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 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition
80

Jurisdiction of Scottish courts
165
Jurisdiction of Scottish courts
(1)
The Court of Session has jurisdiction to entertain an action for the dissolution
of a civil partnership or for separation of civil partners if (and only if)—
(a)
the court has jurisdiction under section 159 regulations,
5
(b)
no court has, or is recognised as having, jurisdiction under section 159
regulations and either civil partner is domiciled in Scotland on the date
when the proceedings are begun, or
(c)
the following conditions are met—
(i)
the two people concerned registered as civil partners of each
10
other in Scotland,
(ii)
no court has, or is recognised as having, jurisdiction under
section 159 regulations, and
(iii)
it appears to the court to be in the interests of justice to assume
jurisdiction in the case.
15
(2)
The sheriff has jurisdiction to entertain an action for the dissolution of a civil
partnership or for separation of civil partners if (and only if) the requirements
of paragraph (a) or (b) of subsection (1) are met and either civil partner—
(a)
was resident in the sheriffdom for a period of 40 days ending with the
date when the action is begun, or
20
(b)
had been resident in the sheriffdom for a period of not less than 40 days
ending not more than 40 days before that date and has no known
residence in Scotland at that date.
(3)
The Court of Session has jurisdiction to entertain an action for declarator of
nullity of a civil partnership if (and only if)—
25
(a)
the Court has jurisdiction under section 159 regulations,
(b)
no court has, or is recognised as having, jurisdiction under section 159
regulations and either of the ostensible civil partners—
(i)
is domiciled in Scotland on the date when the proceedings are
begun, or
30
(ii)
died before that date and either was at death domiciled in
Scotland or had been habitually resident in Scotland
throughout the period of 1 year ending with the date of death.
(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
35
has jurisdiction to entertain other proceedings, in respect of the same civil
partnership (or ostensible civil partnership), for dissolution, separation or
declarator of nullity, even though that jurisdiction would not be exercisable
under any of subsections (1) to (3).
166
Sisting of proceedings
40
(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—
45

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition
81

(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
5
elsewhere in respect of the same civil partnership (or ostensible civil
partnership).
167
Scottish 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
10
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
15
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 159 regulations,
20
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
25
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)
30
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.
Recognition of dissolution, annulment and separation
168
Effect of dissolution, annulment or separation obtained in the UK
35
(1)
No dissolution or annulment of a civil partnership obtained in one part of the
United Kingdom is effective in any part of the United Kingdom unless
obtained from a court of civil jurisdiction.
(2)
Subject to subsections (3) and (4), the validity of a dissolution or annulment of
a civil partnership or a legal separation of civil partners which has been
40
obtained from a court of civil jurisdiction in one part of the United Kingdom is
to be recognised throughout the United Kingdom.
(3)
Recognition of the validity of a dissolution, annulment or legal separation
obtained from a court of civil jurisdiction in one part of the United Kingdom

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition
82

may be refused in any other part 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 the other part, or
(b)
previously given by a court elsewhere and recognised or entitled to be
5
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.
10
169
Recognition 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 170 to 172.
(2)
This section and sections 170 to 172 do not apply to an overseas dissolution,
15
annulment or legal separation as regards which provision as to recognition is
made by section 159 regulations.
(3)
For the purposes of subsections (1) and (2) and sections 170 to 172, 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
20
outside the United Kingdom.
170
Grounds for recognition
(1)
The validity of an overseas dissolution, annulment or legal separation obtained
by means of proceedings is to be recognised if—
(a)
the dissolution, annulment or legal separation is effective under the law
25
of the country in which it was obtained, and
(b)
at the relevant date either civil partner—
(i)
was habitually resident in the country in which the dissolution,
annulment or legal separation was obtained,
(ii)
was domiciled in that country, or
30
(iii)
was a national of that country.
(2)
The validity of an overseas dissolution, annulment or legal separation obtained
otherwise than by means of proceedings is to be recognised if—
(a)
the dissolution, annulment or legal separation is effective under the law
of the country in which it was obtained,
35
(b)
at the relevant date—
(i)
each civil partner was domiciled in that country, or
(ii)
either civil partner was domiciled in that country and the other
was domiciled in a country under whose law the dissolution,
annulment or legal separation is recognised as valid, and
40
(c)
neither civil partner was habitually resident in the United Kingdom
throughout the period of 1 year immediately preceding that date.
(3)
In this section “the relevant date” means—

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition
83

(a)
in the case of an overseas dissolution, annulment or legal separation
obtained by means of proceedings, the date of the commencement of
the proceedings;
(b)
in the case of an overseas dissolution, annulment or legal separation
obtained otherwise than by means of proceedings, the date on which it
5
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.
171
Refusal of recognition
10
(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—
15
(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
20
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—
25
(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
30
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
35
(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
40
(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
45
separation would be manifestly contrary to public policy.
(4)
In this section—

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 3 — Dissolution etc.: jurisdiction and recognition
84


“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 170.
5
172
Supplementary provisions relating to recognition of dissolution etc.
(1)
For the purposes of sections 170 and 171, a civil partner is to be treated as
domiciled in a country if he was domiciled in that country—
(a)
according to the law of that country in family matters, or
(b)
according to the law of the part of the United Kingdom in which the
10
question of recognition arises.
(2)
The Lord Chancellor or the Scottish Ministers may by regulations make
provision—
(a)
with respect to recognition of the validity of an overseas annulment in
cases where there are cross-proceedings;
15
(b)
with respect to cases where a legal separation is converted under the
law of the country in which it is obtained into a dissolution which is
effective under the law of that country;
(c)
with respect to proof of findings of fact made in proceedings in any
country outside the United Kingdom;
20
(d)
applying sections 170 and 171 with modifications in relation to any
country whose territories have different systems of law in force in
matters of dissolution, annulment or legal separation.
(3)
The power to make regulations under subsection (2) is exercisable by statutory
instrument.
25
(4)
A statutory instrument containing such regulations—
(a)
if made by the Lord Chancellor, 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.
30
(5)
In this section (except subsection (4)) and sections 168 to 171 and 173—

“annulment” includes any order annulling a civil partnership, however
expressed;

“part of the United Kingdom” means England and Wales, Scotland or
Northern Ireland;
35

“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.
40
173
Non-recognition of overseas dissolution etc. not a bar
(1)
This section applies where, in any part of the United Kingdom—
(a)
a dissolution or annulment of a civil partnership has been granted by a
court of civil jurisdiction, or

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 4 — Miscellaneous and supplementary
85

(b)
the validity of a dissolution or annulment of a civil partnership is
recognised by virtue of this Chapter.
(2)
The fact that the dissolution or annulment would not be recognised outside the
United Kingdom does not—
(a)
preclude either party from forming a subsequent civil partnership or
5
marriage in that part of the United Kingdom, or
(b)
cause the subsequent civil partnership or marriage of either party
(wherever it takes place) to be treated as invalid in that part.
Chapter 4
Miscellaneous and supplementary
10
174
Commanding officers’ certificates for Part 2 purposes
(1)
Her Majesty may by Order in Council make provision in relation to cases
where—
(a)
two people wish to register as civil partners of each other in England
and Wales (under Chapter 1 of Part 2), and
15
(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.
20
(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
25
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
30
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.
35
175
Certificates 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,
40

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).

Civil Partnership Bill [HL]
Part 5 — Civil partnerships formed or dissolved abroad etc.
Chapter 4 — Miscellaneous and supplementary
86

(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
5
relationship has been shown to the person issuing the certificate to exist.
176
Transmission 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
10
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.
15
(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
20
(c)
in relation to Northern Ireland, the Registrar General for Northern
Ireland.
177
Power 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
25
the former two countries) makes, in relation to forces raised there, provision
similar to that made by section 151 (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.
178
Fees
30
(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.
35
(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 122 apply to regulations made under
subsection (2) as they apply to regulations under Part 3.
40
(4)
Regulations made by the Department of Finance and Personnel may prescribe
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.