Civil Partnership Act 2004 (c. 33)

(The document as of February, 2008)

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(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 5 Dissolution, separation and nullity

Dissolution and separation

117 Dissolution

(1) An action for the dissolution of a civil partnership may be brought in the Court of Session or in the sheriff court.

(2) In such an action the court may grant decree, if, but only if, it is established that--

(a) the civil partnership has broken down irretrievably, or

(b) an interim gender recognition certificate under the Gender Recognition Act 2004 (c. 7) has, after the date of registration of the civil partnership, been issued to either of the civil partners.

(3) The irretrievable breakdown of a civil partnership is taken to be established if--

(a) since the date of registration of the civil partnership the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender,

(b) the defender has wilfully and without reasonable cause deserted the pursuer and during a continuous period of two years immediately succeeding the defender's desertion--

(i) there has been no cohabitation between the parties, and

(ii) the pursuer has not refused a genuine and reasonable offer by the defender to adhere,

(c) there has been no cohabitation between the civil partners at any time during a continuous period of two years after the date of registration of the civil partnership and immediately preceding the bringing of the action and the defender consents to the granting of decree of dissolution of the civil partnership, or

(d) there has been no cohabitation between the civil partners at any time during a continuous period of 5 years after that date and immediately preceding the bringing of the action.

(4) Provision is to be made by act of sederunt--

(a) for the purpose of ensuring that, in an action to which paragraph (c) of subsection (3) relates, the defender has been given such information as enables that civil partner to understand--

(i) the consequences of consenting to the granting of decree, and

(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.

118 Encouragement 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.

119 Effect 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) cohabits with the defender at any time after the end of a period of 3 months commencing with the date of such resumption.

(2) Subsection (1) is subject to section 118(2).

(3) In considering whether any period mentioned in paragraph (b), (c) or (d) of section 117(3) has been continuous, no account is to be taken of any period or periods not exceeding 6 months in all during which the civil partners cohabited with one another; but no such period or periods during which the civil partners cohabited with one another is to count as part of the period of non-cohabitation required by any of those paragraphs.

120 Separation

(1) An action for the separation of the civil partners in a civil partnership may be brought in the Court of Session or in the sheriff court.

(2) In such an action the court may grant decree if satisfied that the circumstances set out in any of paragraphs (a) to (d) of section 117(3) are established.

121 Dissolution following on decree of separation

(1) The court may grant decree in an action for the dissolution of a civil partnership even though decree of separation has previously been granted to the pursuer on the same, or substantially the same, facts as those averred in support of that action; and in any such action the court may treat an extract decree of separation lodged in process as sufficient proof of the facts under which that decree was granted.

(2) Nothing in this section entitles a court to grant decree of dissolution of a civil partnership without receiving evidence from the pursuer.

122 Registration of dissolution of civil partnership

(1) The Registrar General is to maintain at the General Register Office a register of decrees of dissolution of civil partnership (a register which shall be known as the "Register of Dissolutions of Civil Partnership").

(2) The Registrar General is to cause to be made and kept at the General Register Office an alphabetical index of the entries in that register.

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

(4) On payment to him of such fee or fees as may be prescribed, the Registrar General must, at any time when the General Register Office is open for that purpose--

(a) cause a search of the index to be made on behalf of any person or permit any person to search the index himself,

(b) issue to any person an extract of any entry in the register which that person may require.

(5) An extract of any entry in the register is to be sufficient evidence of the decree of dissolution to which it relates.

(6) The Registrar General may--

(a) delete,

(b) amend, or

any entry in the register.

Nullity

123 Nullity

Where two people register in Scotland as civil partners of each other, the civil partnership is void if, and only if--

(a) they were not eligible to do so, or

(b) though they were so eligible, either of them did not validly consent to its formation.

124 Validity of civil partnerships registered outside Scotland

(1) Where two people register as civil partners of each other in England and Wales--

(a) the civil partnership is void if it would be void in England and Wales under section 49, and

(b) the civil partnership is voidable if it would be voidable there under section 50(1)(a), (b), (c) or (e).

(2) Where two people register as civil partners of each other in Northern Ireland, the civil partnership is--

(a) void, if it would be void in Northern Ireland under section 173, and

(b) voidable, if it would be voidable there under section 174(1)(a), (b), (c) or (e).

(3) Subsection (4) applies where two people register as civil partners of each other under an Order in Council under--

(a) section 210 (registration at British consulates etc.), or

(b) section 211 (registration by armed forces personnel),

("the relevant section").

(4) The civil partnership is--

(a) void, if--

(i) the condition in subsection (2)(a) or (b) of the relevant section is not met, or

(ii) a requirement prescribed for the purposes of this paragraph by an Order in Council under the relevant section is not complied with, and

(b) voidable, if--

(i) the appropriate part of the United Kingdom is England and Wales and the circumstances fall within section 50(1)(a), (b), (c) or (e), or

(ii) the appropriate part of the United Kingdom is Northern Ireland and the circumstances fall within section 174(1)(a), (b), (c) or (e).

(5) The appropriate part of the United Kingdom is the part by reference to which the condition in subsection (2)(b) of the relevant section is met.

(6) Subsections (7) and (8) apply where two people have registered an apparent or alleged overseas relationship.

(7) The civil partnership is void if--

(a) the relationship is not an overseas relationship, or

(b) (even though the relationship is an overseas relationship), the parties are not treated under Chapter 2 of Part 5 as having formed a civil partnership.

(8) The civil partnership is voidable if--

(a) the overseas relationship is voidable under the relevant law,

(b) where either of the parties was domiciled in England and Wales at the time when the overseas relationship was registered, the circumstances fall within section 50(1)(a), (b), (c) or (e), or

(c) where either of the parties was domiciled in Northern Ireland at the time when the overseas relationship was registered, the circumstances fall within section 174(1)(a), (b), (c) or (e).

(9) Section 51 or (as the case may be) section 175 applies for the purposes of--

(a) subsections (1)(b), (2)(b) and (4)(b),

(b) subsection (8)(a), in so far as applicable in accordance with the relevant law, and

(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

125 Financial 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 6 Miscellaneous and interpretation

Miscellaneous

126 Regulations

(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.

127 Attachment

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.

128 Promise 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.

129 Lord 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.

130 Civil 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.

131 Succession: 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".

132 Assurance 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.

133 Council Tax: liability of civil partners

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

" 77A Liability 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. "

134 General 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

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

136 The 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 4 Civil partnership: Northern Ireland

Chapter 1 Registration

Formation and eligibility

137 Formation 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

(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.

138 Eligibility

(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,

(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

139 Notice 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.

140 Civil 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.

141 Power 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,

(d) of the person's nationality.

142 Objections

(1) Any person may at any time before the formation of a civil partnership in Northern Ireland make an objection in writing to the registrar.

(2) An objection on the ground that one of the proposed civil partners is incapable of understanding the nature of civil partnership must be accompanied by a supporting certificate signed by a medical practitioner.

(3) If the registrar is satisfied that the objection relates to no more than a misdescription or inaccuracy in the civil partnership notice, he must--

(a) notify the proposed civil partners,

(b) make such inquiries as he thinks fit, and

(c) subject to the approval of the Registrar General, make any necessary correction to any document relating to the proposed civil partnership.

(4) In any other case the registrar must notify the Registrar General of the objection.

(5) If the Registrar General is satisfied that there is a legal impediment to the formation of the civil partnership, he must direct the registrar to--

(a) notify the parties, and

(b) take all reasonable steps to ensure that the formation of the civil partnership does not take place.

(6) If subsection (5) does not apply, the Registrar General must direct the registrar to proceed under section 143.

(7) For the purposes of this section and section 143 there is a legal impediment to the formation of a civil partnership where the proposed civil partners are not eligible to be registered as civil partners of each other.

(8) A person who has submitted an objection may withdraw it at any time, but the Registrar General may have regard to an objection which has been withdrawn.

143 Civil partnership schedule

After the registrar receives a civil partnership notice from each of the proposed civil partners, he must complete a civil partnership schedule in the prescribed form, if--

(a) 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.

144 Place of registration

(1) The place at which two people may register as civil partners of each other must be--

(a) a registration office, or

(b) a place approved under subsection (3).

(2) Subsection (1) is subject to subsections (5) and (7).

(3) A local registration authority may, in accordance with regulations under subsection (4), approve places where civil partnerships may be registered in its district.

(4) Regulations under section 159 may make provision for or in connection with the approval of places under subsection (3), including provision as to--

(a) the kinds of place in respect of which approvals may be granted,

(b) the procedure to be followed in relation to applications for approval,

(d) the duration and renewal of approvals (whether for one occasion or for a period),

(e) the conditions that must or may be imposed on granting or renewing an approval,

(f) the determination and charging of fees in respect of[en rule]

(i) applications for the approval of places,

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