Section 55: Presumption of death orders

112.     This section gives the court power to make a presumption of death order, on the application of a civil partner, if satisfied that there are reasonable grounds for believing that the other civil partner is dead. The fact that the other civil partner has been absent from the applicant for a continuous period of 7 years or more and that the applicant has no reason to believe that he or she has been living during that time will be accepted as evidence that the other civil partner is dead until the contrary is proved.

Section 56: Separation orders

113.     This section allows an application to be made for a separation order on the basis of the same facts as are required for an order for dissolution of a civil partnership. The court must inquire as far as possible into the facts alleged by the applicant and any facts put forward by his or her civil partner (referred to as the respondent for the purpose of the proceedings). If the court is satisfied of the facts alleged it must make a separation order (subject to the provisions of section 63 relating to children). However it is irrelevant whether the civil partnership has broken down irretrievably.

Section 57: Effect of separation order

114.     This section provides that, if a civil partner dies without making a will (intestate) at a time when a separation order is in force and the separation is continuing, the rules in respect of the passing of intestate estates shall be applied as if his or her surviving (but separated) civil partner were also dead.

Section 58: Declarations

115.     This section provides for people to apply to the High Court or a county court for declarations regarding the status of a civil partnership. These applications cover its validity, that it was or was not in existence on a certain date, and declarations as to whether a dissolution, annulment or legal separation obtained outside England and Wales is or is not entitled to recognition in England and Wales.

116.     Under subsection (2) if the applicant is not one of the civil partners the court must refuse to hear the application if it considers that the applicant has insufficient interest in the outcome.

Section 59: General provisions as to making and effect of declarations

117.     This section provides that where an application is made under section 58 and the truth of the proposition to be declared is proved to the satisfaction of the court, the court must make the declaration requested unless it would be manifestly contrary to public policy to do so. If the court dismisses the application, it must not make any other declaration which has not been applied for. The court cannot make a declaration that a civil partnership was void at its inception. Nothing in this section will prevent the court from being able to make a nullity order in respect of the civil partnership.

Section 60: The Attorney General and proceedings for declarations

118.     This section provides that, in any case where an application is made for a declaration under section 58, the court may direct that the appropriate papers in the matter should be sent to the Attorney General. The Attorney General may in any event intervene in proceedings for a declaration under section 58 as he thinks necessary or expedient, and may argue any question which the court thinks should be fully argued. Subsection (3) enables the court to make an order for the parties to the proceedings to pay the costs incurred by the Attorney General if this is justified.

Section 61: Supplementary provisions as to declarations

119.     This section provides for rules of court to determine the form of an application under section 58 for a declaration, and of the declaration itself. The rules may provide for the information to be supplied by the applicant and for notice of the application to be served on the Attorney General and on persons who may be affected by the declaration.

120.     Subsection (3) provides that no proceedings under section 58 will affect any final order or judgment already given. Subsection (4) allows the court to hear any application under section 58 (or any part of it) in private (and by subsection (5) any application for such a direction must itself be heard in private unless the court directs otherwise).

Section 62: Relief for respondent in dissolution proceedings

121.     This section provides that if the respondent in dissolution proceedings alleges and proves any of the facts which the applicant had to satisfy the court of, the court may grant the respondent the relief that would normally be granted to an applicant who had proved such facts, as if it had been the respondent who had made the application.

Section 63: Restrictions on making of orders affecting children

122.     This section provides that in any proceedings for a dissolution, nullity or separation order the court must consider whether there are any children for whom the court should exercise its powers under the Children Act 1989 (c. 41) in order to safeguard their welfare and provide for their upbringing. If necessary the court may direct that the dissolution, nullity or separation order is not to be made final until the court has considered whether to exercise those powers. The provisions apply to any child of the family who is under 16 years of age at the date the court considers the position and also to children of the family over 16 if the court directs that they should also be included in its consideration.

Section 64: Parties to proceedings under this chapter

123.     This section allows rules of court to be made to allow for parties to be joined to proceedings for dissolution, nullity or separation if they are involved in allegations of improper conduct made in the proceedings. The rules may provide for the court to dismiss from the proceedings any parties whom it has joined. Rules may also make provision as to the persons who are to be parties to an application for a declaration. Subsection (3) enables the court to permit a person to intervene if it thinks he or she should be made a party.

Chapter 3 - Property and financial arrangements

Section 65: Contribution by civil partner to property improvement

124.     This section provides that where a civil partner has made a substantial contribution in money or money's worth to the improvement of property in which either or both the civil partners have an interest he or she is to be treated as having acquired a share or an enlarged share in that property. The extent of the share will be determined by any agreement made between the parties. Alternatively if there is no agreement, it will be determined by what may seem in all the circumstances just to any court before which the question of the existence or extent of the beneficial interest of either of the civil partners arises. The contributing civil partner will not be treated as acquiring a share or an enlarged share where there is an express or implied agreement between the parties to the contrary.

Section 66: Disputes between civil partners about property

125.     This section enables civil partners to refer disputes over property to court. It provides that civil partners may apply to the High Court or to a county court in respect of any question relating to the title to or the possession of property. The court may make such order with respect to the property as it thinks fit, including an order for the sale of the property.

Section 67: Applications under section 66 where property not in possession etc.

126.     This section allows one civil partner (A) to make an application under section 66 where the other civil partner (B) no longer has the money or property concerned or A does not know whether B still has the money or property. The power of the court to make orders under section 66 includes the power to order B to pay to A such sum of money as seems appropriate or to make any other order which it could have made under section 64.

Section 68: Applications under section 66 by former civil partners

127.     This section allows a former civil partner to make an application to the court under section 66 in respect of a dispute over property despite the fact that the civil partnership has been dissolved or annulled. The application must be made within 3 years of the date of dissolution or annulment of the civil partnership.

Section 69: Actions in tort between civil partners

128.     This section enables the court to stay proceedings in tort brought by one civil partner against the other during their civil partnership if it appears that neither party would substantially benefit from continuation of the proceedings, or where the issue could better be resolved by an application under section 66. It also enables the court to exercise any of the powers it could exercise under section 66 or give any directions as it thinks fit for the disposal, under that section, of any question arising in the proceedings.

Section 70: Assurance policy by civil partner for benefit of other civil partner etc.

129.     This section extends the application of section 11 of the Married Women's Property Act 1882 (c.75) to civil partners, so that if a civil partner takes out a life insurance policy to provide for his or her civil partner or children the money payable under the policy is not to form part of the estate of the insured.

Section 71: Wills, administration of estates and family provision

130.     This section introduces Schedule 4 which amends legislative provisions relating to wills, the administration of estates and family provision so that civil partners will receive the same treatment as married people.

Section 72: Financial relief for civil partners and children of the family

131.     Subsection (1) introduces Schedule 5, which makes provision for financial relief for civil partners which corresponds to the relief available to married couples in the High Court or a county court under Part 2 of the Matrimonial Causes Act 1973 when they go through divorce, nullity or judicial separation proceedings.

132.     Subsection (2) provides that if the effect of rules of law is that provisions for financial relief under Part 2 of the Matrimonial Causes Act 1973 are interpreted as being available in the case of the dissolution of a marriage on the ground of presumed death, then those rules of law will also apply to the corresponding financial provisions in Schedule 5 to the Act for civil partners, with any necessary modifications. This is to allow case law to be available to civil partners which allows for financial relief to be available if the person who was presumed dead is subsequently proved to be alive.

133.     Subsection (3) introduces Schedule 6, which provides civil partners with the right to apply for financial relief in magistrates' courts in a way that corresponds to the rights that exist for married people under the Domestic Proceedings and Magistrates Courts Act 1978 (c.22).

134.     Subsection (4) introduces Schedule 7, which contains provisions for financial relief in England and Wales after a civil partnership has been dissolved or annulled or the civil partners have been legally separated in a country outside the British Islands. "British Islands" is defined in the Interpretation Act 1978 (c. 30) as comprising the United Kingdom, the Channel Islands and the Isle of Man.

Chapter 4 - Civil partnership agreements

Section 73: Civil partnership agreements unenforceable

135.     This section provides that an agreement to form a civil partnership ("a civil partnership agreement") does not constitute a contract giving rise to legal rights under the law of England and Wales and will not be enforceable.

136.     Subsection (2) provides that no action can be taken over any breach of a civil partnership agreement.

137.     Subsection (4) provides that the section will apply to civil partnership agreements entered into both before and after the section comes into force but it will not affect any legal action which has begun before the section comes into force.

Section 74: Property where civil partnership agreement is terminated

138.     This section applies when a civil partnership agreement is terminated. It provides that section 65 (contributions to property improvement by a civil partner) and sections 66 and 67 (disputes between civil partners about property and applications where property is not in possession) will apply in relation to property in which either or both of the parties to the agreement had a beneficial interest while the agreement was in force.

139.     An application made using the provisions of sections 66 and 67 must be made within 3 years of the date of termination of the civil partnership agreement.

140.     Subsection (5) provides that a person who makes a gift to the other person on the understanding that it will be returned if the civil partnership agreement is terminated is not prevented from recovering the property merely because he or she terminated the agreement.

Chapter 5 - Children

141.     This Chapter makes various amendments to the Children Act 1989 and the Adoption and Children Act 2002 to reflect the creation of the new relationship of civil partnership.

Section 75: Parental responsibility, children of the family and relatives

142.     This section amends various provisions of the Children Act 1989 ("the 1989 Act") to put civil partners on the same footing as married couples.

143.     Subsection (2) amends section 4A(1) of the 1989 Act to enable a civil partner to acquire parental responsibility of his or her civil partner's child in the same way as a person who is married to the parent of the child (but is not that child's parent).

144.     Subsection (3) amends the definition of "child of the family" in section 105(1) of the 1989 Act to include a child of both civil partners and any other child who has been treated as a child of the family by both civil partners, unless the child had been placed with the civil partners by a local authority or a voluntary organisation as foster parents.

145.     Subsection (4) amends the definition of "relative" in section 105 (1) of the 1989 Act to replace "by affinity" with "by marriage or civil partnership".

Section 76: Guardianship

146.     This section amends section 6 of the 1989 Act in relation to the revocation and disclaimer of appointments of guardians. Under section 5(3) and (4) of the 1989 Act a parent or guardian may appoint any person to act as the guardian of a child in his or her place. This section inserts a provision into section 6 of the 1989 Act so that where a person appoints his or her civil partner to be the guardian of a child that appointment is revoked if the civil partnership is dissolved or annulled, unless the appointment itself indicates that a dissolution or annulment of the civil partnership should not affect the appointment.

Section 77: Entitlement to apply for a residence or contact order

147.     This section amends section 10(5) of the 1989 Act to add a civil partner in a civil partnership to the class of people who are able to apply for a residence or contact order. The amendment enables civil partners to apply for an order whether or not the civil partnership subsists.

Section 78: Financial provision for children

148.     This Section amends Schedule 1 to the 1989 Act by adding to the definition of periodical payment orders in paragraph 2(6) of that Schedule orders under the provisions of Parts 1 and 9 of Schedule 5 and under Schedule 6 to this Act. This will enable courts to make orders for periodical payments to be made from one civil partner to the other or to a child of the family, or to a particular person for the benefit of a child of the family.

149.     Subsection (3) amends Paragraph 15(2) of Schedule 1 to the 1989 Act so that a local authority will not be able to make a contribution towards the maintenance of a child who is subject to a residence order where the person with whom the child is living is a parent of the child, or the husband or wife or civil partner of a parent of the child.

150.     Subsection (4) extends the meaning of "parent" in paragraph 16(2) of Schedule 1 to the 1989 Act to include any civil partner in a partnership, whether it is still in existence or whether it has been brought to an end, for whom the child concerned is a child of the family.

Section 79: Adoption

151.     This section amends the Adoption and Children Act 2002 ("the 2002 Act") to ensure that the relationship of civil partnership is recognised for the purposes of adoption.

152.     Subsection (2) amends section 21(4)(c) of the 2002 Act to allow a placement order to end when a child forms a civil partnership.

153.     Subsection (3) inserts an additional subsection in section 47 of the 2002 Act so that an adoption order cannot be made in respect of any person who is in a civil partnership or has been in a civil partnership.

154.     Subsection (4) amends section 51(1) of the 2002 Act to allow for an adoption order to be made on the application of one person where that person is over the age of 21 years and is not married or is not a civil partner.

155.     Subsection (5) inserts an additional subsection in section 51 of the 2002 Act to set out the circumstances where one member of a civil partnership may apply for an adoption order on their own and not as a couple. The circumstances are that: the person's civil partner cannot be found; the civil partners have separated and are living apart, and the separation is likely to be permanent; or the person's civil partner is incapable of making an application for an adoption order because of physical or mental ill-health.

156.     Subsection (6) amends section 64 of the 2002 Act to include a civil partnership. Section 64(5) enables fees to be prescribed in respect of persons who apply to the adoption agency under sections 60, 61 or 62 for information. The exception is amended to provide that the adopted person cannot be charged in respect of any information disclosed to him about any person who but for his adoption would be related to him by blood, including half-blood, marriage or civil partnership.

157.     Subsection (7) amends section 74(1) of the 2002 Act to ensure that the status conferred as a consequence of an adoption order does not apply for the purposes of either Schedule 1 to the Civil Partnership Act (prohibited degrees of relationship) or Schedule 1 to the Marriage Act 1949.

158.     Subsection (8) amends section 79(7) of the 2002 Act to ensure that an adopted person who intends to form a civil partnership can apply to the Registrar General for him to check that the person, with whom the applicant intends to form a civil partnership, does not fall within the prohibited degrees.

159.     Subsection (9) amends section 81 of the 2002 Act to ensure that the meaning of "relative" for the purposes of an entry in the adoption contact register includes a person related by civil partnership.

160.     Subsection (10) ensures that the meaning of "relative" in section 98 of the 2002 Act includes a person related by civil partnership. Section 98 of the 2002 Act amplifies the regulation-making power in section 9 to provide that the appropriate Minister may make regulations in connection with adoptions made before the commencement of sections 56 to 65. Section 98(1) of the 2002 Act provides that regulations may make provision for assisting adults adopted before the appointed day to obtain information about their adoption and to facilitate contact between them and their relatives.

161.     Subsection (11) extends the meaning of "relative" in relation to a child in section 144(1) of the 2002 Act to include people related by civil partnership as well as by marriage. Section 144 of the 2002 Act provides general interpretation.

162.     Subsection (12) amends the definition (for the purposes of that Act) of "couple" in section 144(4) of the 2002 Act to include two people who are civil partners of each other. With the amendment made by the Civil Partnership Act, a couple means a married couple, two people who are civil partners of each other, or two people, whether of different sexes or of the same sex, living as partners in an enduring family relationship.

Chapter 6 - Miscellaneous

Section 80: False statements etc. with reference to civil partnerships

163.     Subsection (1) makes it an offence knowingly to make certain false statements or representations. For example, a person who signs a declaration under section 8 that he is free to form a civil partnership, knowing that the declaration is false, commits an offence. A person guilty of an offence under subsection (1) is liable on conviction on indictment to imprisonment, for a term not exceeding 7 years, or to a fine (or both) and on summary conviction, to a fine not exceeding the statutory maximum. These provisions are similar to those in section 3(1) of the Perjury Act 1911 under which it is an offence to make false statements or representations with reference to marriage. The effect of subsection (4) is that all the other relevant provisions in the Perjury Act 1911 will apply, without having to replicate them in the Civil Partnership Act. So, for example, section 7(1) of the Perjury Act, which applies to people who aid, abet etc offences under that Act, would apply to a person who helps another person to commit an offence under section 80.

Section 81: Housing and tenancies

164.     This section introduces Schedule 8, which makes amendments to a range of enactments relating to housing and tenancies.

Section 82: Family homes and domestic violence

165.     This section introduces Schedule 9, which amends Part 4 of the Family Law Act 1996 and related enactments so that they apply in relation to civil partnerships as they apply in relation to marriages. The amendments will mean that civil partners have the same rights to occupy the civil partnership home as married persons have to occupy the matrimonial home. In addition civil partners will be able to apply for non-molestation orders and occupation orders. Occupation orders are orders regulating occupation of the home. An occupation order might, for example, exclude the respondent from the home and vicinity of the home or prohibit, terminate or restrict the exercise of the respondent's occupation rights.

Section 83: Fatal accidents claims

166.     This section extends the provisions of the Fatal Accidents Act 1976 to include civil partners, so that where a person's death is caused by the wrongful act, neglect or default of another person, a civil partner of the deceased will be able to claim compensation in the same way as a spouse.

167.     Subsections (2) and (3) widen the definition of "dependant" for the purposes of a right of action under the 1976 Act to include a civil partner of the deceased, a person living as the civil partner of the deceased and a former civil partner of the deceased. Subsection (4) widens the definition of "dependant" to include any person (not being a child of the deceased) who was treated by the deceased as a child of the family, in relation to any civil partnership to which the deceased was at any time a party.

168.     Subsections (5) to (8) make consequential provision related to these changes.

Section 84: Evidence

169.     Subsection (1) of this section provides that enactments or rules of law applying to the giving of evidence by a spouse will apply also to the giving of evidence by a civil partner.

170.     However, subsection (2) sets out that the general provision in subsection (1) is subject to any specific amendment made by or under the Act which relates to the giving of evidence by a civil partner. This takes account of the fact that in some instances it is more appropriate to amend specific provisions in other enactments or rules. A number of the amendments made by Schedule 27 relate specifically to the giving of evidence by a civil partner.

171.     Subsection (5) provides that any rule of law which makes evidence of family tradition admissible to prove or disprove the existence of a marriage is to apply in a similar way in order to prove or disprove the existence of a civil partnership.

Part 3 - Civil Partnerships: Scotland

Introduction

172.     This Part extends to Scotland only (see section 252(2)).

Chapter 1 - Formation and eligibility

Section 85: Formation of civil partnership by registration

173.     This section provides that a civil partnership is formed when both persons sign the completed civil partnership schedule before two witnesses aged 16 years or over and an authorised registrar (all being present). Registering as civil partners of each other creates the legal relationship between the two persons, but registration cannot take place unless both persons are eligible to be registered.

Section 86: Eligibility

174.     Subsection (1) provides that two people are not eligible to register in Scotland as civil partners of each other if -

a)     they are not of the same sex,

b)     they are related in a forbidden degree

c)     either of them is under 16

d)     either of them is married or already in a civil partnership

e)     either is incapable of

(i)     understanding the nature of a civil partnership

(ii)     validly consenting to its formation

175.     Subsection (2) defines "forbidden degree" by reference to columns 1 and 2 of Schedule 10.

176.     Subsections (3) and (4) set out the circumstances in which persons over 21, within the relationships of affinity set out in paragraphs 2 and 3 of Schedule 10, will not be related in a forbidden degree.

177.     Subsections (5) to (7) apply the provisions of this section and Schedule 10, with appropriate modifications, to the case of a person wishing to form a civil partnership in his acquired gender under the Gender Recognition Act 2004.

178.     Subsections (9) and (10) set out that half blood relationships and adoptive relationships are included within the degrees of relationship specified in paragraph 1 of Schedule 10. In practice, this means for example, that a person could not form a civil partnership with their sibling, whether that sibling was full blood, half blood or adopted.