Commentary on Sections Part 3 - Civil Partnerships: Scotland.Introduction Chapter 5 – Dissolution, Separation and Nullity Section 124: Validity of civil partnerships registered outside Scotland
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)).