Commentary on Sections Part 2 – Civil Partnership: England and Wales.Introduction Chapter 2 – Dissolution, Nullity and Other Proceedings Section 46: Dissolution order not precluded by previous separation order etc.
86.This section provides that where a separation order, an order for financial relief in the magistrates’ court or an order under sections 33 or 37 of the Family Law Act 1996 (c. 27) 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. 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 that the dissolution order without receiving evidence from the applicant.
87.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.
88.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 sections 33 or 37 of the Family Law Act 1996 (c. 27) was in force prohibiting the civil partner from occupying a dwelling-house used (then or previously) as the civil partnership home.