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Explanatory Notes to Civil Partnership Act 2004 (c. 33)
2004 Chapter 33 |
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These notes refer to the Civil Partnership Act 2004 (c.33) which received Royal Assent on 18th November 2004 CIVIL PARTNERSHIP ACT 2004 ________________ EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Civil Partnership Act 2004 which received Royal Assent on 18th November 2004. They have been prepared by the Department of Trade and Industry in order to assist the reader in understanding the Act. They do not form a part of the Act and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given. SUMMARY 3. The purpose of the Civil Partnership Act is to enable same-sex couples to obtain legal recognition of their relationship by forming a civil partnership. They may do so by registering as civil partners of each other provided:
4. The Act also sets out the legal consequences of forming a civil partnership, including the rights and responsibilities of civil partners. BACKGROUND 5. On 30 June 2003 the Government published a consultation paper, 'Civil Partnership: a framework for the legal recognition of same-sex couples', setting out its proposals for civil partnership. After a three-month consultation period, during which over three thousand responses were received, a report summarising the consultation findings was published in November 2003. An intention to bring forward a Civil Partnership Bill was announced in the Queen's Speech on 26 November 2003. 6. On 10 September 2003, the Scottish Executive announced that in the event that civil partnership registration was introduced in England and Wales, same-sex couples should similarly be able to form a civil partnership in Scotland in order to access a comprehensive package of rights and responsibilities in both reserved and devolved areas. The Scottish Executive therefore proposed seeking the agreement of the Scottish Parliament to the inclusion of Scottish provisions in a future Westminster Civil Partnership Bill. The Scottish Executive published a consultation document on 30 September and an analysis of consultation responses was published on 5 February 2004. The Executive subsequently reaffirmed its intention to introduce civil partnership in Scotland, if it were introduced in England and Wales. On 3 June 2004 the Scottish Parliament agreed to the inclusion of Scottish provisions in a Westminster Bill. 7. Northern Ireland Office Ministers set out their policy intentions on civil partnership in their consultation document, published on 19 December 2003. In it they announced that they supported the introduction of civil partnership in Northern Ireland and the inclusion of provisions for Northern Ireland in the Westminster Bill. The consultation period closed on 5 March 2004. Northern Ireland Office Ministers decided to take the proposal forward and establish a civil partnership registration scheme for Northern Ireland by including the necessary provisions in the Civil Partnership Bill. THE ACT 8. The Act is in 8 Parts and has 30 Schedules. 9. Part 1 describes how a civil partnership is formed and how it ends. 10. Part 2 sets out the arrangements for civil partnerships in England and Wales.
11. Part 3 sets out the arrangements for civil partnerships in Scotland.
12. Part 4 makes provision for civil partnerships in Northern Ireland.
13. Part 5 deals with civil partnerships formed or dissolved abroad.
14. Part 6 deals with relationships arising through civil partnership. 15. Part 7 contains miscellaneous provisions including those relating to social security, child support and tax credits. 16. Part 8 contains supplementary material such as powers to make regulations and orders, commencement and extent. COMMENTARY ON SECTIONS Part 1 - Introduction Section 1: Civil Partnership 17. This section establishes civil partnership as a legal relationship between two people of the same sex. Subsection (1) provides for a civil partnership to be formed in either of two ways. The first is when two people register as civil partners of each other, either in the United Kingdom (under the relevant Part of the Act) or under an Order in Council made under section 210 or 211 (which allow for registration overseas at British consulates or by armed forces personnel). The second is where the couple register an "overseas relationship" which is treated as a civil partnership under Chapter 2 of Part 5. "Overseas relationship" is defined in sections 212 to 214. Subsection (3) provides that a civil partnership only ends on death, dissolution or annulment. Part 2 - Civil Partnership: England and Wales Introduction 18. This Part of the Act, except section 35, extends to England and Wales only. Chapter 1 - Registration Section 2: Formation of civil partnership by registration 19. Subsection (1) describes the point at which a civil partnership is formed and sets out who is to be present at the registration. Two people are to be regarded as having registered as civil partners of each other once each of them has signed the civil partnership document. "The civil partnership document" is defined in section 7. Subsection (2) makes it clear that a civil partnership is formed even if the formalities set out at subsections (3) and (4) are not complied with. Subsection (3) specifies who else must sign the civil partnership document. Subsection (4) sets out what is to be recorded in the register once a civil partnership document has been signed and the administrative procedure to be completed following the civil partnership registration. 20. Subsection (5) provides that no religious service is to be used while a civil partnership registrar is officiating at the signing of a civil partnership document. Section 3: Eligibility 21. Subsection (1) provides that two people are not eligible to register as civil partners of each other if -
Section 4: Parental etc. consent where proposed civil partner under 18 22. This section sets out the provisions requiring consent where a person wishing to form a civil partnership is under 18 years of age. Part 1 of Schedule 2 identifies the appropriate person or persons who may give consent. Subsection (3) provides an exception to the requirement of consent where a civil partner has been bereaved and wishes to form a subsequent civil partnership before he or she is 18. For the purposes of Part 2 of the Act, subsection (5) defines "child" as a person who is under 18 (except where the term is used to express a relationship). Section 5: Types of pre-registration procedure 23. Subsection (1) sets out the various procedures, available in England and Wales, under which two people may register as civil partners of each other. Subsection (2) sets out the relevant modifications of those procedures which apply where one of the proposed civil partners lives in Scotland, Northern Ireland or is a member of the armed forces serving abroad, and the other has a usual residence in England and Wales, or where the proposed civil partners are former spouses, one of whom has changed sex. Subsection (3) provides for all the procedures to be subject to Schedules 1 and 2 (provisions applicable in connection with prohibited degrees of relationship and where a proposed civil partner is under 18). Subsection (4) provides that section 5 is also subject to section 249 and Schedule 23 (provisions relating to the formation of civil partnerships by persons subject to immigration control). Section 6: Place of registration 24. This section states that the place where the proposed civil partnership is to be registered must be in England and Wales, must not be in religious premises and must be specified in the notice or notices of proposed civil partnership. "Religious premises" is defined in subsection (2). Subsections (3) and (4) make it clear that in the case of registration under the standard procedure, the place of registration must be one that is open to anyone wishing to attend and that it must be agreed with the registration authority where the registration is to take place before it is specified in a notice. If the place specified in a notice is not agreed then the notice is void. Section 7: The civil partnership document 25. This section defines the term "civil partnership document" as a Registrar General's licence in relation to the special procedure and a civil partnership schedule for all other procedures. Subsection (2) provides that before a civil partnership registration can take place, the civil partnership document must be delivered to the civil partnership registrar who may then ask the proposed civil partners for any information required to be recorded in the register. 26. Sections 8 to 17 set out the standard procedure by which two people may register as civil partners of each other in England and Wales. Section 8: Notice of proposed civil partnership and declaration 27. Subsection (1) states that for two people to register as civil partners of each other they must each give a notice of proposed civil partnership and have resided in England or Wales for at least 7 days immediately before giving the notice. The information contained in the notice may be prescribed by regulations. Subsections (3) and (4) state that a notice must include a solemn declaration in writing to be made by the person giving notice. By this declaration the proposed civil partner must confirm that he or she knows of no legal impediments to the formation of the civil partnership and confirm that each proposed civil partner has had a residence in England and Wales for at least 7 days before the notice was given. The declaration must be signed by the person giving the notice and attested by the "authorised person" (as defined by subsection (6)). Subsection (5) requires the registration authority to record in the register the fact that the notice has been given and the information in it, and that the authorised person attested the declaration. Section 9: Power to require evidence of name etc. 28. This section enables a registration authority to request specified evidence to verify certain information contained in a notice of proposed civil partnership. Requests for evidence may only be made before the civil partnership schedule has been issued in accordance with section 14. Section 10: Proposed civil partnerships to be publicised 29. This section sets out which registration authority (or authorities), as well as the Registrar General, must publicise "relevant information" during the "waiting period" after a notice has been given. Subsection (2) defines "relevant information" as the names of the proposed civil partners and such other information as may be prescribed by regulations. Section 11: Meaning of the "waiting period" 30. This section defines the term "waiting period" for the purposes of Chapter 1. Section 12: Power to shorten the waiting period 31. This section enables the Registrar General, on an application being made to him, to reduce the waiting period if satisfied there are compelling reasons to do so, because of exceptional circumstances. Subsections (2) and (3) give the Registrar General the power to make procedural regulations in relation to such applications and to make regulations delegating the power to shorten the waiting period to a registration authority in prescribed cases and making provision for appeals (to the Registrar General) against any decision taken by a registration authority where this power has been delegated. Section 13: Objection to proposed civil partnership 32. This section sets out the procedure for any person to make an objection to the issue of a civil partnership schedule. The registration authority which receives an objection must record the fact that the objection has been made and the information it contains in the register as soon as possible. Section 14: Issue of civil partnership schedule 33. This section provides for the issue of a civil partnership schedule at the end of the waiting period. Subsection (2) confers a power to make provision as to the contents of the civil partnership schedule. The schedule may be issued on the request of one or both of the proposed civil partners, provided the relevant registration authority is satisfied that there is no lawful impediment to the couple forming a civil partnership and that any objections to the proposed civil partnership have been satisfactorily investigated by the relevant registration authority or have been withdrawn. "The relevant registration authority" means the authority which first records that a notice of proposed civil partnership has been given. Section 15: Appeal against refusal to issue civil partnership schedule 34. This section provides for an appeal to the Registrar General against the refusal of a registration authority to issue the civil partnership schedule. The Registrar General must either confirm the refusal or direct that a civil partnership schedule be issued. Section 16: Frivolous objections and representations: liability for costs etc. 35. This section provides for the Registrar General to deal with frivolous objections made against the issue of the civil partnership schedule. Subsection (3) imposes liability on a person who makes a frivolous objection or representation for costs of the proceedings before the Registrar General and for damages payable to the proposed civil partner to whom the objection or representation relates. Section 17: Period during which registration may take place 36. This section provides that the proposed civil partners may not form a civil partnership until the waiting period in relation to each notice of proposed civil partnership has expired. It also specifies the period of validity of a civil partnership schedule issued under the standard procedure as being 12 months, running from when notice of proposed civil partnership is recorded, and when notices are not recorded on the same day, from the earlier of the two days. After this period the civil partnership schedule becomes void and cannot be used. Fresh notices of proposed civil partnership would need to be given if the parties still intended to form a civil partnership. Section 18: House-bound persons 37. This section caters for people who wish to register as civil partners of each other at the place where one of them is house-bound. A person will be accepted as being house-bound if, in relation to that person, a statement is made by a registered medical practitioner that, in his opinion, because of illness or disability, that person ought not to move from the place where he or she is at the time when the statement is made and that this is likely to be the case for at least the following 3 months. The statement must be made not more than 14 days before the day on which each notice of proposed civil partnership is recorded. 38. Subsection (3) sets out the procedure for a housebound person to register as a civil partner. This is the same as the standard procedure -(see sections 8 - 17) but with the additional requirements that a medical statement must accompany each notice; receipt of the medical statement is recorded in the register; and the applicable period (during which the civil partnership schedule may be signed) is shortened to 3 months. 39. For the purposes of forming a civil partnership, subsection (6) treats a person in relation to whom a medical statement is made as being resident and usually resident at the place where he or she is for the time being, even if this would not otherwise be the case. Section 19: Detained persons 40. This section enables two people to register as civil partners of each other at the place where one of them is detained. 41. Subsection (2) defines "detained" as meaning detained as a patient in a hospital (other than as a short-term detainee under the Mental Health Act 1983 (c20)) or in a prison or other place to which the Prison Act 1952 (c. 52) applies. 42. Subsection (3) sets out the procedure for registration in such a case. This is the same as the standard procedure (see sections 8 - 17) with the additional requirements that a supporting statement must accompany each notice; receipt of the supporting statement must be recorded in the register and the applicable period (during which the civil partnership schedule must be signed) is shortened to 3 months. 43. Subsection (4) sets out that a supporting statement is one made by the responsible authority (as defined by subsection (6)) identifying the establishment where the person is detained and confirming that the responsible authority has no objection to that place being specified in a notice of proposed civil partnership as the place at which the detained person is to register as a civil partner. 44. For the purposes of forming a civil partnership, subsection (8) treats a detained person as being resident and usually resident at the place where he or she is for the time being, even if this would not otherwise be the case. Section 20: Modified procedures for certain non-residents 45. Section 20 modifies the standard procedure and the procedures for house-bound persons and for detained persons where two people wish to register as civil partners of each other in England and Wales and one of them is resident in England and Wales but the other resides in Scotland or in Northern Ireland or is a member of Her Majesty's forces serving overseas. 46. The modifications are set out in subsection (5). The person resident in England and Wales is required to give a notice of proposed civil partnership but the other person is not required to do so. A registration authority must not issue a civil partnership schedule unless one of the proposed civil partners produces a certificate of no impediment issued under section 97, 150 or 239. In the case of the standard procedure, where one of the proposed civil partners resides in Scotland or Northern Ireland, the applicable period (during which the civil partnership schedule must be signed) is shortened to 3 months. Section 21: Notice of proposed civil partnership 47. Sections 21 to 27 deal with "the special procedure". This enables a civil partnership registration to take place very quickly, under a Registrar General's licence, where one of the proposed civil partners is seriously ill and not expected to recover. The licence is the equivalent of a civil partnership schedule but can be issued by a registration authority only on the authority of the Registrar General. It is the document that is signed by the couple to form the civil partnership. 48. Section 21 relaxes the normal requirement that both proposed civil partners must give notice and allows one of the proposed civil partners to give a notice of proposed civil partnership under the special procedure, as long as that person complies with any requirement made under section 22. Subsection (3) applies most of the requirements of subsections (3) to (6) of section 8 relating to the declaration to be made when giving notice. The requirement as to residence (in section 8(4)(b)) is not applied. Section 22: Evidence to be produced 49. This section sets out the evidence that the Registrar General may require the person giving the notice to produce to the registration authority in order to satisfy the Registrar General that the special procedure should be used. 50. Subsection (3) makes it clear that a certificate from a registered medical practitioner is sufficient evidence of the seriousness of a proposed civil partner's medical condition and of that person's ability to understand the nature and purport of signing a Registrar General's licence. Section 23: Application to be reported to the Registrar General 51. This section requires a registration authority to inform the Registrar General if it receives any notice of proposed civil partnership under the special procedure. The authority must also inform the Registrar General about supporting evidence and comply with any directions that he may give for verifying the evidence. Section 24: Objection to issue of Registrar General's licence 52. This section sets out the procedure for any person to make an objection to the Registrar General giving authority for the issue of his licence by giving a notice of objection to the Registrar General or any registration authority. A registration authority that receives notice of objection must record the fact that it has been given and the information it contains in the register as soon as possible. Section 25: Issue of Registrar General's licence 53. This section applies where a notice of proposed civil partnership has been given to a registration authority under the special procedure. The registration authority may issue a Register General's licence only if given authority to do so by the Registrar General. The Registrar General may not give his authority unless he is satisfied that one of the proposed civil partners is seriously ill and not expected to recover. If he is so satisfied, he must give his authority unless he is also satisfied that there is a lawful impediment to the issue of the licence. If an objection has been made to the Registrar General giving his authority, he must not give his authority until he has investigated the objection and has decided whether it ought to obstruct the issue of the licence or the objection has been withdrawn. Section 26: Frivolous objections: liability for costs 54. This section means that a person who makes a frivolous objection will be liable to costs and damages. | |
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