293.This section sets out the orders that the court can make to bring a civil partnership to an end or to provide for the separation of the parties. These are as follows:
A dissolution order, which when made final will bring a civil partnership to an end.
A nullity order, which when made final will annul a civil partnership which is either void or voidable.
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.
A separation order, which provides for the separation of the civil partners, but will not allow either civil partner to marry or to form another civil partnership.
294.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 section 162.
295.Subsection (3) provides that a nullity order made in respect of a civil partnership which is voidable annuls the civil partnership only as respects any time after the order is made. The civil partnership is to be treated as if it had existed up to that time.
296.By subsection (4) “the court” is ascribed the meaning given in section 188, namely the High Court or a county court designated by the Lord Chancellor as a civil partnership proceedings county court. Subsection (5) makes it clear that the powers of the court under this section are subject to the court having jurisdiction under sections 219 and sections 228 to 232.
297.This section 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. Subsection (2) 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 civil partnership).
298.This section provides for the intervention of the Crown Solicitor in proceedings where an application has been made for a dissolution, nullity or presumption of death order. The court may involve the Crown Solicitor where it considers it necessary or expedient to have any question in relation to the case fully argued by counsel appointed by the Crown Solicitor, under the directions of the Attorney General. Any person may also give information to the Crown Solicitor on relevant issues at any time before the order has been made final and the Crown Solicitor can take such steps as the Attorney General considers necessary or expedient. The section also gives the court discretion to order the payment of costs by or to the Crown Solicitor.
299.This section 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 section applies where the Crown Solicitor, 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 section where the civil partner who applied for the conditional order has not taken steps to have this made 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 section.
300.Where this section 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 section 161(2) has not yet expired, but is subject to the restrictions imposed in section 172(4) (relating to financial provision in separation cases) and section 186 (restrictions on the making of orders affecting children).
301.This section states that an application for dissolution of a civil partnership may not be made until at least 2 years after the date of formation of the civil partnership. However, matters which occurred within this 2 year period may be used in support of the application.
302.This section 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 (3) provides that if, during any such adjournment, the parties resume living in the same household, no account will be taken of this fact for the purposes of the proceedings.
303.Subsection (4) provides that this power to adjourn is additional to any other power of adjournment.
304.This section provides that 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 give directions.
305.This section establishes the ground on which (provided the 2 year period set out in section 165 has elapsed) an application for the dissolution of a civil partnership may be made, and the four facts which can prove the ground for dissolution.
306.Subsection (1) sets out the sole ground on which an application for dissolution may be made, namely that the civil partnership has broken down irretrievably.
307.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):
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;
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 as “2 years’ separation”) and that their civil partner consents to a dissolution order being made;
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”);
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.
308.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. The court may not hold that the civil partnership has broken down irretrievably unless the applicant satisfies the court of one or more of the facts set out in subsection (5). 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.
309.Subsection (6) provides that the court must consider the oral testimony of the applicant before making a dissolution order, unless there are special reasons to dispense with such testimony.
310.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 relied on in support of this allegation, the civil partners have continued to cohabit for a period or periods of time not exceeding 6 months in total, the court must disregard this time spent living together when determining whether the applicant cannot reasonably be expected to live with their civil partner.
311.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, rules of court must make provision to ensure that he or she is given information which will enable him to understand the consequences of consenting to the order and the steps which must be taken to indicate consent.
312.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.
313.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).
314.Subsection (8) provides that civil partners are to be treated as living apart unless they are living with each other in the same household.
315.This section provides that where a separation order, an order for financial relief in a court of summary jurisdiction or an order under Article 11 or 15 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 has been made, this does not prevent either civil partner from applying to the court for a dissolution order on the basis of the same facts that were relied upon when granting the previous order.
316.Under subsection (3) the court may treat the previous order as sufficient proof of the facts by reference to which it was made, but must not make the dissolution order without receiving evidence from the applicant.
317.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.
318.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 Article 11 or 15 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 was in force prohibiting the civil partner from occupying a dwelling-house used (then or previously) as the civil partnership home.
319.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 all 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 the civil partners and of any children or other persons concerned, and if the court is satisfied that there would be grave 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.
320.Subsection (1) provides that the court can rescind a dissolution order which has not been made final, where the application was on the basis of 2 years’ separation coupled with the other civil partner’s consent, if the applicant misled their civil partner over any matter which was taken into account when giving that consent.
321.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 position after dissolution of the civil partnership. The court must consider all the relevant circumstances including the age, health, conduct, earning capacity, 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 has, by order, declared that 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 fair, or is the best that can be made in the circumstances or that there are circumstances making it desirable to make the order final without delay. Subsection (8) provides that if the court will not make an order under subsection (4), it must, on the applicant’s application make an order declaring that it is not satisfied as mentioned in that subsection.
322.Under subsection (5) the court must not declare it is satisfied that the order should be made final without delay unless it has obtained an undertaking from the applicant to bring the question of financial provision for the respondent before the court within a specified time.
323.Subsections (6) and (7) provide that where an application has been made for a dissolution order on the basis of 2 years’ separation or 5 years’ separation, and the court makes a final order without making an order under subsection (4), the final order is voidable at the instance of the respondent or the court, but no person may challenge the validity of the final order on the grounds that subsections (4) and (5) were not satisfied.
324.This section sets out the grounds on which a civil partnership will be void (and therefore invalid) under the law of Northern Ireland, where the parties registered as civil partners of each other in Northern Ireland. (The grounds on which the law of Northern Ireland will hold other civil partnerships to be void are set out in section 177.)
325.Paragraph (a) provides that the civil partnership will be void if, at the time when the two people registered as civil partners in Northern Ireland, they were not eligible to register as civil partners of each other under the requirements set out in section 138.
326.Paragraph (b) lists the breaches of 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 failure to give the required notice of proposed civil partnership, the civil partnership schedule not being duly issued, the place of registration not being the place specified in the civil partnership schedule, or a registrar not being present at the registration.
327.This section 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 Northern Ireland. (The grounds on which the law of Northern Ireland will hold other civil partnerships to be voidable are set out in section 177.) The grounds are as follows:
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.
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 civil partnership.
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 Act 2004). This is subject to section 175(6) which ensures that the court may not make a nullity order unless satisfied that the applicant did not know of the pregnancy at the time of the formation of the civil partnership.
An interim gender recognition certificate under the Gender Recognition Act 2004 has been issued to either civil partner after the time of the formation of the civil partnership. An application on this ground is subject to the 6 month time limit in section 175(5) (see below).
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 Act 2004. This is subject to section 175(6) which ensures that the court may not make a nullity order unless it is satisfied that the applicant did not know at the time of the formation of the civil partnership that his or her partner had changed gender.
328.Subsection (1) provides that the court must not make a nullity order on the grounds that a civil partnership is voidable if the respondent satisfies the court that the applicant 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.
329.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 at some time during the 3-year period.
330.Where the application is made on the ground that an interim gender recognition certificate has been issued under the Gender Recognition Act 2004 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.
331.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 court is satisfied that the applicant did not know of the relevant facts at the time of formation of the civil partnership.
332.This section provides that that where two people have registered as civil partners in Northern Ireland it is not necessary for them to provide evidence that any consent required under section 145 (consent by parents etc. where one of the intended civil partners is under 18) was actually given, or that the person who officiated at the signing of the civil partnership schedule was a properly appointed registrar. No evidence may be given in any nullity proceedings to disprove either of these facts.
333.This section sets out the rules to be applied when determining whether, under the law of Northern Ireland, a civil partnership is void or voidable where the parties did not register as civil partners in Northern Ireland. If the civil partnership is void or voidable, a court in Northern Ireland which has jurisdiction under sections 219 or 229 may make a nullity order in respect of the civil partnership under section 161.
334.Subsection (1) ensures that a civil partnership which was formed in England and Wales is void for the purposes of the law of Northern Ireland if it would be void under the provisions applicable in England and Wales under section 49. The civil partnership will also be voidable if it would be voidable under the provisions applicable in Northern Ireland under section 174(1) (since these are all circumstances which would equally render the civil partnership voidable in England and Wales under section 50).
335.Subsection (2) ensures that a civil partnership which was formed in Scotland is void for the purposes of the law of Northern Ireland if it would be void under the Scottish provisions in section 123. The civil partnership will also be voidable if an interim gender recognition certificate is subsequently issued to either party under the Gender Recognition Act 2004.
336.Subsection (4) deals with the situation where the parties registered as civil partners outside the United Kingdom under an Order in Council made under section 210 or 211. Orders in Council made under those sections 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 the law of Northern Ireland if the civil partnership had actually been formed in that part of the United Kingdom.
337.In addition the civil partnership will be void if the condition in section 210(2)(a) or 211(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 section 245. 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 formed, or falls within certain other related categories as set out in section 211(2)(a).
338.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).
339.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 sections 212 to 214, or if one of the requirements for the overseas relationship to be treated as a civil partnership under sections 215 to 218 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 section 215(1)). It will also be voidable if that is the effect of the law of the country where the registration took place (see the definition of “the relevant law” in subsection (10)) or on the grounds that an interim gender recognition certificate has been issued under the Gender Recognition Act 2004. But if either party was domiciled in Northern Ireland or England and Wales then the civil partnership will also be voidable in the other circumstances set out in section 174(1).
340.Where a civil partnership is voidable in accordance with this section the section 175 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 in accordance with the foreign law.
341.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.
342.This section allows for 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 186 relating to children). However it is irrelevant whether the civil partnership has broken down irretrievably.
343.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.
344.This section provides for people to apply to the 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 Northern Ireland is or is not entitled to recognition in Northern Ireland.
345.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.
346.This section provides that where an application is made under section 181 and the proposition put forward is proved to the satisfaction of the court, the court must make the order requested unless it would be manifestly contrary to public policy for it 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.
347.This section provides that, in any case where an application is made for a declaration under section 181, the court may direct that the appropriate papers should be sent to the Attorney General. The Attorney General may in any event intervene in proceedings for a declaration under section 181 as he thinks necessary, 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.
348.This section provides for family proceedings rules (defined in subsection (8)) to determine the form of an application for a declaration under section 181, 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, and must make provision for an appeal to the Court of Appeal from any declaration made by a county court under section 181 or the dismissal of an application under that section.
349.Subsection (3) provides that no proceedings under section 181 will affect any final order or judgment already given. Subsection (4) provides that the court may direct that the whole or part of any application under section 181 may be heard in private (and by subsection (5) any application for such a direction must itself be heard in private unless the court directs otherwise).
350.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.
351.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 (Northern Ireland) Order 1995 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.
352.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 also provide for the court to dismiss parties whom it has joined to the proceedings, and as to the persons who are to be party 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.
353.Subsection (1) defines “the court” for the purposes of Chapter 2 as being the High Court or a county court designated by the Lord Chancellor as a civil partnership proceedings county court and subsection (5) defines “civil partnership proceedings county court” as any such county court.
354.Subsection (6) provides that rules of court may be made to ensure that a civil partnership cause pending in one civil partnership proceedings county court may be heard and determined either partly in that court and partly in another, or in another such court.
355.Subsection (7) makes provision for civil partnership county courts to have jurisdiction even where the amount claimed would not normally enable a county court to exercise jurisdiction.
356.This section provides that rules of court may be made to allow appeals to the Court of Appeal of decisions or dismissals of applications made by a judge in a civil partnership proceedings county court.
357.Subsection (3) provides that a person may appeal any order or dismissal of an application made by a county court with jurisdiction under paragraphs 57, 58 or 66 of Schedule 15 (financial relief in the High Court or county court: Northern Ireland) as if the order or dismissal had been made in exercise of the jurisdiction conferred by Part 3 of the County Courts (Northern Ireland) Order 1980.
358.This section provides that rules of court may be made to facilitate the transfer of any civil partnership cause from a civil partnership proceedings county court to the High Court or alternatively from the High Court back to the civil partnership proceedings county court.
359.Subsection (3) provides a definition of a “civil partnership cause” for the purposes of this section.
360.Subsection (4) provides that rules of court may provide for the transfer or retransfer of a civil partnership cause from either a civil partnership proceedings county court to the High Court or, from the High Court to a civil partnership proceedings county court.
361.Subsection (5) provides that the power conferred by subsections (2) and (4) includes the power to provide for the removal of proceedings at the direction of the High Court. Nothing in this subsection affects the High Court’s powers of removal and remittal.