any child of the family who has not reached 18.

3

Those circumstances include any change in any of the matters—

a

to which the court was required to have regard when making the order to which the application relates, or

b

in the case of an application for the variation or revocation of an order made under Part 2 or on an appeal made by virtue of paragraph 46, to which the court would have been required to have regard if that order had been made under Part 1.

Variation of orders for periodical payments: further provisions

35

1

The power of the court under paragraphs 30 to 34 to vary an order for the making of periodical payments includes power, if the court is satisfied that payment has not been made in accordance with the order, to exercise one of its powers under section 59(3)(a) to (d) of the Magistrates’ Courts Act 1980 (c. 43).

2

Sub-paragraph (1) is subject to paragraph 37.

36

1

If—

a

a magistrates’ court has made an order under this Schedule for the making of periodical payments, and

b

payments under the order are required to be made by any method of payment falling within section 59(6) of the 1980 Act (standing order, etc.),

an application may be made under this sub-paragraph to the court for the order to be varied as mentioned in sub-paragraph (2).

2

Subject to sub-paragraph (4), if an application is made under sub-paragraph (1), a justices’ clerk, after—

a

giving written notice (by post or otherwise) of the application to the respondent, and

b

allowing the respondent, within the period of 14 days beginning with the date of the giving of that notice, an opportunity to make written representations,

may vary the order to provide that payments under the order are to be made to the designated officer for the court.

3

The clerk may proceed with an application under sub-paragraph (1) even if the respondent has not received written notice of the application.

4

If an application has been made under sub-paragraph (1), the clerk may, if he considers it inappropriate to exercise his power under sub-paragraph (2), refer the matter to the court which, subject to paragraph 37, may vary the order by exercising one of its powers under section 59(3)(a) to (d) of the 1980 Act.

37

1

Before varying the order by exercising one of its powers under section 59(3)(a) to (d) of the 1980 Act, the court must have regard to any representations made by the parties to the application.

2

If the court does not propose to exercise its power under section 59(3)(c), (cc) or (d) of the 1980 Act, the court must, unless upon representations expressly made in that behalf by the person to whom payments under the order are required to be made it is satisfied that it is undesirable to do so, exercise its power under section 59(3)(b).

38

1

Section 59(4) of the 1980 Act (power of court to order that account be opened) applies for the purposes of paragraphs 35 and 36(4) as it applies for the purposes of section 59.

2

None of the powers of the court, or of a justices’ clerk, conferred by paragraphs 35 to 37 and sub-paragraph (1) is exercisable in relation to an order under this Schedule for the making of periodical payments which is not a qualifying maintenance order (within the meaning of section 59 of the 1980 Act).

39Persons who may apply under this Part

An application under paragraph 30, 31 or 36 may be made—

the child is, will be or (if an order were made under this sub-paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment, or

b

there are special circumstances which justify the making of an order under this sub-paragraph,

the court may by order revive the order from such date as the court may specify, not being earlier than the date of the making of the application.

3

Any order revived under this paragraph may be varied or revoked under paragraphs 30 to 34 in the same way as it could have been varied or revoked had it continued in being.

41Variation of instalments of lump sum

If in the exercise of its powers under section 75 of the 1980 Act a magistrates’ court orders that a lump sum required to be paid under this Schedule is to be paid by instalments, the court, on an application made by either the person liable to pay or the person entitled to receive that sum, may vary that order by varying—

a

the number of instalments payable,

b

the amount of any instalment payable, and

c

the date on which any instalment becomes payable.

42Supplementary provisions with respect to variation and revocation of orders

None of the following powers apply in relation to an order made under this Schedule—

a

the powers of a magistrates’ court to revoke, revive or vary an order for the periodical payment of money and the power of a justices’ clerk to vary such an order under section 60 of the 1980 Act;

b

the power of a magistrates’ court to suspend or rescind certain other orders under section 63(2) of the 1980 Act.

Part 7Arrears and repayments

43Enforcement etc. of orders for payment of money

Section 32 of the Domestic Proceedings and Magistrates’ Courts Act 1978 (c. 22) applies in relation to orders under this Schedule as it applies in relation to orders under Part 1 of that Act.

44Orders for repayment after cessation of order because of subsequent civil partnership etc.

1

Sub-paragraphs (3) and (4) apply if—

a

an order made under paragraph 2(1)(a) or Part 2 or 3 has, under paragraph 26(2), ceased to have effect because of the formation of a subsequent civil partnership or marriage by the party (“R”) in whose favour it was made, and

b

the person liable to make payments under the order (“P”) made payments in accordance with it in respect of a relevant period in the mistaken belief that the order was still subsisting.

2

“Relevant period” means a period after the date of the formation of the subsequent civil partnership or marriage.

3

No proceedings in respect of a cause of action arising out of the circumstances mentioned in sub-paragraph (1)(a) and (b) is maintainable by P (or P’s personal representatives) against R (or R’s personal representatives).

4

But on an application made under this paragraph by P (or P’s personal representatives) against R (or R’s personal representatives) the court—

a

may order the respondent to pay to the applicant a sum equal to the amount of the payments made in respect of the relevant period, or

b

if it appears to the court that it would be unjust to make that order, may—

i

order the respondent to pay to the applicant such lesser sum as it thinks fit, or

ii

dismiss the application.

5

An order under this paragraph for the payment of any sum may provide for the payment of that sum by instalments of such amount as may be specified in the order.

6

An application under this paragraph—

a

may be made in proceedings in the High Court or a county court for leave to enforce, or the enforcement of, the payment of arrears under an order made under paragraph 2(1)(a) or Part 2 or 3, but

b

if not made in such proceedings, must be made to a county court,

and accordingly references in this paragraph to the court are references to the High Court or a county court, as the circumstances require.

7

The jurisdiction conferred on a county court by this paragraph is exercisable by a county court even though, because of the amount claimed in an application under this paragraph, the jurisdiction would not but for this sub-paragraph be exercisable by a county court.

8

there is a child of the family who is under 18,

the court must not dismiss or make a final order on the application until it has decided whether to exercise any of its powers under the Children Act 1989 (c. 41) with respect to the child.

46Constitution of courts, powers of High Court and county court in relation to orders and appeals

The following provisions of the Domestic Proceedings and Magistrates’ Courts Act 1978 (c. 22) apply in relation to an order under this Schedule relating to a civil partnership as they apply in relation to an order under Part 1 of that Act relating to a marriage—

a

section 28 (powers of the High Court and a county court in relation to certain orders),

b

section 29 (appeals), and

c

section 31 (constitution of courts).

47Provisions as to jurisdiction and procedure

2Either civil partner may make application for financial relief

1

Either of the civil partners may make an application to the court for an order under paragraph 9 or 13.

2

The rights conferred by sub-paragraph (1) are subject to—

a

paragraph 3 (civil partner may not apply after forming subsequent civil partnership etc.), and

b

paragraph 4 (application may not be made until leave to make it has been granted).

3

An application for an order under paragraph 9 or 13 must be made in a manner prescribed by rules of court.

3No application after formation of subsequent civil partnership or marriage

1

If—

a

the civil partnership has been dissolved or annulled, and

b

after the dissolution or annulment, one of the civil partners forms a subsequent civil partnership or marriage,

that civil partner shall not be entitled to make, in relation to the civil partnership, an application for an order under paragraph 9 or 13.

2

The reference in sub-paragraph (1) to the forming of a subsequent civil partnership or marriage includes a reference to the forming of a civil partnership or marriage which is by law void or voidable.

Civil Partnership Act 2004

Part 1Introduction

1Civil partnership

1

a

i

ii

iii

iv

b

2

3

4

5

Part 2Civil partnership: England and Wales

Chapter 1Registration

Formation, eligibility and parental etc. consent

2Formation of civil partnership by registration

1

a

b

2

3

a

b

4

a

b

5

6

7

3Eligibility

1

a

b

c

d

2

4Parental etc. consent where proposed civil partner under 18

1

2

3

4

5

Registration procedure: general

5Types of pre-registration procedure

1

a

b

c

d

2

a

b

3

a

b

4

6Place of registration

1

a

b

c

2

a

b

3

a

b

4

5

7The civil partnership document

1

a

b

2

a

b

The standard procedure

8Notice of proposed civil partnership and declaration