Civil Partnership Act 2004

Chapter 3 Dissolution etc.: jurisdiction and recognition

Introduction

219 Power to make provision corresponding to EC Regulation 2201/2003

(1) The Lord Chancellor may by regulations make provision—

(a) as to the jurisdiction of courts in England and Wales or Northern Ireland in proceedings for the dissolution or annulment of a civil partnership or for legal separation of the civil partners in cases where a civil partner—

(i) is or has been habitually resident in a member State,

(ii) is a national of a member State, or

(iii) is domiciled in a part of the United Kingdom or the Republic of Ireland, and

(b) as to the recognition in England and Wales or Northern Ireland of any judgment of a court of another member State which orders the dissolution or annulment of a civil partnership or the legal separation of the civil partners.

(2) The Scottish Ministers may by regulations make provision—

(a) as to the jurisdiction of courts in Scotland in proceedings for the dissolution or annulment of a civil partnership or for legal separation of the civil partners in such cases as are mentioned in subsection (1)(a), and

(b) as to the recognition in Scotland of any such judgment as is mentioned in subsection (1)(b).

(3) The regulations may in particular make provision corresponding to that made by Council Regulation (EC) No 2201/2003 of 27th November 2003 in relation to jurisdiction and the recognition and enforcement of judgments in matrimonial matters.

(4) The regulations may provide that for the purposes of this Part and the regulations “member State” means—

(a) all member States with the exception of such member States as are specified in the regulations, or

(b) such member States as are specified in the regulations.

(5) The regulations may make provision under subsections (1)(b) and (2)(b) which applies even if the date of the dissolution, annulment or legal separation is earlier than the date on which this section comes into force.

(6) Regulations under subsection (1) are to be made by statutory instrument and may only be made if a draft has been laid before and approved by resolution of each House of Parliament.

(7) Regulations under subsection (2) are to be made by statutory instrument and may only be made if a draft has been laid before and approved by resolution of the Scottish Parliament.

(8) In this Part “section 219 regulations” means regulations made under this section.

Jurisdiction of courts in England and Wales

220 Meaning of “the court”

In sections 221 to 224 “the court” means—

(a) the High Court, or

(b) if a county court has jurisdiction by virtue of Part 5 of the Matrimonial and Family Proceedings Act 1984 (c. 42), a county court.

221 Proceedings for dissolution, separation or nullity order

(1) The court has jurisdiction to entertain proceedings for a dissolution order or a separation order if (and only if)—

(a) the court has jurisdiction under section 219 regulations,

(b) no court has, or is recognised as having, jurisdiction under section 219 regulations and either civil partner is domiciled in England and Wales 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 other in England or Wales,

(ii) no court has, or is recognised as having, jurisdiction under section 219 regulations, and

(iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.

(2) The court has jurisdiction to entertain proceedings for a nullity order if (and only if)—

(a) the court has jurisdiction under section 219 regulations,

(b) no court has, or is recognised as having, jurisdiction under section 219 regulations and either civil partner—

(i) is domiciled in England and Wales on the date when the proceedings are begun, or

(ii) died before that date and either was at death domiciled in England and Wales or had been habitually resident in England and Wales throughout the period of 1 year ending with the date of death, or

(c) the following conditions are met—

(i) the two people concerned registered as civil partners of each other in England or Wales,

(ii) no court has, or is recognised as having, jurisdiction under section 219 regulations, and

(iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.

(3) At any time when proceedings are pending in respect of which the court has jurisdiction by virtue of subsection (1) or (2) (or this subsection), the court also has jurisdiction to entertain other proceedings, in respect of the same civil partnership, for a dissolution, separation or nullity order, even though that jurisdiction would not be exercisable under subsection (1) or (2).

222 Proceedings for presumption of death order

The court has jurisdiction to entertain proceedings for a presumption of death order if (and only if)—

(a) the applicant is domiciled in England and Wales on the date when the proceedings are begun,

(b) the applicant was habitually resident in England and Wales throughout the period of 1 year ending with that date, or

(c) the two people concerned registered as civil partners of each other in England and Wales and it appears to the court to be in the interests of justice to assume jurisdiction in the case.

223 Proceedings for dissolution, nullity or separation order: supplementary

(1) Rules of court may make provision in relation to civil partnerships corresponding to the provision made in relation to marriages by Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 (c. 45).

(2) The rules may in particular make provision—

(a) for the provision of information by applicants and respondents in proceedings for dissolution, nullity or separation orders where proceedings relating to the same civil partnership are continuing in another jurisdiction, and

(b) for proceedings before the court to be stayed by the court where there are concurrent proceedings elsewhere in respect of the same civil partnership.

224 Applications for declarations as to validity etc.

The court has jurisdiction to entertain an application under section 58 if (and only if)—

(a) either of the civil partners in the civil partnership to which the application relates—

(i) is domiciled in England and Wales on the date of the application,

(ii) has been habitually resident in England and Wales throughout the period of 1 year ending with that date, or

(iii) died before that date and either was at death domiciled in England and Wales or had been habitually resident in England and Wales throughout the period of 1 year ending with the date of death, or

(b) the two people concerned registered as civil partners of each other in England and Wales and it appears to the court to be in the interests of justice to assume jurisdiction in the case.

Jurisdiction of Scottish courts

225 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 219 regulations,

(b) no court has, or is recognised as having, jurisdiction under section 219 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 other in Scotland,

(ii) no court has, or is recognised as having, jurisdiction under section 219 regulations, and

(iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.

(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

(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)—

(a) the Court has jurisdiction under section 219 regulations,

(b) no court has, or is recognised as having, jurisdiction under section 219 regulations and either of the ostensible civil partners—

(i) is domiciled in Scotland on the date when the proceedings are begun, or

(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, or

(c) the following conditions are met—

(i) the two people concerned registered as civil partners of each other in Scotland,

(ii) no court has, or is recognised as having, jurisdiction under section 219 regulations, and

(iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.

(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 has jurisdiction to entertain other proceedings, in respect of the same civil partnership (or ostensible civil partnership), for dissolution, separation or (but only where the court is the Court of Session) declarator of nullity, even though that jurisdiction would not be exercisable under any of subsections (1) to (3).

226 Sisting of proceedings

(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—

(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 elsewhere in respect of the same civil partnership (or ostensible civil partnership).

227 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 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 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 219 regulations, 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 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) 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.

Jurisdiction of courts in Northern Ireland

228 Meaning of “the court”

In sections 229 to 232 “the court” has the meaning given by section 188.

229 Proceedings for dissolution, separation or nullity order

(1) The court has jurisdiction to entertain proceedings for a dissolution order or a separation order if (and only if)—

(a) the court has jurisdiction under section 219 regulations,

(b) no court has, or is recognised as having, jurisdiction under section 219 regulations and either civil partner is domiciled in Northern Ireland 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 other in Northern Ireland,

(ii) no court has, or is recognised as having, jurisdiction under section 219 regulations, and

(iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.

(2) The court has jurisdiction to entertain proceedings for a nullity order if (and only if)—

(a) the court has jurisdiction under section 219 regulations,

(b) no court has, or is recognised as having, jurisdiction under section 219 regulations and either civil partner—

(i) is domiciled in Northern Ireland on the date when the proceedings are begun, or

(ii) died before that date and either was at death domiciled in Northern Ireland or had been habitually resident in Northern Ireland throughout the period of 1 year ending with the date of death, or

(c) the following conditions are met—

(i) the two people concerned registered as civil partners of each other in Northern Ireland,

(ii) no court has, or is recognised as having, jurisdiction under section 219 regulations, and

(iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.

(3) At any time when proceedings are pending in respect of which the court has jurisdiction by virtue of subsection (1) or (2) (or this subsection), the court also has jurisdiction to entertain other proceedings, in respect of the same civil partnership, for a dissolution, separation or nullity order, even though that jurisdiction would not be exercisable under subsection (1) or (2).

230 Proceedings for presumption of death order

The High Court has jurisdiction to entertain proceedings for a presumption of death order if (and only if)—

(a) the applicant is domiciled in Northern Ireland on the date when the proceedings are begun,

(b) the applicant was habitually resident in Northern Ireland throughout the period of 1 year ending with that date, or

(c) the two people concerned registered as civil partners of each other in Northern Ireland and it appears to the High Court to be in the interests of justice to assume jurisdiction in the case.

231 Proceedings for dissolution, nullity or separation order: supplementary

(1) Rules of court may make provision in relation to civil partnerships corresponding to the provision made in relation to marriages by Schedule 1 to the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)).

(2) The rules may in particular make provision—

(a) for the provision of information by applicants and respondents in proceedings for dissolution, nullity or separation orders where proceedings relating to the same civil partnership are continuing in another jurisdiction, and

(b) for proceedings before the court to be stayed by the court where there are concurrent proceedings elsewhere in respect of the same civil partnership.

232 Applications for declarations as to validity etc.

The court has jurisdiction to entertain an application under section 181 if (and only if)—

(a) either of the civil partners in the civil partnership to which the application relates—

(i) is domiciled in Northern Ireland on the date of the application,

(ii) has been habitually resident in Northern Ireland throughout the period of 1 year ending with that date, or

(iii) died before that date and either was at death domiciled in Northern Ireland or had been habitually resident in Northern Ireland throughout the period of 1 year ending with the date of death, or

(b) the two people concerned registered as civil partners of each other in Northern Ireland and it appears to the court to be in the interests of justice to assume jurisdiction in the case.

Recognition of dissolution, annulment and separation

233 Effect of dissolution, annulment or separation obtained in the UK

(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 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 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 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.

234 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 235 to 237.

(2) This section and sections 235 to 237 do not apply to an overseas dissolution, annulment or legal separation as regards which provision as to recognition is made by section 219 regulations.

(3) For the purposes of subsections (1) and (2) and sections 235 to 237, 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 outside the United Kingdom (whether before or after this section comes into force).

235 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 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

(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,

(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

(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—

(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 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.

236 Refusal of recognition

(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—

(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 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—

(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 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

(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

(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 separation would be manifestly contrary to public policy.

(4) In this section—

• “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 235.

237 Supplementary provisions relating to recognition of dissolution etc.

(1) For the purposes of sections 235 and 236, 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 question of recognition arises.

(2) The Lord Chancellor or the Scottish Ministers may by regulations make provision—

(a) applying sections 235 and 236 and subsection (1) with modifications in relation to any country whose territories have different systems of law in force in matters of dissolution, annulment or legal separation;

(b) applying sections 235 and 236 with modifications in relation to—

(i) an overseas dissolution, annulment or legal separation in the case of an overseas relationship (or an apparent or alleged overseas relationship);

(ii) any case where a civil partner is domiciled in a country or territory whose law does not recognise legal relationships between two people of the same sex;

(c) with respect to recognition of the validity of an overseas dissolution, annulment or legal separation in cases where there are cross-proceedings;

(d) with respect to cases where a legal separation is converted under the law of the country or territory in which it is obtained into a dissolution which is effective under the law of that country or territory;

(e) with respect to proof of findings of fact made in proceedings in any country or territory outside the United Kingdom.

(3) The power to make regulations under subsection (2) is exercisable by statutory instrument.

(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.

(5) In this section (except subsection (4)) and sections 233 to 236 and 238—

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

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

• “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.

238 Non-recognition elsewhere of dissolution or annulment

(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

(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 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.