Part 2Civil partnership: England and Wales
Chapter 2Dissolution, nullity and other proceedings
Dissolution of civil partnership
44Dissolution of civil partnership which has broken down irretrievably
1
Subject to section 41, an application for a dissolution order may be made to the court by either civil partner on the ground that the civil partnership has broken down irretrievably.
2
On an application for a dissolution order the court must inquire, so far as it reasonably can, into—
a
the facts alleged by the applicant, and
b
any facts alleged by the respondent.
3
The court hearing an application for a dissolution order must not hold that the civil partnership has broken down irretrievably unless the applicant satisfies the court of one or more of the facts described in subsection (5)(a), (b), (c) or (d).
4
But if the court is satisfied of any of those facts, it must make a dissolution order unless it is satisfied on all the evidence that the civil partnership has not broken down irretrievably.
5
The facts referred to in subsections (3) and (4) are—
a
that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;
b
that—
i
the applicant and the respondent have lived apart for a continuous period of at least 2 years immediately preceding the making of the application (“2 years' separation”), and
ii
the respondent consents to a dissolution order being made;
c
that the applicant and the respondent have lived apart for a continuous period of at least 5 years immediately preceding the making of the application (“5 years' separation”);
d
that the respondent has deserted the applicant for a continuous period of at least 2 years immediately preceding the making of the application.
I145Supplemental provisions as to facts raising presumption of breakdown
1
Subsection (2) applies if—
a
in any proceedings for a dissolution order the applicant alleges, in reliance on section 44(5)(a), that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent, but
b
after the date of the occurrence of the final incident relied on by the applicant and held by the court to support his allegation, the applicant and the respondent have lived together for a period (or periods) which does not, or which taken together do not, exceed 6 months.
2
The fact that the applicant and respondent have lived together as mentioned in subsection (1)(b) must be disregarded in determining, for the purposes of section 44(5)(a), whether the applicant cannot reasonably be expected to live with the respondent.
3
Subsection (4) applies in relation to cases where the applicant alleges, in reliance on section 44(5)(b), that the respondent consents to a dissolution order being made.
4
Rules of court must make provision for the purpose of ensuring that the respondent has been given such information as will enable him to understand—
a
the consequences to him of consenting to the making of the order, and
b
the steps which he must take to indicate his consent.
5
For the purposes of section 44(5)(d) the court may treat a period of desertion as having continued at a time when the deserting civil partner was incapable of continuing the necessary intention, if the evidence before the court is such that, had he not been so incapable, the court would have inferred that the desertion continued at that time.
6
In considering for the purposes of section 44(5) whether the period for which the civil partners have lived apart or the period for which the respondent has deserted the applicant has been continuous, no account is to be taken of—
a
any one period not exceeding 6 months, or
b
any two or more periods not exceeding 6 months in all,
during which the civil partners resumed living with each other.
7
But no period during which the civil partners have lived with each other counts as part of the period during which the civil partners have lived apart or as part of the period of desertion.
8
For the purposes of section 44(5)(b) and (c) and this section civil partners are to be treated as living apart unless they are living with each other in the same household, and references in this section to civil partners living with each other are to be read as references to their living with each other in the same household.
46Dissolution order not precluded by previous separation order etc.
1
Subsections (2) and (3) apply if any of the following orders has been made in relation to a civil partnership—
a
a separation order;
b
an order under Schedule 6 (financial relief in magistrates' courts etc.);
c
an order under section 33 of the Family Law Act 1996 (c. 27) (occupation orders);
d
an order under section 37 of the 1996 Act (orders where neither civil partner entitled to occupy the home).
2
Nothing prevents—
a
either civil partner from applying for a dissolution order, or
b
the court from making a dissolution order,
on the same facts, or substantially the same facts, as those proved in support of the making of the order referred to in subsection (1).
3
On the application for the dissolution order, the court—
a
may treat the order referred to in subsection (1) as sufficient proof of any desertion or other fact by reference to which it was made, but
b
must not make the dissolution order without receiving evidence from the applicant.
4
If—
a
the application for the dissolution order follows a separation order or any order requiring the civil partners to live apart,
b
there was a period of desertion immediately preceding the institution of the proceedings for the separation order, and
c
the civil partners 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 for the purposes of the application for the dissolution order as if it had immediately preceded the making of the application.
5
For the purposes of section 44(5)(d) the court may treat as a period during which the respondent has deserted the applicant any period during which there is in force—
a
an injunction granted by the High Court or a county court which excludes the respondent from the civil partnership home, or
b
an order under section 33 or 37 of the 1996 Act which prohibits the respondent from occupying a dwelling-house in which the applicant and the respondent have, or at any time have had, a civil partnership home.
47Refusal of dissolution in 5 year separation cases on ground of grave hardship
1
The respondent to an application for a dissolution order in which the applicant alleges 5 years' separation may oppose the making of an order on the ground that—
a
the dissolution of the civil partnership will result in grave financial or other hardship to him, and
b
it would in all the circumstances be wrong to dissolve the civil partnership.
2
Subsection (3) applies if—
a
the making of a dissolution order is opposed under this section,
b
the court finds that the applicant is entitled to rely in support of his application on the fact of 5 years' separation and makes no such finding as to any other fact mentioned in section 44(5), and
c
apart from this section, the court would make a dissolution order.
3
The court must—
a
consider all the circumstances, including the conduct of the civil partners and the interests of the civil partners and of any children or other persons concerned, and
b
if it is of the opinion that the ground mentioned in subsection (1) is made out, dismiss the application for the dissolution order.
4
“Hardship” includes the loss of the chance of acquiring any benefit which the respondent might acquire if the civil partnership were not dissolved.
48Proceedings before order made final: protection for respondent in separation cases
1
The court may, on an application made by the respondent, rescind a conditional dissolution order if—
a
it made the order on the basis of a finding that the applicant was entitled to rely on the fact of 2 years' separation coupled with the respondent’s consent to a dissolution order being made,
b
it made no such finding as to any other fact mentioned in section 44(5), and
c
it is satisfied that the applicant misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding to give his consent.
2
Subsections (3) to (5) apply if—
a
the respondent to an application for a dissolution order in which the applicant alleged—
i
2 years' separation coupled with the respondent’s consent to a dissolution order being made, or
ii
5 years' separation,
has applied to the court for consideration under subsection (3) of his financial position after the dissolution of the civil partnership, and
b
the court—
i
has made a conditional dissolution order on the basis of a finding that the applicant was entitled to rely in support of his application on the fact of 2 years' or 5 years' separation, and
ii
has made no such finding as to any other fact mentioned in section 44(5).
3
The court hearing an application by the respondent under subsection (2) must consider all the circumstances, including—
a
the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties, and
b
the financial position of the respondent as, having regard to the dissolution, it is likely to be after the death of the applicant should the applicant die first.
4
Subject to subsection (5), the court must not make the order final unless it is satisfied that—
a
the applicant should not be required to make any financial provision for the respondent, or
b
the financial provision made by the applicant for the respondent is—
i
reasonable and fair, or
ii
the best that can be made in the circumstances.
5
The court may if it thinks fit make the order final if—
a
it appears that there are circumstances making it desirable that the order should be made final without delay, and
b
it has obtained a satisfactory undertaking from the applicant that he will make such financial provision for the respondent as it may approve.