Clause 30: The Registrar General and the register

59.     This clause defines "the Registrar General" and places certain responsibilities on him relating to the maintenance of records that relate to civil partnerships.

Clause 31: Offences relating to civil partnership schedule

60.     This clause creates offences in relation to the civil partnership schedule.

61.     Subsection (3) sets out the maximum penalty that may be imposed for these offences. Subsection (4) specifies the time limit within which a prosecution may be brought.

Clause 32: Offences relating to Registrar General's licence

62.     This clause creates offences in relation to the special procedure.

63.      Subsection (3) sets out the maximum penalty that may be imposed for these offences. Subsection (4) specifies the time limit within which a prosecution may be brought.

Clause 33: Offences relating to the recording of civil partnerships

64.     This clause creates offences in relation to the requirements for recording civil partnerships in the register, and specifies the maximum penalty for each offence. Subsection (9) provides a time limit of 3 years after the commission of the offence in relation to the commencement of a prosecution for certain of those offences.

Clause 34: Fees

65.     This clause enables the Chancellor of the Exchequer to make an order providing for fees to be payable in relation to specified elements of the different civil partnership registration procedures. The clause also makes provision, in cases of hardship, for the Registrar General to remit the fee for the issue of his licence under the special procedure.

Clause 35: Regulations and orders

66.     This clause provides that regulations may make provision supplementing the provisions on registration. The clause also provides that references to regulations within the registration provisions are to regulations made by the Registrar General, with the approval of the Chancellor of the Exchequer. Subsection (4) enables an order for amendment to be made by the Chancellor of the Exchequer in consequence of any order under the Regulatory Reform Act 2001 which includes provision relating to the system of registration of marriage in England and Wales. No orders can be made under subsection (4) unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament. Subsection (5) provides that any power to make regulations or an order as set out by this clause is exercisable by statutory instrument. Statutory instruments containing an order made under clause 34 are subject to annulment in pursuance of a resolution of either House of Parliament.

Chapter 2 - Dissolution, Nullity and Other Proceedings

Clause 36: Powers to make orders and effect of orders

67.     This clause lists the orders that the court can make (and their effects) to bring a civil partnership to an end or to formally recognise the separation of the parties. These are as follows:

a)     A dissolution order, which when made final will bring a civil partnership to an end.

b)     A nullity order, which when made final will annul a civil partnership which is either void or voidable.

c)     A presumption of death order, which when made final will dissolve the civil partnership on the ground that one of the civil partners is presumed to be dead.

d)     A separation order, which provides for the separation of the civil partners, but will not allow either civil partner to marry or to enter into another civil partnership.

68.     Subsection (2) provides that an order for dissolution, nullity or presumption of death will initially be a conditional order and that it may not be made final until the end of the prescribed period defined in clause 37.

69.     Subsection (3) provides that a nullity order made in respect of a civil partnership which is voidable annuls the civil partnership only for any period after the order is made final. The civil partnership is to be treated as if it had existed up to that date.

70.     The courts which can make these orders are defined in subsection (4) as the High Court or a county court with jurisdiction to hear civil partnership proceedings. Subsection (5) makes it clear that the powers of the court under this clause are subject to the court having jurisdiction under clauses 159 to 164 of the Bill.

Clause 37: The period before conditional orders may be made final

71.     This clause sets the period which must elapse before a dissolution, nullity or presumption of death order may be made final. By subsection (1), the period is 6 weeks from the making of the conditional order (subject to a slight modification if this period ends on a day when the court office or registry is closed). Subsection (2) gives the Lord Chancellor power to make an order substituting a different period not exceeding 6 months. Subsection (4) provides that in particular cases the court may reduce the period (this might be relevant, for example, in the case of a deathbed dissolution and formation of a new partnership).

Clause 38: Intervention of the Queen's Proctor

72.     This clause provides for the intervention of the Queen's Proctor in proceedings where an application has been made for a dissolution, nullity or presumption of death order. The court may involve the Queen's Proctor where it considers it necessary or expedient to have any question in relation to the case fully argued by counsel appointed by the Queen's Proctor, under the directions of the Attorney General. Any person may also give information to the Queen's Proctor on relevant issues at any time before the order has been made final and the Queen's Proctor can take such steps as the Attorney General considers necessary or expedient. The clause also gives the court discretion to order the payment of costs by or to the Queen's Proctor.

Clause 39: Proceedings before order has been made final

73.     This clause provides for the court to consider the position once a conditional order has been made but before it has been made final. By subsection (1), the clause applies where the Queen's Proctor, or anyone who has not been a party to the proceedings, shows that that there is cause (good reason) why the conditional order should not be made final on the ground that material facts were not put before the court. By subsection (2), the court may also consider a case under this clause where the civil partner who applied for the conditional order has not taken steps to make this final within 3 months from the earliest date when such an application could have been made, and the other civil partner applies to the court under this clause.

74.     Where this clause applies, the court may make the order final, rescind the order, direct that further enquiries are to be made, or deal with the case in such other manner as it thinks fit. By subsection (4), the court's power to make the order final applies even if the minimum period under clause 37 has not yet expired, but is subject to the restrictions imposed in clause 47(4) (relating to financial provision in separation cases) and clause 61 (restrictions on the court's powers to make orders affecting children).

Clause 40: Time bar on applications for dissolution orders

75.     This clause states that it will not be possible for an application for dissolution of a civil partnership to be made until at least 1 year after the date of formation of the civil partnership. However, matters which occurred within this 1 year period may be used in support of the application.

Clause 41: Attempts at reconciliation of civil partners

76.     This clause allows the court to adjourn an application for a dissolution or separation order if it appears that the civil partners have a reasonable possibility of achieving a reconciliation. Subsection (2) provides that rules of court must make provision for the applicant's solicitors to certify whether they have discussed with their client the possibility of reconciliation and to provide the applicant with details of persons qualified to help the civil partners effect a reconciliation.

Clause 42: Consideration by the court of certain agreements or arrangements

77.     This clause provides that the rules of court may make provision for civil partners to refer to the court an agreement or arrangement between them in connection with the dissolution of the civil partnership or with their separation. The rules may allow the court to express an opinion about whether the agreement or arrangement is reasonable, or to give directions.

Clause 43: Dissolution of civil partnership which has broken down irretrievably

78.     This clause establishes the ground on which an application for the dissolution of a civil partnership may be made and the four facts which can prove the ground for dissolution.

79.     Subsection (1) provides that the sole ground on which an application for dissolution may be made is that the civil partnership has broken down irretrievably.

80.     In order to demonstrate the irretrievable breakdown of the civil partnership the applicant must satisfy the court of one or more of the following facts set out in subsection (5):

a)     That his or her civil partner (called the respondent for the purposes of the proceedings) has behaved in such a way that the applicant cannot reasonably be expected to live with him or her;

b)     That the applicant and their civil partner have lived apart for a continuous period of at least 2 years immediately preceding the application (this is referred to in the Bill as "2 years' separation" and that their civil partner consents to a dissolution order being made;

c)     That the applicant and their civil partner have lived apart for a continuous period of at least 5 years immediately preceding the application (this is referred to as "5 years' separation");

d)     That his or her civil partner has deserted him or her for a continuous period of at least 2 years immediately preceding the making of the application.

81.     Subsection (2) provides that the court must inquire as far as possible into the facts alleged by the applicant and any facts put forward by the respondent. If the court is satisfied of any of the facts set out in subsection (5), it must make a dissolution order unless on the evidence it is not satisfied that the civil partnership has broken down irretrievably.

Clause 44: Supplemental provisions as to facts raising presumption of breakdown

82.     Subsections (1) and (2) provide that where an applicant alleges that their civil partner has behaved in such a way that they cannot reasonably be expected to live with him or her, but following the final incident used to support the fact, the civil partners have continued to cohabit for a period or periods of time amounting to less than 6 months in total, the court must disregard this time spent living together when determining whether that fact is proven.

83.     Subsections (3) and (4) provide that where a civil partner allegedly consents to the making of a dissolution order under the "2 years' separation" head, then rules of court must provide that he or she is made aware of the consequences of consenting to the order and what must be done to indicate consent.

84.     Subsection (5) allows the court to consider a period of desertion as continuing even when the civil partner concerned was incapable of continuing the necessary intention, provided the court would on the evidence have inferred that the period of desertion would have continued if the civil partner had been able to continue the intention. This would cover a situation where one civil partner deserts his or her civil partner for 2 years but is involved in an accident at some time over the 2 years which leads to a temporary loss of consciousness. This break in the "intention to desert" would not stop the 2 years from accruing.

85.     Subsection (6) provides that when considering whether a period of living apart or desertion is continuous, no account is to be taken of a period or periods of time not exceeding 6 months in total in which the civil partners resumed living together. However (as a separate issue from whether the period of living apart or desertion could be regarded as "continuous") under subsection (7) no period during which the civil partners lived together can count as part of the period of living apart or desertion. So for example, desertion or separation for 2 years can be proved, even if the civil partners lived together for, say, 2 months during the relevant period, so long as the total period of desertion or separation adds up to 2 years (excluding those 2 months).

86.     Subsection (8) provides that civil partners are to be treated as living apart unless they are living with each other in the same household.

Clause 45: Dissolution order not precluded by previous separation order etc.

87.     This clause provides that where a separation order, an order for financial relief in the magistrates' court or an occupation order under sections 33 and 37 of the Family Law Act 1996 (c. 27) has been made, either civil partner may still apply to the court for a dissolution order. The same facts as were used for the previous order may be used to support the application for a dissolution order. Under subsection (3) the court may treat the order made previously as sufficient proof of the facts alleged in support of the application for a dissolution order but must not make that order without receiving evidence from the applicant.

88.     Subsection (4) applies where an application for a dissolution order is made following a separation order or any order requiring the civil partners to live apart. If there was a period of desertion immediately preceding the application for a separation order, the parties have not resumed living together, and the separation order has been continuously in force since it was made, the period of desertion is to be treated as if it had taken place immediately prior to the application for the dissolution order. This will mean that the period of desertion can be used to support the application for a dissolution order.

89.     Under subsection (5) the court may also treat as a period of desertion to support an application for a dissolution order a period during which the respondent was subject to an injunction excluding him or her from the civil partnership home or when an order under sections 33 and 37 of the Family Law Act 1996 (c. 27) was in force prohibiting the civil partner from exercising his or her right to live in a dwelling-house used as the civil partnership home.

Clause 46: Refusal of dissolution in 5 year separation cases on grounds of grave hardship

90.     Subsection (1) provides that the respondent to an application for a dissolution order in which the applicant alleges 5 years' separation may oppose the making of a dissolution order on the ground that the dissolution of the civil partnership would result in grave financial or other hardship to him or her and that in the circumstances it would be wrong to make the order. By subsection (3) the court must consider all the circumstances, including the conduct of the civil partners and the interests of any children or other persons concerned, and if the court is satisfied that there would be severe hardship it must dismiss the application for the dissolution order. Subsection (4) provides that "hardship" includes the loss of the chance of acquiring any benefit which the respondent might acquire if the civil partnership were not dissolved.

Clause 47: Proceedings before order made final: protection for respondent in separation cases

91.     Subsection (1) provides that the court can rescind a dissolution order which has not been made final if the application was on the basis of 2 years' separation with the other civil partner's consent and the applicant misled their civil partner over any matter which led to consent being given.

92.     Subsections (2) to (5) allow the respondent to an application for a dissolution order alleging either 2 years' or 5 years' separation to apply to the court to consider his or her financial provision after dissolution of the civil partnership. The court must consider all the relevant circumstances including the age, health, conduct, earning capacities, financial resources and obligations of each civil partner and the position of the respondent on the death of the applicant, assuming the applicant died first. Under subsection (4) the court must not make the dissolution order final unless it is satisfied either that the applicant should not be required to make financial provision for the respondent or that the provision made for the respondent is reasonable and is the best that can be made in the circumstances. Under subsection (5) the court may make the dissolution order final if the circumstances make it desirable to do so without delay, provided it has obtained an undertaking from the applicant to make such financial provision for the respondent as the court may approve.

Clause 48: Grounds on which civil partnership is void

93.     This clause sets out the grounds on which a civil partnership will be void (and therefore invalid) under the law of England and Wales, where the parties registered as civil partners of each other in England and Wales. (The grounds on which the law of England and Wales will hold other civil partnerships to be void are set out in clause 52.)

94.      Paragraph (a) provides that the civil partnership will be void if, at the time when the two people registered as civil partners in England and Wales, they were not eligible to register as civil partners of each other under the requirements set out in clause 3.

95.     Paragraph (b) lists the breaches of the formal requirements which will render the civil partnership void if both civil partners were aware of them at the time of the registration. These are the failure to provide the required notice of proposed civil partnership, the civil partnership document not being duly issued or having expired, the place of registration not being the place specified in the notice(s) of proposed civil partnership and the civil partnership document, or a civil partnership registrar not being present at the registration.

96.     Paragraph (c) provides that the civil partnership will be void if the civil partnership document is void because one of the intended civil partners is a child (under the age of 18) and the issue of the civil partnership document has been forbidden by a person whose consent is required for the child to form a civil partnership.

Clause 49: Grounds on which civil partnership is voidable

97.     This clause sets out the grounds on which an application can be made for an order annulling a civil partnership on the grounds that it is voidable, where the parties registered as civil partners of each other in England and Wales. (The grounds on which the law of England and Wales will hold other civil partnerships to be voidable are set out in clause 52.) The grounds are as follows:

a)     Either of the civil partners did not validly consent to the formation of the civil partnership, through a mistake, through being put under duress or due to unsoundness of mind or otherwise.

b)     At the time of the formation of the civil partnership either of the civil partners, although able to consent to the registration was suffering from a mental disorder which made them unfitted for a civil partnership.

c)     At the time of the formation of the civil partnership one of the civil partners was pregnant (other than by the applicant, although that could only be relevant in a case involving a gender change under the Gender Recognition Bill). This is subject to clause 50(6) which ensures that the court may not make a nullity order if the applicant knew of the pregnancy at the time of the formation of the civil partnership.

d)     An interim gender recognition certificate under the Gender Recognition Bill has been issued to either civil partner after the time of the formation of the civil partnership.

e)     The respondent is a person whose gender at the time of the formation of the civil partnership had become the acquired gender under the Gender Recognition Bill. This is subject to clause 50(6) which ensures that the court may not make a nullity order if the applicant knew at the time of the formation of the civil partnership that his or her partner had changed gender.

Clause 50: Bars to relief where civil partnership is voidable

98.     Subsection (1) provides that the court must not make a nullity order on the grounds that a civil partnership is voidable if the applicant had acted towards the respondent in such a way as to indicate that he or she would not apply for a nullity order and that it would be unjust to the respondent to make the order now.

99.      Subsection (2) establishes that an application for a nullity order on the grounds that a civil partnership is voidable (other than in the circumstances dealt with by subsection (5) below) must be made within 3 years of the date of formation of the civil partnership. However subsections (3) and (4) permit the court to allow later applications where it is just to do so on the basis that the applicant suffered from mental disorder during the 3-year period.

100.      Where the application is made on the ground that an interim gender recognition certificate has been issued under the Gender Recognition Bill after the date of formation of the civil partnership, the time limit under subsection (5) is 6 months from the date of issue of that certificate.

101.     Subsection (6) provides that, where the application is made on the grounds of pregnancy at the time of formation of the civil partnership, or a change of gender previous to that date, a nullity order must not be made unless the applicant did not know of the relevant facts at the time of formation of the civil partnership.

Clause 51: Proof of certain matters not necessary to validity of civil partnership

102.     This clause provides that that where two people have registered as civil partners in England and Wales it is not necessary for them to provide evidence that any consent required under clause 4 (consent by parents etc. where one of the intended civil partners is a child) was actually given, or that the person who officiated at the signing of the civil partnership schedule was a designated civil partnership registrar for the area in which registration took place. No evidence may be given in any nullity proceedings to disprove either of these facts.

103.     The issue of consent is subject to the provisions of clause 48(c) which provides that a civil partnership will be void if it was forbidden by a person whose consent is required for a child to form a civil partnership.

Clause 52: Validity of civil partnership registered outside England and Wales

104.     This clause determines the rules to be applied when determining whether, under the law of England and Wales, a civil partnership is void or voidable where the parties did not register as civil partners in England and Wales. If the civil partnership is void or voidable, a court in England and Wales which has jurisdiction under clauses 159 to 164 may make a nullity order in respect of the civil partnership under clause 36.

105.     Subsection (1) ensures that a civil partnership formed in Scotland is void for the purposes of the law of England and Wales only if it would be void under the Scottish provisions in clause 119 of the Bill. The civil partnership will also be voidable if an interim gender recognition certificate is subsequently issued to either party under the Gender Recognition Bill.

106.     Subsection (2) ensures that a civil partnership which was registered in Northern Ireland is void or voidable for the purposes of the law of England and Wales only it would be void under the provisions applicable in Northern Ireland.

107.      Subsection (4) deals with the situation where the parties registered as civil partners outside the United Kingdom under an Order in Council made under clause 150 or 151. Orders in Council made under those clauses will include provision for determining the relevant part of the United Kingdom for certain purposes. Paragraphs (a)(i) and (b) of subsection (4) ensure that questions of nullity are then dealt with in exactly the same way as would apply under English law if the parties had registered as civil partners in that part of the United Kingdom.

108.     In addition the civil partnership will be void if the condition in clause 150(2)(a) or 151(2)(a) (whichever is relevant) was not met. Where the parties registered as civil partners at a British consulate etc., the condition is that one party must be a United Kingdom national as defined in clause 180. Where the parties registered as civil partners in the armed services, the condition is that one of the proposed civil partners is a member of the armed forces serving in the country or territory where the partnership is registered, or falls within certain other related categories as set out in clause 151(2)(a).

109.     Finally the civil partnership will also be void if there is a breach of a requirement of the Order in Council which is prescribed for this purpose by the Order itself (this power will be used to define in the Order those requirements which are mandatory in order to ensure the validity of the civil partnership).

110.     Subsection (8) sets out the rules to be applied in relation to an apparent or alleged overseas relationship. An overseas relationship can be treated as a civil partnership under Chapter 2 of Part 5. But the civil partnership will be void if it transpires that the relationship is in fact not an overseas relationship as defined in clauses 152 to 154, or if one of the requirements for the overseas relationship to be treated as a civil partnership under clauses 155 to 158 is not met. For example the civil partnership will be void if, under the law of the country where the registration took place, the formalities necessary to enter into the overseas relationship were not fulfilled or there was no capacity to enter into the overseas relationship (see clause 155(1)). It is also voidable if that is the effect of the law of the country where the registration took place (see the definition of "the relevant law") or on the grounds that an interim gender recognition certificate has been issued under the Gender Recognition Bill. But if either party was domiciled in England and Wales then the civil partnership will also be voidable in the other circumstances set out in clause 49(1).

111.     Where a civil partnership is voidable in accordance with this clause the clause 50 bars to relief are applied in the usual way. However where the civil partnership is voidable by virtue of the application of foreign law, the bars to relief will only apply in so far as they are applicable under the foreign law.