Civil Partnership Bill [HL]

House of Lords

Session 2003 - 04
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Other Bills before Parliament

Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 4 — Interdicts
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(2)
For such refusal and the detention of that person until appearance in court by
virtue of section 112(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 110(4) is liberated under subsection (1),
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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 112(5).
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112
Procedure after arrest
(1)
The provisions of this section apply only where—
(a)
the non-applicant civil partner has not been liberated under section
111(1), and
(b)
the procurator fiscal decides that no criminal proceedings are to be
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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 110(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
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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
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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
110(4) as they apply to a person who has been arrested in respect of any
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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
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(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
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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
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(iii)
a request that the non-applicant civil partner be detained for a
further period not exceeding 2 days,

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 5 — Dissolution, separation and nullity
58

(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
5
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
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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
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require to be raised.
Chapter 5
Dissolution, separation and nullity
Dissolution and separation
113
Dissolution
20
(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
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(b)
an interim gender recognition certificate under the Gender Recognition
Act 2004 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—
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(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,
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(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
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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

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 5 — Dissolution, separation and nullity
59

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.
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(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
10
(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.
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(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
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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.
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(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.
114
Encouragement of reconciliation
(1)
At any time before granting decree in an action by virtue of paragraph (a) of
section 113(2) for dissolution of a civil partnership, if it appears to the court that
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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.
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115
Effect of resumption of cohabitation
(1)
In an action to which paragraph (b) of section 113(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
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(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 114(2).

Civil Partnership Bill [HL]
Part 3 — Civil partnerships: Scotland
Chapter 5 — Dissolution, separation and nullity
60

(3)
In considering whether any period mentioned in paragraph (b), (c) or (d) of
section 113(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
5
required by any of those paragraphs.
116
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
10
set out in any of paragraphs (a) to (d) of section 113(3) are established.
117
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
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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.
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118
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
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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—
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(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
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of dissolution to which it relates.
(6)
The Registrar General may—
(a)
delete,
(b)
amend, or
(c)
substitute another entry for,
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any entry in the register.