Commentary on Sections Part 2 – Civil Partnership: England and Wales.Introduction Chapter 2 – Dissolution, Nullity and Other Proceedings Section 54: Validity of civil partnership registered outside England and Wales
104.This section sets out the rules to be applied when determining whether, under the law of England and Wales, a civil partnership is void or voidable where the parties did not register as civil partners in England and Wales. If the civil partnership is void or voidable, a court in England and Wales which has jurisdiction under sections 219 to 221 may make a nullity order in respect of the civil partnership under section 37.
105.Subsection (1) ensures that a civil partnership formed in Scotland is void for the purposes of the law of England and Wales only if it would be void under the Scottish provisions in section 123. The civil partnership will also be voidable if an interim gender recognition certificate is subsequently issued to either party under the Gender Recognition Act 2004. (If the case were being considered in Scotland, this would instead be grounds for dissolution of the civil partnership under section 117(2)(b).)
106.Subsection (2) ensures that, where two people registered as civil partners in Northern Ireland, the civil partnership is void for the purposes of the law of England and Wales only if it would be void under the Northern Ireland provisions in section 173. The civil partnership will also be voidable if the circumstances fall within any paragraph of section 50(1) (since these are all circumstances which would equally render the civil partnership voidable in Northern Ireland under section 174).
107.Subsection (4) deals with the situation where the parties registered as civil partners 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 English law if the parties had registered as civil partners in that part of the United Kingdom.
108.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. Where the parties registered as civil partners of each other at a British consulate etc., the condition is that one party must be a United Kingdom national as defined in section 245. Where the parties registered as civil partners of each other 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 registered, or falls within certain other related categories as set out in section 211(2)(a).
109.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).
110.Subsection (8) sets 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 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 registration took place, 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 will also be voidable 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)) or on the grounds that an interim gender recognition certificate has been issued under the Gender Recognition Act 2004. But if either party was domiciled in England and Wales then the civil partnership will also be voidable in the other circumstances set out in section 50(1), and the same applies if either party was domiciled in Northern Ireland (since these are all circumstances which would equally render the civil partnership voidable in Northern Ireland under section 174).
111.Where a civil partnership is voidable in accordance with this section the section 51 bars to relief are applied in the usual way. However where the civil partnership is voidable by virtue of the application of foreign law, the bars to relief will only apply in so far as they are applicable in accordance with the foreign law.