Commentary on Sections Part 4 – Civil Partnership: Northern Ireland.Introduction Chapter 2 – Dissolution, Nullity and Other Proceedings Section 177: Validity of civil partnerships registered outside Northern Ireland
333.This section sets out the rules to be applied when determining whether, under the law of Northern Ireland, a civil partnership is void or voidable where the parties did not register as civil partners in Northern Ireland. If the civil partnership is void or voidable, a court in Northern Ireland which has jurisdiction under sections 219 or 229 may make a nullity order in respect of the civil partnership under section 161.
334.Subsection (1) ensures that a civil partnership which was formed in England and Wales is void for the purposes of the law of Northern Ireland if it would be void under the provisions applicable in England and Wales under section 49. The civil partnership will also be voidable if it would be voidable under the provisions applicable in Northern Ireland under section 174(1) (since these are all circumstances which would equally render the civil partnership voidable in England and Wales under section 50).
335.Subsection (2) ensures that a civil partnership which was formed in Scotland is void for the purposes of the law of Northern Ireland 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.
336.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 the law of Northern Ireland if the civil partnership had actually been formed in that part of the United Kingdom.
337.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 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 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).
338.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).
339.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 Northern Ireland or England and Wales then the civil partnership will also be voidable in the other circumstances set out in section 174(1).
340.Where a civil partnership is voidable in accordance with this section the section 175 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.