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The noble Baroness said: This is a small point and I shall not hold the Committee up for long with a long explanation as to why we have tabled the amendment. Clause 1 is an introduction to the whole idea of civil partnerships. It is a summaryan overview. Subsection (2) states that all civil partnerships, no matter where they are formedEngland, Wales or Scotlandcan be void under the Act in the ways stated. Our amendment would leave out subsection (2).
We do recognise the ways in which a civil partnership can be declared void, but we have tabled this amendment as a drafting point. It seems to me that in a generally well-drafted and articulate Bill, subsection (2) of Clause 1 is somewhat out of place. It does not really even seem to make sense until you have read it several timesand I say that as a founder of the Plain English Campaign. Can the Minister confirm that this is the drafting which will appear in the Act?
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Or might she take the amendment, as it is intended, and ask the draftsmen very kindly to have another look at subsection (2) with a view to making it more understandable for all of those who will, in years to come, be using the Act? I beg to move.
Baroness Scotland of Asthal: I apologise if the noble Baroness found the provision difficult. It was hoped that the meaning of subsection (2) was relatively clear, but I accept immediately that clarity to a lawyer seems always to be so opaque to those who are not burdened with constant interpretationor so it has come to appear to me since I joined this House.
The amendment would remove from the Bill the idea that a civil partnership can be void. I do not believe that that is what the noble Baroness intendsshe is worried only about the wording. It was hoped that in the way in which the subsection is constructedI shall certainly go back to the draftsmenit would be crystal clear that we are introducing three ways in which you can get out of a civil partnership. They are on death, or on dissolution or on annulment.
If the registration is void for a specific reasonfor example, if two people enter into a registration of a partnership and at the time of that entry one of them is still married, or within the bounds of consanguinity, and should not have entered into the partnershipthat would not be a voidable partnership. It would be void ab initioit would have been void right from the beginning. It would be null. If we look at the basis on which we are setting out the procedure to get out of these registration partnerships, it would usually take two years to bring it to an end, whereas if it were void from the beginning the partners would be entitled to want to set it aside.
Therefore, the wording is hoped to be short and succinct in paragraph 2, because subsection (1) is subject to the provisions of this Bill, under or by virtue of which a civil partnership is void. Subsequently, we go on to deal with the provisions that would make a partnership void. Paragraph 3if your Lordships look at itsets out the same basis; death, dissolution, or annulment. In the later sections we clarify each of those.
If the intent of the noble Baroness is not to remove the ability to invalidate a registration and express it as being void, we can look again. I fear that I will be told that the drafting is as precise and as succinct as we can make it, and that if you look at the rest of the Bill, it becomes explicable. I do not know whether that helps the noble Baroness. I am happy to explain as we go along what will make it void, voidable, or subject to dissolution, and the consequences that flow from that. I regret to tell your Lordships that for a family lawyer, I am afraid that these phrases would be all too familiar.
Baroness Wilcox: I am grateful to the noble Baroness. For the lawyers, it is all perfectly clear. However, if we draft everything for lawyers, only they will ever have access to anything. I am not sure that that is right. The National Consumer Council will "tut, tut, tut". I have no choice at this stage but to
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withdraw the amendment. I am grateful to the Minister for having said that she will go back to her team and ask them not to exclude the man on the Clapham omnibus.
I remember when I was chairman of the National Consumer Council, and we did some work on access to justice. Out of that flowed a lot of awfully good work. Now that the Minister has explained it to meabsolutely wonderful. However, if I had to pay her to explain it to me, it would have cost me a great deal of money. For the moment, I will withdraw the amendment, but I am grateful that she will go back to check whether it can be made a bit clearer. I beg leave to withdraw the amendment.
The noble Baroness said: I rise to speak to Amendment No. 9, and with the leave of the Committee, I shall speak also to Amendments Nos. 47 and 48. We touched on the first amendment and the Minister and the noble Lord, Lord Tebbit, had a discussion. The Minister did go some way to explaining the position. If noble Lords would be patient, I would prefer to read out exactly what I have written down. I am not sure that I understood what she was saying, or how much it answered my question.
It is a probing group of amendments. We are still in the introductory stages of the Bill, and I wanted to raise the point about the ending of a civil partnership early on, to be clear in my own mind what exactly this entails.
My amendment would leave out one of the processes of bringing a civil partnership to an end; namely, annulment. It is annulment with which our amendments are concerned. Amendment No. 47 would leave out the paragraph in Clause 36 which allows the court to make an order which annuls a civil partnership. Amendment No. 48 would leave out the subsection in that clause which deals with the time when a civil partnership will cease to exist due to nullity.
Clause 48 deals with the grounds on which a civil partnership will be held to be void. Annulment for civil partnerships seems a rather puzzling idea to me. For example, it is a commonly held belief that a marriage will be annulled when it has not been consummated. I cannot believe that that is to be the case for civil partnerships. It does not seem likely and, from reading the Bill, it would seem that some procedural irregularity would need to occur in order for it to happen. However, I felt that we needed to make the point that it seemed unlikely that such an irregularity would occur, given the very detailed process through which two prospective civil partners have to go before
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achieving civil partnership status. Is it really necessary to have the two separate categories of dissolution and annulment? I beg to move.
Baroness Scotland of Asthal: I certainly now understand why the noble Baroness tabled these probing amendments. I say to her straightaway that it is not only lack of consummation that can bring a nullity order; there can be all sorts of additional examples, such as a person marrying under the age of 16 or masquerading as a different gender. There are all sorts of issues that would mean that, right from the beginning, the relationshipwhether a marriage or a partnershipcould not have been valid in law. That is why the provisions on nullity remain.
Amendment No. 9 would remove the statement that a civil partnership may be annulled. Amendment No. 47 to Clause 36 would remove the power of the court to make a nullity order, and Amendment No. 48 to Clause 36 would remove the description of the effect of a nullity order in cases where a civil partnership is voidable. It is quite important to retain those provisions because of the Bill's complexity. We thought it necessary to emphasise how serious the relationships were; they cannot be entered into lightly and they cannot be dissolved or removed lightly.
Clause 36(3) provides that a nullity order made in respect of a civil partnership which is voidable annuls the civil partnership only for any period after the order is made final. The civil partnership is to be treated as though it had existed up to that date. Clause 48 sets out the grounds on which a civil partnership would be void, and therefore invalid, under the law of England and Wales, and Clause 49 sets out the grounds on which a civil partnership would be voidable.
I should make clear the difference between "void" and "voidability". Something void never had any value from the beginningit could not have happened. Something voidable can be declared not to be void at the instance of one person. Those concepts have sat in our law for a very long time. One is void from the beginningwhat we would call void ab initioand was never valid; the other can be challenged and found not to be valid and therefore voidable.
The provisions provide that a civil partnership would be void where the fundamental eligibility requirements were not met. The examples that I have given apply. Other examples would be where the couple were not of the same sex, where one of them already had a civil partner, or where a serious procedural breach had occurred, such as where the due notice of proposed civil partnership had not been given. The problems would be where some fundamental breach had been made.
The civil partnership will also be void if certain formal requirements are not complied with. These are the failure to provide the required notice, the civil partnership document not being duly issued or having expired, the place of registration not being the place specified in the notice and the civil partnership document, or a civil partnership registrar not being present at the registration.
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In addition, the civil partnership of a person under the age of 18 will be void if the civil partnership document was void by reason of its issue having been forbidden by a person whose consent is required for the child to form a civil partnership. So, if your 16 year-old asks, "Can I enter into this partnership?" and you say "No", and then by some strategy they manage to get themselves before the registrar and enter into it, it is void and will not be recognised.
It is important that civil partnerships should be void where there are severe irregularities. An example of that is where one of the civil partners is already registered as a civil partner of another person or is already married. In such a case, it would be wrong to require the other civil partner to apply for an order for dissolution as the civil partnership was never validly in existence. There is a clear difference between a civil partnership that was in existence and subsequently broke down, for which dissolution is appropriate, and a civil partnership that never legally existed.
Removing the provisions for voiding a civil partnership would have very serious repercussions for the whole Bill. It would require a civil partnership, formed in breach of the key eligibility criteria and registration requirements, to be treated as if it were valid. We do not think that that can possibly be right.
Civil partnership is a serious and significant legal relationship. There are some conditions on eligibility and procedure that the state regards as essential to prevent abuse. Where one of those is breached the consequence should be that the civil partnership is void.
I hope that I have said enough to explain why a nullity order provides protection for civil partners and matches the protection available to married people where there are major legal irregularities. To remove the provisions for nullity would significantly and unnecessarily reduce the protection available to civil partners introducing a difference between them and spouses for which we can see no real justification. With that explanation, I hope that the noble Baroness will be enlightened a little.
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