Part 12 of the Bill deal with the amendment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
Head 72: Amendment of Section 2, Interpretation
Head 73: Amendment of Part 4, Shared home
The changes to this part mirror the provisions which are made in the Family Home Protection Act 1976 to the needs of a dependent child of the family, defined in that Act so as to include a child who is not a child of the constitutional family based on marriage but who is treated by the other spouse as though he or she was a member of the family. When the provisions of the Family Home Protection Act 1976 were in large part replicated for civil partners in Part 4 of the 2010 Act, the references to the needs of dependent children of the family were not included as a result of a policy decision at the time. Section 29 of the 2010 Act refers to the requirement for the consent of a spouse to the conveyance of a family home. The court may dispense with this consent, only if it considers that the consent is unreasonably withheld having regard, among other factors, to the respective needs and resources of the civil partners. This factor is now modified so as to refer to the needs and resources of the civil partners and of any dependent children of the family. Section 30(1) allows the court to order a civil partner to stop behaviour which may make a home unsuitable for habitation by the civil partner. The proposed amendment extends this to behaviour rendering the home unsuitable for a dependent child of the family. Subsection (2) enables the court to order a civil partner who has deprived the other civil partner of his or her residence in the shared home to pay compensation. The proposed amendment allows the court also to order compensation if a dependent child is deprived of his or her home.
Section 34 allows the court to order a civil partner not to dispose of chattels without which it would be difficult to live in the shared home, and, if he or she does so (whether or not in breach of an order of the court), to order that civil partner to provide household chattels or to pay money to restore the position,. At present, only the needs of the other civil partner are taken into account; the proposed amendments would ensure that the court could also take into account the effects of any proposed or actual disposal of chattels on a dependent member of the family. The importance of these amendments is that the needs of a dependent member of the family may, depending on the circumstances, be impinged on without affecting the other civil partner. These amendments ensure that the court can take the needs of a dependent member of the family into account, and therefore that where only the child is seriously affected by a particular course of action by one of the civil partners, a case can be brought on behalf of that child to secure his or her interests.
Head 74: Amendment of Part 5, Maintenance
These are the changes necessary to bring Part 5 broadly into line with the provisions of the Family Law (Maintenance of Spouses and Children) Act 1976. The amendments to section 45 create a specific maintenance liability for each civil partner in respect of dependent children of the family – including in situations where the parent civil partner deserts the family or dies. The proposed substituted text will ensure that the other civil partner may be ordered to provide maintenance for a dependent child of the family. Section 48 of the 2010 Act allows an agreement between civil partners governing maintenance between them to be made a rule of court (and therefore to become an enforceable maintenance order). The proposed amendments would allow clauses relating to maintenance for any dependent children equally to become a rule of court and be enforceable, bringing the section into line with section 8 of the 1976 Act as amended.
Head 75: Amendment of Part 12, Dissolution of civil partnership
All of the changes proposed in this Head are intended to bring the law on dissolution of civil partnership more closely in line with the law on divorce, insofar as it relates to dependent members of the family. On divorce, particular care is taken to ensure that provision is made for dependent members oft he family. However, the definition of dependent members of the family in that context is not narrowly focussed on members of the constitutional family: it includes the child of either spouse who the other spouse, knowing he or she is not the child’s other parent, treats as a member of the family. Thus – and depending on the circumstances of the individual case – stepparents may have a responsibility to provide maintenance and accommodation for their step-children. 131 The policy intention of this Head is to ensure that children being raised by civil partners have not less than the level of protection a step-child is afforded. Elsewhere it is provided that the civil partners may jointly be legally parents of a child and it would be fundamentally inequitable that they would have a lesser responsibility than a spouse would for a step-child. We also consider that where a civil partner who is not legally recognised as a child’s parent has nonetheless fulfilled a parental role, he or she should continue to have responsibilities to the child in no less a way than a spouse would to a step-child. Subhead (1). Section 110 of the 2010 Act, Grant of decree of dissolution, provides that a dissolution of a civil partnership may be granted by the court if certain conditions are met – that the couple have been separated for 2 of the previous 3 years, and that proper provision exists or will be made for each of the civil partners. The proposed change at subhead (1) will modify the latter provision so that a civil partnership cannot be dissolved if proper provision has not also been made for any dependent children of the family. Subhead (2). Section 116 of the 2010 Act, Maintenance pending suit, allows the court to order maintenance pending suit for a civil partner – i.e. where a civil partner applies for the grant of a decree of dissolution, the court may order either of the civil partners to pay maintenance to the other until it determines that application and decides what ancillary orders to make on grant of dissolution. The proposed change at subhead (2) will enable the court to include provision for a dependent member of the family when making a maintenance order under section 116. Subhead (3). Section 117 of the 2010 Act, Periodical payments and lump sum payments, allows the court, on or after granting a decree of dissolution, to make a periodical payments order, a secured periodical payments order or a lump sum order directed to one civil partner for the maintenance of the other civil partner. The proposed changes at subhead (3) will enable the court to direct either of the civil partners to make or secure periodical payments or pay a lump sum towards the support of a dependent member of the family. As with section 13 of the Family Law (Divorce) Act 1996, provision is made in the amending text that, in addition to the civil partners, a person other than one of the civil partners may make the application and the court may direct payment to be made to that other person. This could happen if, for example, the child was being cared for by another member of the wider family. Subhead (4). Section 118 of the 2010 Act, Property adjustment orders, allows the court, on or after granting a decree of dissolution, to transfer a property from one civil partner to the other, to settle the property for the benefit of one, varying a settlement or changing the terms of a settlement. The proposed change at subhead (4) will allow such orders to be made for a dependent member of the family, as is currently the case under section 14 of the Family Law (Divorce) Act 1996. Subhead (5). Section 119 of the 2010 Act, Miscellaneous ancillary orders, allows the court to make a range of orders relating to the shared home of civil partners, including as to rights of residency in the shared home and exclusion from it, or for sale of the property and distribution of the proceeds. The proposed changes at subhead (5) refer particularly to rights of residency in the shared home, and the purpose of the amendments is firstly to allow a person make an application on behalf of a dependent member of the family if that is required, and secondly to mandate the court to take into account the position of a dependent member of the family, in deciding whether or not to make an order for a right of residence or sale of the property. This is in line 132 with the current provision on divorce, in section 15 of the Family Law (Divorce) Act 1996. Subhead (6). Section 120 of the 2010 Act, Financial compensation orders, allows the court to require a civil partner to put in place or to continue paying a life insurance policy for the benefit of the other civil partner. This is so where a civil partner dies, and the other civil partner has been wholly or partly dependent on him or her, the survivor’s financial needs will be partly met by the proceeds of the policy. The proposed changes set out in subhead (5) allow the court to require similar insurance provisions in relation to a dependent member of the family. This is in line with the current provision on divorce, in section 16 of the Family law (Divorce) Act 1996. Subheads (7)–(10). Sections 121-126 of the 2010 Act deal with pension adjustment orders. The amendments proposed in subheads (7) to (10) allow payments to be ordered in relation to dependent members of the family, in the same circumstances that payments may be ordered under the pension adjustment provisions in the Family Law (Divorce) Act 1996. Subhead (11). Section 129 of the 2010 Act, Provisions relating to certain orders, sets out factors the court must consider in deciding whether to make an order and determining its provisions. The amendments proposed in subhead (11) allow the court to consider the responsibilities of a civil partner in caring for a dependent member of the family when considering whether to make an order for that civil partner’s benefit. Factors are also provided for the court to take into account in relation to the needs of a dependent member of the family, where the court is considering making an order explicitly for the benefit of such a dependent. This is in line with the current provision on divorce, in section 20 of the Family Law (Divorce) Act 1996. Subhead (12). Section 131 of the 2010 Act, Variations etc., of certain orders, sets out what orders may be varied by the court on application to it, and particular considerations it must make where the orders to be varied concern property rights, especially in registered property. The amendments proposed in subhead (12) are consequential amendments reflecting that provision is being made for the court to make orders for the benefit of dependent members of the family, and, in relation to maintenance payments for a dependent member, the same termination of payments criteria are established as apply to other children and young adults in further education. This is in line with the current provision on divorce, in section 22 of the Family Law (Divorce) Act 1996. Subhead (13). Insertion of new section 131A of the 2010 Act, Restriction in relation to orders for the benefit of dependent members of the family. The purpose of this new section is to ensure that the behaviour of the civil partners towards each other is not a factor to be considered by the court in deciding whether or not to make an order for the benefit of a dependent member of the family. This is in line with section 23 of the Family Law (Divorce) Act 1996.