Commentary on Sections Part 5 – Civil partnerships formed or dissolved abroad etc.Introduction Chapter 2 – Overseas relationships treated as civil partnerships Section 216: The same-sex requirement
423.Subsection (1) provides that both members of the couple must be of the same sex, at the critical time, if the overseas relationship is to be treated as a civil partnership in the UK. “The critical time” is defined in subsection (5) to refer back to section 215(2) or (3) (i.e. depending on whether the relationship was entered into before or after the commencement of section 215).
424.Subsections (2) to (4) provide an exception where the couple was regarded as a same-sex couple under the relevant law because one of the parties was regarded as having changed gender under that law. In this situation the relationship will be treated as a civil partnership once the party who had changed gender under the relevant law has also acquired a full gender recognition certificate under the Gender Recognition Act 2004. But the parties will only be regarded as having formed a civil partnership if no marriage or civil partnership has been entered into in the interim. These provisions are analogous to provisions contained in the Gender Recognition Act 2004, in relation to overseas marriages.
425.Subsection (6) adds the proviso that this section is subject to any enforceable Community right. This means that, where a national of another country within the European Union or European Economic Area has been granted legal recognition of their gender change under the law of that country, and has an enforceable right under European Community law to recognition of their acquired gender in the UK, if they subsequently form a same-sex overseas relationship that relationship can be treated as a civil partnership in the UK without the need for them first to obtain a full gender recognition certificate under the Gender Recognition Act 2004. Again this is analogous to provision contained in the Gender Recognition Act in relation to overseas marriages.