Civil Partnership Act 2004 (c. 33)

(The document as of February, 2008)

-- Back --

Page 9

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20 | P.21 | P.22 | P.23 | P.24 | P.25 | P.26 | P.27 | P.28 | P.29 | P.30 | P.31 | P.32 | P.33 | P.34 | P.35 | P.36 | P.37 | P.38 | P.39 | P.40

(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.

172 Proceedings 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) 5 years' separation,

has applied to the court for consideration under subsection (3) of his financial position after the dissolution of the civil partnership, and

(b) the court--

(i) has made a conditional dissolution order on the basis of a finding that the applicant was entitled to rely in support of his application on the fact of 2 years' or 5 years' separation, and

(ii) has made no such finding as to any other fact mentioned in section 168(5).

(3) The court hearing an application by the respondent under subsection (2) must consider all the circumstances, including--

(a) the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties, and

(b) the financial position of the respondent as, having regard to the dissolution, it is likely to be after the death of the applicant should the applicant die first.

(4) The court must not make the order final unless it has, by order, declared that it is satisfied that--

(a) the applicant should not be required to make any financial provision for the respondent,

(b) the financial provision made by the applicant for the respondent is--

(i) reasonable and fair, or

(ii) the best that can be made in the circumstances, or

(5) The court must not make an order declaring that it is satisfied as mentioned in subsection (4)(c) unless it has obtained a satisfactory undertaking from the applicant that he will bring the question of financial provision for the respondent before the court within a specified time.

(6) Subsection (7) applies if, following an application under subsection (2) which is not withdrawn, the court makes the order final without making an order under subsection (4).

(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

173 Grounds 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.

174 Grounds 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) 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;

(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)).

175 Bars 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--

(a) that the applicant, with knowledge that it was open to him to obtain a nullity order, conducted himself in relation to the respondent in such a way as to lead the respondent reasonably to believe that he would not seek to do so, and

(b) that it would be unjust to the respondent to make the order.

(2) Without prejudice to subsection (1), the court must not make a nullity order by virtue of section 174(1)(a), (b), (c) or (e) unless--

(a) it is satisfied that proceedings were instituted within 3 years from the date of the formation of the civil partnership, or

(b) leave for the institution of proceedings after the end of that 3 year period has been granted under subsection (3).

(3) A judge of the court may, on an application made to him, grant leave for the institution of proceedings if he--

(a) is satisfied that the applicant has at some time during the 3 year period suffered from mental disorder, and

(b) considers that in all the circumstances of the case it would be just to grant leave for the institution of proceedings.

(4) An application for leave under subsection (3) may be made after the end of the 3 year period.

(5) Without prejudice to subsection (1), the court must not make a nullity order by virtue of section 174(1)(d) unless it is satisfied that proceedings were instituted within the period of 6 months from the date of issue of the interim gender recognition certificate.

(6) Without prejudice to subsections (1) and (2), the court must not make a nullity order by virtue of section 174(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.

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

Where two people have registered as civil partners of each other in Northern Ireland, 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 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.

177 Validity of civil partnerships registered outside Northern Ireland

(1) Where two people register as civil partners of each other in England or Wales, the civil partnership is--

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

(b) voidable, if the circumstances fall within any paragraph of section 174(1).

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

(a) void, if it would be void in Scotland under section 123, and

(b) voidable, if the circumstances fall within section 174(1)(d).

(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 Northern Ireland or England and Wales and the circumstances fall within any paragraph of section 174(1), or

(ii) the appropriate part of the United Kingdom is Scotland and the circumstances fall within section 174(1)(d).

(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) the circumstances fall within section 174(1)(d), or

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

(9) 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 174 and 175 to the formation of a civil partnership are to be read as references to the registration of the overseas relationship.

Presumption of death orders

178 Presumption of death orders

(1) The High Court may, on an application made by a civil partner, make a presumption of death order if it is satisfied that reasonable grounds exist for supposing that the other civil partner is dead.

(2) In any proceedings under this section the fact that--

(a) for a period of 7 years or more the other civil partner has been continually absent from the applicant, and

(b) the applicant has no reason to believe that the other civil partner has been living within that time,

is evidence that the other civil partner is dead until the contrary is proved.

Separation orders

179 Separation orders

(1) An application for a separation order may be made to the court by either civil partner on the ground that any such fact as is mentioned in section 168(5)(a), (b), (c) or (d) exists.

(2) On an application for a separation order the court must inquire, so far as it reasonably can, into--

(a) the facts alleged by the applicant, and

(b) any facts alleged by the respondent,

but whether the civil partnership has broken down irretrievably is irrelevant.

(3) If the court is satisfied on the evidence of any such fact as is mentioned in section 168(5)(a), (b), (c) or (d) it must, subject to section 186, make a separation order.

(4) Section 169 (supplemental provisions as to facts raising presumption of breakdown) applies for the purposes of an application for a separation order alleging any such fact as it applies in relation to an application for a dissolution order alleging that fact.

180 Effect of separation order

If either civil partner dies intestate as respects all or any of his or her real or personal property while--

(a) a separation order is in force, and

(b) the separation order is continuing,

the property as respects which he or she died intestate devolves as if the other civil partner had then been dead.

Declarations

181 Declarations

(1) Any person may apply to the court for one or more of the following declarations in relation to a civil partnership specified in the application--

(a) 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;

(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.

182 General provisions as to making and effect of declarations

(1) Where on an application for a declaration under section 181 the truth of the proposition to be declared is proved to the satisfaction of the court, the court must make the declaration unless to do so would be manifestly contrary to public policy.

(2) Any declaration under section 181 binds Her Majesty and all other persons.

(3) The court, on the dismissal of an application for a declaration under section 181, may not make any declaration for which an application has not been made.

(4) No declaration which may be applied for under section 181 may be made otherwise than under section 181 by any court.

(5) No declaration may be made by any court, whether under section 181 or otherwise, that a civil partnership was at its inception void.

(6) Nothing in this section affects the powers of any court to annul a civil partnership.

183 The Attorney General and proceedings for declarations

(1) On an application for a declaration under section 181 the court may at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the Attorney General.

(2) The Attorney General, whether or not he is sent papers in relation to an application for a declaration under section 181, may--

(a) intervene in the proceedings on that application in such manner as he thinks necessary or expedient, and

(b) argue before the court any question in relation to the application which the court considers it necessary to have fully argued.

(3) Where any costs are incurred by the Attorney General in connection with any application for a declaration under section 181, the court may make such order as it considers just as to the payment of those costs by parties to the proceedings.

184 Supplementary provisions as to declarations

(1) Any declaration made under section 181, and any application for such a declaration, must be in the form prescribed by family proceedings rules.

(2) Family proceedings rules may make provision--

(a) as to the information required to be given by any applicant for a declaration under section 181;

(b) requiring notice of an application under section 181 to be served on the Attorney General and on persons who may be affected by any declaration applied for.

(3) No proceedings under section 181 affects any final judgment or order already pronounced or made by any court of competent jurisdiction.

(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

185 Relief 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).

186 Restrictions 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) if there are any such children, whether (in the light of the arrangements which have been, or are proposed to be, made for their upbringing and welfare) it should exercise any of its powers under the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) with respect to any of them.

(2) If, in any case to which this section applies, it appears to the court that--

(a) the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the 1995 Order with respect to any such child,

(b) it is not in a position to exercise the power or (as the case may be) those powers without giving further consideration to the case, and

(c) there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section,

it may direct that the order is not to be made final, or (in the case of a separation order) is not to be made, until the court orders otherwise.

(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.

187 Parties to proceedings under this Chapter

(1) Rules of court may make provision with respect to--

(a) the joinder as parties to proceedings under sections 161 to 179 of persons involved in allegations of improper conduct made in those proceedings,

(b) the dismissal from such proceedings of any parties so joined, and

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

(3) In every case in which the court considers, in the interest of a person not already a party to the proceedings, that the person should be made a party, the court may if it thinks fit allow the person to intervene upon such terms, if any, as the court thinks just.

The court

188 The 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)).

189 Appeals

(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) any order made by a judge of a civil partnership proceedings county court in the exercise of the jurisdiction conferred by a relevant provision, or

(b) the dismissal by a judge of a civil partnership proceedings county court of any application under a relevant provision.

(2) "Relevant provision" means any provision of--

(a) this Chapter or Schedule 15 (except paragraphs 56 to 58 and 66);

(b) the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)).

(3) A person dissatisfied with--

(a) an order made by any county court in exercise of the jurisdiction conferred by paragraph 57, 58 or 66 of Schedule 15, or

(b) with the dismissal of any application made by him under any of those paragraphs,

is entitled to appeal from the order or dismissal as if the order or dismissal had been made in exercise of the jurisdiction conferred by Part 3 of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)) and the appeal brought under Part 6 of that Order and Articles 61 (cases stated by county court judge) and 62 (cases stated by High Court on appeal from county court) of that Order apply accordingly.

190 Transfer of proceedings

(1) This section applies if an order is made under section 188.

(2) Rules of court--

(a) must provide for the transfer to the High Court--

(i) of any civil partnership cause pending in a civil partnership proceedings county court which ceases to be undefended, and

(ii) of any civil partnership cause so pending, where the transfer appears to the civil partnership proceedings county court to be desirable;

(b) may provide for the transfer to the High Court of any civil partnership cause which remains undefended;

(c) may provide for the transfer or retransfer from the High Court to a civil partnership proceedings county court of any civil partnership cause which is, or again becomes, undefended;

(d) must define the circumstances in which any civil partnership cause is to be treated for the purposes of this subsection as undefended.

(3) "Civil partnership cause" means an action for the dissolution or annulment of a civil partnership or for the legal separation of civil partners.

(4) Rules of court may provide for the transfer or retransfer--

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

(b) 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 3 Property and financial arrangements

191 Disputes 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.

192 Applications 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) property (other than money) to which, or to an interest in which, A was beneficially entitled,

and that either the money or other property has ceased to be in B's possession or under B's control or that A does not know whether it is still in B's possession or under B's control.

(2) For the purposes of subsection (1)(a) it does not matter whether A is beneficially entitled to the money or share--

(a) because it represents the proceeds of property to which, or to an interest in which, A was beneficially entitled, or

(b) for any other reason.

(3) Subsections (4) and (5) apply if, on such an application being made, the court is satisfied that B--

(a) has had in his possession or under his control money or other property as mentioned in subsection (1)(a) or (b), and

(b) has not made to A, in respect of that money or other property, such payment or disposition as would have been just and equitable in the circumstances.

(4) The power of the court to make orders under section 191 includes power to order B to pay to A--

(a) in a case falling within subsection (1)(a), such sum in respect of the money to which the application relates, or A's share of it, as the court considers appropriate, or

(b) in a case falling within subsection (1)(b), such sum in respect of the value of the property to which the application relates, or A's interest in it, as the court considers appropriate.

(5) If it appears to the court that there is any property which--

(a) represents the whole or part of the money or property, and

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

-- Back --

Stat