Civil Partnership Bill [HL]

House of Lords

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 2 — Registration
43

93
Certificates 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
5
England or Wales.
(2)
A may submit a notice of intention to register under section 84 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
10
section 88(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—
15
(a)
the circumstances are as mentioned in section 92(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
20
district registrar in deciding whether he is satisfied that there is no legal
impediment to A registering as B’s civil partner.
94
Application 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
25
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.
95
Correction of errors in civil partnership register
(1)
No alteration is to be made in the civil partnership register except as authorised
30
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”
35
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.
96
Offences
(1)
A person (“A”) commits an offence who registers in Scotland as the civil
40
partner of another person (“B”) knowing that either or both—
(a)
A is already married to or in civil partnership with a person other than
B, or

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 3 — Occupancy rights and tenancies
44

(b)
B is already married to or in civil partnership with a person other than
A.
(2)
A person commits an offence who knowingly—
(a)
falsifies or forges any civil partnership document (that is to say, any
document issued or made, or purporting to be issued or made, or
5
required, under this Part),
(b)
uses, or gives or sends to any person as genuine, any false or forged
civil partnership document,
(c)
being an authorised registrar, purports to register two people as civil
partners of each other before any civil partnership schedule available to
10
him at the time of registration has been duly completed,
(d)
not being an authorised registrar, conducts himself in such a way as to
lead intended civil partners to believe that he is authorised to register
them as civil partners of each other,
(e)
being an authorised registrar, purports to register two people as civil
15
partners of each other without both of them being present, or
(f)
being an authorised registrar, purports to register two people as civil
partners of each other in a place other than a registration office or a
place agreed under section 89.
(3)
A person guilty of an offence under subsection (1) or (2) is liable—
20
(a)
on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine (or both);
(b)
on summary conviction, to imprisonment for a term not exceeding 3
months or to a fine not exceeding level 3 on the standard scale (or both).
(4)
Summary proceedings for an offence under subsection (1) or (2) may be
25
commenced at any time within 3 months after evidence sufficient in the
opinion of the Lord Advocate to justify the proceedings comes to his
knowledge or within 12 months after the offence is committed (whichever
period last expires).
(5)
Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995
30
(c. 46) (time limits) has effect for the purposes of this section as it has for the
purposes of that section.
Chapter 3
Occupancy rights and tenancies
Occupancy rights
35
97
Occupancy 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
40
“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.

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 3 — Occupancy rights and tenancies
45

(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
5
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
10
99(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
15
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—
20
“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
25
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.
98
Occupancy: subsidiary and consequential rights
(1)
For the purpose of securing the occupancy rights of a non-entitled partner, that
partner is, in relation to a family home, entitled without the consent of the
30
entitled partner—
(a)
to make any payment due by the entitled partner in respect of rent,
rates, secured loan instalments, interest or other outgoings (not being
outgoings on repairs or improvements);
(b)
to perform any other obligation incumbent on the entitled partner (not
35
being an obligation in respect of non-essential repairs or
improvements);
(c)
to enforce performance of an obligation by a third party which that
third party has undertaken to the entitled partner to the extent that the
entitled partner may enforce such performance;
40
(d)
to carry out such essential repairs as the entitled partner may carry out;
(e)
to carry out such non-essential repairs or improvements as may be
authorised by an order of the court, being such repairs or
improvements as the entitled partner may carry out and which the
court considers to be appropriate for the reasonable enjoyment of the
45
occupancy rights;

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 3 — Occupancy rights and tenancies
46

(f)
to take such other steps, for the purpose of protecting the occupancy
rights of the non-entitled partner, as the entitled partner may take to
protect the occupancy rights of the entitled partner.
(2)
Any payment made under subsection (1)(a) or any obligation performed under
subsection (1)(b) has effect in relation to the rights of a third party as if the
5
payment were made or the obligation were performed by the entitled partner;
and the performance of an obligation which has been enforced under
subsection (1)(c) has effect as if it had been enforced by the entitled partner.
(3)
Where there is an entitled and a non-entitled partner, the court, on the
application of either of them, may, having regard in particular to the respective
10
financial circumstances of the partners, make an order apportioning
expenditure incurred or to be incurred by either partner—
(a)
without the consent of the other partner, on any of the items mentioned
in paragraphs (a) and (d) of subsection (1);
(b)
with the consent of the other partner, on anything relating to a family
15
home.
(4)
Where both partners are entitled, or permitted by a third party, to occupy a
family home—
(a)
either partner is entitled, without the consent of the other partner, to
carry out such non-essential repairs or improvements as may be
20
authorised by an order of the court, being such repairs or
improvements as the court considers to be appropriate for the
reasonable enjoyment of the occupancy rights;
(b)
the court, on the application of either partner, may, having regard in
particular to the respective financial circumstances of the partners,
25
make an order apportioning expenditure incurred or to be incurred by
either partner, with or without the consent of the other partner, on
anything relating to the family home.
(5)
Where one partner (“A”) owns or hires, or is acquiring under a hire-purchase
or conditional sale agreement, furniture and plenishings in a family home—
30
(a)
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
35
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)
the court, on the application of either partner, may, having regard in
particular to the respective financial circumstances of the partners,
40
make an order apportioning expenditure incurred or to be incurred by
either partner—
(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
45
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.

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 3 — Occupancy rights and tenancies
47

(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.
5
(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.
10
(9)
In this section “improvements” includes alterations and enlargement.
99
Regulation by court of rights of occupancy of family home
(1)
Where there is an entitled and a non-entitled partner, or where both partners
are entitled, or permitted by a third party, to occupy a family home, either
partner may apply to the court for an order—
15
(a)
declaring the occupancy rights of the applicant partner;
(b)
enforcing the occupancy rights of the applicant partner;
(c)
restricting the occupancy rights of the non-applicant partner;
(d)
regulating the exercise by either partner of his or her occupancy rights;
(e)
protecting the occupancy rights of the applicant partner in relation to
20
the other partner.
(2)
Where one partner owns or hires, or is acquiring under a hire-purchase or
conditional sale agreement, furniture and plenishings in a family home and the
other partner has occupancy rights in that home, that other person may apply
to the court for an order granting to the applicant the possession or use in the
25
family home of any such furniture and plenishings; but, subject to section 98,
an order under this subsection does not prejudice the rights of any third party
in relation to the non-performance of any obligation under such hire-purchase
or conditional sale agreement.
(3)
The court is to grant an application under subsection (1)(a) if it appears to the
30
court that the application relates to a family home; and, on an application
under any of paragraphs (b) to (e) of subsection (1) or under subsection (2), the
court may make such order relating to the application as appears to it to be just
and reasonable having regard to all the circumstances of the case including—
(a)
the conduct of the partners, whether in relation to each other or
35
otherwise,
(b)
the respective needs and financial resources of the partners,
(c)
the needs of any child of the family,
(d)
the extent (if any) to which—
(i)
the family home, and
40
(ii)
in relation only to an order under subsection (2), any item of
furniture and plenishings referred to in that subsection, is used
in connection with a trade, business or profession of either
partner, and
(e)
whether the entitled partner offers or has offered to make available to
45
the non-entitled partner any suitable alternative accommodation.

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 3 — Occupancy rights and tenancies
48

(4)
Pending the making of an order under subsection (3), the court, on the
application of either partner, may make such interim order as it considers
necessary or expedient in relation to—
(a)
the residence of either partner in the home to which the application
relates,
5
(b)
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
10
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
15
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
20
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
25
(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,
30
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
35
the possession or use of any item of furniture and plenishings.
100
Exclusion 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
40
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
45
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.

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 3 — Occupancy rights and tenancies
49

(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 99(3), and
(b)
where the family home—
5
(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
10
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.
15
(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,
20
(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
25
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
30
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;
35
(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
40
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
45
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.