228.This section provides that an action for the dissolution of a civil partnership can be brought in the Court of Session or in the sheriff court. It sets out the terms under which a court may grant a decree, and when the irretrievable breakdown of a civil partnership is taken to be established.
229.This section provides that if it seems to the court that there is a reasonable prospect of a reconciliation between the civil partners, the court must continue the action for dissolution for as long as it thinks is proper to enable attempts to be made to effect a reconciliation. Subsection (2) provides that where a couple still wish to dissolve their civil partnership after a period of living together again (during the court action), that period will not be taken into account for the purposes of the action.
230.Subsection (1) provides that the irretrievable breakdown of a civil partnership on grounds of desertion for a continuous two year period will not be taken to be established if, at the end of that two year period, the parties start living together again and do so at any time after the end of the three months which begin from the date the parties resumed living together. Subsection (2) provides that this is subject to section 118(2).
231.Subsection (3) provides that, when considering whether any period of desertion or non-cohabitation provided for in section 117(3)(b) to (d) is continuous, the court should not take account of any period or periods of time, not exceeding 6 months in total, in which the civil partners resumed cohabiting with one another. However (as a separate issue from whether the period is to be regarded as “continuous”) no such period of cohabitation can count as part of the period of non-cohabitation for the purposes of section 117(3). So for example, non-cohabitation 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 non-cohabitation adds up to 2 years (excluding those 2 months).
232.This section provides that an action for the separation of civil partners may be brought in the Court of Session or in the sheriff court. The court may grant such a decree if satisfied that any of the facts listed in section 117(3)(a) to (d) are established.
233.If a couple that has a decree of separation subsequently decide to dissolve their civil partnership, this section provides that they may apply to the court giving the same evidence upon which a decree of separation was based. The court can treat a decree of separation as proof of the facts under which the decree was granted. However, this does not entitle a court to grant a decree of dissolution of a civil partnership without receiving evidence from the civil partner seeking the dissolution.
234.This section requires the Registrar General for Scotland to maintain a register of decrees of dissolution of civil partnership (Register of Dissolutions of Civil Partnership). The Registrar General is also required to make and keep an alphabetical index of entries to this register. The form of the register is to be prescribed. On payment of the prescribed fee to the Registrar General, the index to the register may be searched and an extract of any entry provided. An extract of an entry in the register is sufficient evidence of the decree of dissolution to which it relates. The Registrar General may also delete, amend or substitute an entry in the register. “Prescribed” is defined in section 126.
235.This section sets out that if a couple register as civil partners of each other in Scotland despite not meeting the eligibility criteria detail in section 86, or in circumstances where either of them did not validly consent to its formation, the civil partnership will be void, meaning that it will be treated as never having taken place. Either of the couple or another interested person may bring an action in the Court of Session to have the civil partnership declared void.
236.This section sets out the rules to be applied when determining whether, under the law of Scotland, a civil partnership which was not formed in Scotland is void or voidable. If the civil partnership is void or voidable, a court in Scotland which has jurisdiction under section 219 or 225 may make a declarator of nullity in respect of the civil partnership under the inherent declaratory power held by the Court of Session.
237.Subsection (1) ensures that a civil partnership which was formed in England and Wales is void or voidable for the purposes of the law of Scotland if that would be the effect of the English provisions in sections 49 or 50. (The only exception is where an interim gender recognition certificate under the Gender Recognition Act 2004 has been issued to either civil partner after the formation of the civil partnership, as mentioned in section 50(1)(d). In Scotland this will instead be a ground for dissolution of the civil partnership under section 117(2)(b).)
238.Subsection (2) ensures that a civil partnership which was formed in Northern Ireland is void or voidable for the purposes of the law of Scotland if that would be the effect of the Northern Ireland provisions in sections 173 or 174. (Again, the only exception is where an interim gender recognition certificate under the Gender Recognition Act 2004 has been issued to either civil partner after the formation of the civil partnership, as mentioned in section 174(1)(d). In Scotland this will instead be a ground for dissolution of the civil partnership under section 117(2)(b).)
239.Subsection (4) deals with the formation of civil partnerships 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 Scottish law if the civil partnership had actually been formed in that part of the United Kingdom.
240.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. For a partnership formed at a British consulate etc., the condition is that one party must be a United Kingdom national as defined in section 245. For a partnership formed 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).
241.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).
242.Subsections (7) and (8) set 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 subsection (7) sets out that 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 overseas relationship was registered, 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 is also voidable in terms of subsection (8) 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)). But if either party was domiciled in England and Wales or Northern Ireland, then the civil partnership will also be voidable in the circumstances set out in section 50(1) or 174(1) (except for the grant of an interim gender recognition certificate, which in Scotland will instead be a ground for dissolution of the civil partnership under section 117(2)(b)).
243.This section introduces Schedule 11, which relates to applications for financial provision in Scotland after a civil partnership has been dissolved or annulled, in a country or territory outside the British Islands. “British Islands” is defined in the Interpretation Act 1978 (c. 30) as comprising the United Kingdom, the Channel Islands and the Isle of Man.