Clause 115 - Dissolution

Civil Partnership Bill [Lords] – in a Public Bill Committee at 10:00 am on 26th October 2004.

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Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs) 10:00 am, 26th October 2004

I beg to move amendment No. 236, in clause 115, page 59, line 37, leave out 'dissolution' and insert 'cessation'.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss the following amendments: No. 237, in clause 115, page 60, line 3, leave out paragraphs (a) to (d) and insert—

'(a) the defender consents to the granting of decree of dissolution of the civil partnership,

(b) the defender has committed an act of sexual infidelity, or

(c) there has been no cohabitation between the civil partners at any time during a continuous period of six months immediately preceding the bringing of the action.'.

No. 238, in clause 115, page 60, line 22, leave out subsection (4).

No. 239, in clause 115, page 60, line 36, leave out subsection (6).

No. 240, in clause 115, page 60, line 40, leave out subsection (7).

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

These amendments mirror amendments that were tabled to an earlier part of the Bill but could not be discussed because of the guillotine. Their purpose is to ensure that the Bill reflects more properly the concerns expressed by, among others, the noble prelate, the Bishop of Oxford, who said:

''it is a concern to some in the Churches that the legislation enshrined in the Bill parallels that for marriage at almost every point. There is an ambiguity here that some find worrying''.—[Official Report, House of Lords, 22 April 2004; Vol. 660, c. 399.]

I find it worrying, as do a lot of people whom I have spoken to. They want to ensure that the Bill recognises that cohabitation and partnership short of marriage involve a looser bond than marriage, which is the purpose of the amendments. If they were agreed to, they would effectively ensure that civil partnerships had a different nature to marriage and were described in different language.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

The hon. Gentleman was trying to pray in aid the comments of the Bishop of Oxford. He will, I am sure, have read all the Bishop's speech, in which he made it clear that while many in the Church expressed such feelings, he personally did not, which is why he chose that form of words very carefully.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

He said those words, nevertheless. He recognised—perhaps the hon. Gentleman does not—that there are a large number of people who find the matter worrying.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

One way of overcoming such concerns is to pass the amendment and ensure that the Bill creates something more akin to the civil solidarity pact available in France, as opposed to same-sex marriage, which is in essence what the Government are trying to impose on the country.

The hon. Member for Orkney and Shetland got rather wound up when I referred to Lord Lester of Herne Hill, who is a Liberal Democrat, but much of the language in the amendments is taken directly from Lord Lester's own Bill on civil partnerships—the plural form was used—in the House of Lords, and that language is also analogous to the law in France. The amendments anticipate that chapter 1 of the Bill will still refer exclusively to same-sex partnerships—the current reality. They would remove the need to show that a relationship had broken down irretrievably and introduce the issue of cessation instead.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

On the point about cessation instead of dissolution, I have no doubt that the hon. Gentleman will favour us with an explanation of what he sees as the distinction. Will he explain why he seeks to change ''dissolution'' to ''cessation'' in amendment No. 236, when amendment No. 237 states:

''the defender consents to the granting of decree of dissolution''?

Why did he not favour us with an amendment making further reference to dissolution?

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

If the hon. Gentleman is saying that I had not tabled enough amendments and that I should have tabled some more consequential amendments, I plead guilty. However, on the substantive concern he has expressed, the issue of cessation was referred to by Lord Lester in his Bill, and I presume that he used that term—indeed, this is why I have drafted my amendment as I have—because it makes it clear that the partnership that we are discussing is different from marriage. The Government say that that is the case, but we keep saying that if it looks like marriage and has all the trappings of marriage, it is marriage, even though they deny it.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

The hon. Gentleman makes the fair point that Lord Lester of Herne Hill introduced a different Bill, but why I do not quite understand he keeps referring to that Bill during consideration of the Bill that is before us, which he seems to recognise is different. I am not suggesting that he should table more amendments, but asking him to explain the inconsistency in the amendments that he has tabled.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

The hon. Gentleman will be able to make his own speech, perhaps accepting some of my amendments, but saying that some further amendments are required to iron out inconsistencies. When he has developed his arguments in that respect and I have listened to the logic of his point of view, I am sure that I will be able to wind up this debate, give my verdict and see whether, in the light of his points, it is worth pushing the amendment to a vote or whether it should be withdrawn. That is the essence of an open debate.

I do not need to speak at great length about the amendments. Essentially, I want to make it easier for people to get out of same-sex partnership

arrangements. The fact that people can do so easily in France is a good thing. I would like it to be equally easy for people to do so in this country and in Scotland, to which these amendments relate. I hope that, even at this late stage, people will be able to accept that if there is to be a difference between civil partnerships and marriage, it would be as well to make that apparent in the Bill to a much greater extent, instead of trying to mirror marriage at every stage, including with regard to the complicated arrangements that relate to the breakdown of marriage.

Photo of John Bercow John Bercow Conservative, Buckingham

My hon. Friend has just lamented what he regards as the unnecessary complexity of the existing provisions. I put it to him that the way in which his amendments introduce a new concept of sexual infidelity causes him to be guilty of the very offence of excessive complexity of which he is effectively accusing the Government. Does he not accept that there is already provision for unreasonable behaviour to be considered a ground for dissolution—or, God forbid, if he got his way with his amendment, for cessation—and that therefore there is no good reason to introduce the concept of sexual infidelity?

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

I do not know why my hon. Friend is so sensitive to this issue of sexual infidelity as a ground for establishing irretrievable breakdown. That is what we are talking about: the grounds on which irretrievable breakdown can be established. At the moment, there is no reference to being able to establish irretrievable breakdown on the basis of an act of sexual infidelity. That is pretty fundamental stuff. How can people have a firm civil partnership or relationship if one of them is indulging in sexual infidelity? If that is connived at or agreed to by the other party, that is fine, but if it is not consented to or connived at by the other party, the party who is the victim of that sexual infidelity should have an absolute right to be able to say that, on those grounds, the relationship has broken down.

Photo of Ann McKechin Ann McKechin Labour, Glasgow Maryhill

Is the hon. Gentleman aware that in Scots law the definition of unreasonable behaviour would include sexual acts that are not covered under the definition of adultery? That has always been the case in family law in Scotland and it is covered specifically in subsection (3)(a) of the clause.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs) 10:15 am, 26th October 2004

It is some years since I studied law in Scotland, so I accept the information that the hon. Lady has provided. Perhaps that will be the explanation from the Minister as to why the amendment is thought inappropriate. However, in English law, adultery is still a specific ground and is specified as evidence of a breakdown of a marriage. If the provision is already implicit in the law in Scotland, I still think that there is no harm to be done by making it explicit in the Bill, which would be the effect of amendment No. 237. The provisions would then refer to the defender committing an act of sexual infidelity.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

The thrust of the hon. Gentleman's contribution in Committee has been to try to make the

Bill less like a gay marriage Bill. Does he not realise that introducing a concept of gay adultery makes the provisions of the Bill more like gay marriage?

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

In trying to amend the Bill and to put forward arguments, the challenge has been that I have encountered resistance from the Government and from the majority on the Committee to any idea that we can make the Bill deal with civil partnerships outside marriage at a lower level of commitment. I am faced—against my will—with the fact that the Government and the hon. Gentleman are insistent on making the Bill as much like a same-sex marriage Bill as possible.

I am trying to say that, if the Bill is going to be like that, I think that it is unfair and unjust that people should be tied up in long-standing relationships with a commitment to each other that they will not be able to break for up to five years without the consent of the other party, even if that other party is committing acts of sexual infidelity. It is important, therefore, that the party who is the victim of that sexual infidelity should be able to use, as a ground for dissolution or cessation of the partnership, the fact that the person with whom he or she is living has been guilty of an act of sexual infidelity.

Photo of John Bercow John Bercow Conservative, Buckingham

I have always regarded my hon. Friend as something of a logician in this House. I am genuinely troubled by what he just said. Does he not see that there is a curious neurosis about his attitude to the various amendments to the Bill? Does he not accept the logic of what the hon. Member for Rhondda (Chris Bryant) just said—that, on the one hand, my hon. Friend is arguing for the use of the term ''cessation'' rather than ''dissolution'' to underline the essential difference between the institution of civil partnership and that of marriage and, on the other hand, he is arguing for a provision that makes the arrangement much more like marriage? It seems that my hon. Friend is guilty of a degree of turgidisation that is unworthy of him.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

I do not know whether you have read the Official Report of the last sitting, Mr. Cook. My hon. Friend sought to provoke me to recant for having nominated him to be a member of the Conservative party candidates list. I do not recant from that nomination because I think that the House would be a much poorer place without the presence of my hon. Friend.

However, I thought that my hon. Friend understood the procedures of Parliament. Although we cannot express the amendments as being ''in the alternative'', that is essentially the way in which amendments Nos. 236 and 237 should be viewed. If amendment No. 236 is successful, I shall not seek to put amendment No. 237 to a vote. Amendment No. 236 seeks to simplify the way in which the arrangement can be brought to an end, by means of cessation, rather than requiring all the complications of dissolution. That is the answer to the hon. Member for Orkney and Shetland.

If I am unsuccessful in getting amendment No. 236 to the vote and winning that vote, the alternative—if one was doing pleadings, whether in Scotland or in

England, one would put that the latter pleading was ''further'' or ''in the alternative''—is amendment No. 237. That amendment accepts the decision of the Committee on amendment No. 236 to continue to pursue dissolution as the means to end the partnership. In amendment No. 237, I say, ''If you're going to insist on same-sex marriage in all but name, we might as well give the partner to that same-sex marriage the ability to bring that marriage to an end on the grounds that the person with whom he or she is living has been guilty of an act of sexual infidelity.''

I turn the argument back to my hon. Friend the Member for Buckingham (Mr. Bercow). If, as I think he is, he is in favour of what are effectively same-sex marriages, why does he not think that sexual infidelity on the part of one of the partners to the marriage should be a ground for its dissolution?

Photo of John Bercow John Bercow Conservative, Buckingham

The answer is that adequate provision is already made in the context of unreasonable behaviour. The term ''adultery'' has a specific legal connotation.

As I am a generous man, may I simply say to my hon. Friend that my belief that he is at heart a logician is now confirmed? There is a certain logic to his position, at least according to his lights.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

Praise indeed. That is as far as my hon. Friend is prepared to go. I do not know whether his comment is fair, but it certainly amused me.

There is no point in trying to develop my arguments further. As I understand it, for Scotland we are not talking about unreasonable behaviour but irretrievable breakdown. There is a series of grounds upon which a marriage can be dissolved on the basis of irretrievable breakdown, and the provisions set out what could happen—for example, if there has been at any time behaviour such that the pursuer cannot reasonably be expected to cohabit with the defendant.

Unfortunately, I understand from what I read in books that these days some marriages or partnerships are open marriages or partnerships in which one or other, or sometimes both, of the partners has sexual relationships outside the partnership with one or more other individuals. I would call that adultery in the context of marriage or, in the context of a same-sex marriage, sexual infidelity. My understanding of the law is that if persistent sexual infidelity has been connived at or ignored by one of the partners in a partnership, that in itself could be used as a defence against a dissolution application made on the grounds of unreasonable behaviour. The argument would go this way: on the basis that my partner was quite happy with my sleeping around up until now, why is he suddenly calling a halt on this particular relationship outside the partnership? In order to prevent such an estoppel arising in a contested dissolution, if one party to the marriage is a victim of sexual infidelity, without any further argument that should be a ground for making an application for dissolution on the grounds of irretrievable breakdown.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

I am not sure where to start. Dealing with the logic of the hon. Gentleman's arguments is a little like trying to unscramble eggs. He said various things that require an answer. The first

is his suggestion that his amendments Nos. 236 and 237 are alternatives. I do not see how changing ''dissolution'' in one part of one clause but leaving it elsewhere, as evidenced by any number of different examples, answers the objection that the amendments are not consistent with each other or the remainder of the clause.

I wish to deal with the point about sexual infidelity. I am not aware of any other area of family law in which sexual infidelity is used as a term of art in the manner in which the hon. Gentleman would wish it to be used for civil partnerships. He has not favoured us with an amendment to any part in the Bill in order to suggest what might constitute sexual infidelity. Therefore, one would assume that it would be left to the courts to build up a body of law on what constituted sexual infidelity. Would that be a single sexual act with another person, or would it have to be a series of acts? Would—to put it bluntly—a single kiss be sufficient or would something more be required? Not for the first time, the import of what the hon. Member for Christchurch has brought to the Committee is that it would in effect be a lawyers' charter—another gravy train for no good reason. Subsection (3) includes the question of the conduct with which the defender might not reasonably be expected to live, and as the hon. Member for Glasgow, Maryhill (Ann McKechin) has already said, it is clear that most of the acts envisaged by the hon. Gentleman would be caught by that.

The hon. Gentleman's suggestion that sexual infidelity should somehow be a read-over for adultery in civil marriage does not work for me. One has to consider the question of what ''infidelity'' means—unfaithfulness, to use another word. It is my view that the circumstance that the hon. Gentleman outlined would not even be caught by the phrase ''sexual infidelity'' because if someone engaged in some sort of sexual act with another person with the acceptance or connivance of the partner in a civil partnership, surely he or she would not have been unfaithful to that partner. Infidelity is more than a mere act, in the way that adultery is.

There are all sorts of contradictions in the hon. Gentleman's position. He has argued at great length throughout the Committee proceedings that we should not be creating a rival institution to marriage, yet he suggests that we should make dissolution or cessation—he has never yet explained the difference—more like marriage. I do not understand that, but I think that the root of the problem is that the hon. Gentleman just does not get this Bill at all, or what it is about. He is obsessed with labels and considers all the time whether we are creating something that is like marriage. This is not about creating something that is like marriage, but is about creating the safer circumstances that arise from marriage. If the creation of something that is like marriage is necessary for that, I am quite happy with it.

Photo of Anne McGuire Anne McGuire Parliamentary Under-Secretary (Department for Constitutional Affairs) (Scotland)

The hon. Gentleman hit the nail on the head in his last couple of comments. If I could use a 1960s vernacular phrase—well, it was very popular in the 1960s and hon. Members who are too young to

remember that must forgive me—we have here seen a fundamental dichotomy, and it is clear that the hon. Member for Christchurch has very little sympathy with the Bill. He just does not get it, as the hon. Member for Orkney and Shetland said.

With the greatest respect, that was shown in some of the comments of the hon. Member for Christchurch. He wants to make cohabitation, as he calls it, looser in the Bill. He wants to make it easier to get out of same-sex partnerships. As my right hon. Friend the Minister said in previous discussions, we see them as something far more stable—a means of giving legal coherence to long-term relationships. I fear that the radical changes that the hon. Gentleman proposes would totally undermine that approach.

I shall deal briefly with the amendments to which the hon. Member for Christchurch has spoken. I shall make the assumption, which may be wrong, that since he did not speak to two or three of his amendments, he is not so exercised about them. To save the Committee's time, I will deal with those to which he spoke.

Amendment No. 236 replaces dissolution with cessation. I have already stated that a civil partnership is a serious commitment with legal consequences and that it requires an appropriate level of formality to bring it to an end. The legal effects of a civil partnership, such as the inability to enter another civil partnership or marry, are in force until such times as those formalities have been completed. I suggest to the hon. Member for Christchurch that a civil partnership is not just a simple arrangement—Saturday night, become a civil partner; Monday night, get it dissolved. That is not the intention of the Bill.

The terminology in the Bill is important. Dissolution reflects the legal, court-based process required to bring a legal relationship such as a civil partnership to an end and the fact that the legal consequences of a civil partnership remain in place until all necessary formalities are completed. Cessation implies that a civil partnership can be brought to an end at will, and the word is incompatible with the status and dignity that the Government wish to give to civil partnerships.

Amendment No. 237 seeks to remove provisions that set out when an irretrievable breakdown of a civil partnership is taken to be established and to legislate, in the hon. Gentleman's words, in much more flexible or looser terms. As with civil marriage in Scotland, the irretrievable breakdown of a civil partnership could be taken on grounds of unreasonable behaviour, desertion, non-cohabitation for two years when the defender agrees with the application for dissolution or non-cohabitation for five years where the defender disagrees. The amendment would mean that the irretrievable breakdown is taken to be established if the defender consents, if the defender has committed

''an act of sexual infidelity,''

or there has been no cohabitation for six months.

The first part of the amendment would mean that the civil partnership could be dissolved almost as soon as it has been formed. It makes a mockery of what civil partnerships set out to be and it undermines the legal relationship. The second part sets out that a civil partnership can be dissolved where the defender has committed an act of sexual infidelity. It is not necessary to put that in the Bill. Clause 115(3)(a) already sets out that a civil partnership can be dissolved on grounds of unreasonable behaviour, and sexual infidelity certainly constitutes such grounds.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs) 10:30 am, 26th October 2004

If sexual infidelity can constitute such grounds, what assurance is there that it will always constitute such grounds? That is the difference between what the Minister is saying and my amendment.

Photo of Anne McGuire Anne McGuire Parliamentary Under-Secretary (Department for Constitutional Affairs) (Scotland)

What I am saying is the same as any dissolution process. I am certainly not going to second-guess a judge or sheriff and certainly not in a Scots court. The provision for unreasonable behaviour is in the clause, and sexual infidelity could constitute such grounds for dissolution.

The hon. Gentleman also ducked a problem of definition. What is sexual infidelity and how would it be proved? Adultery is a voluntary sexual intercourse with a person of the opposite sex who is not one's spouse. Adultery is specific grounds for divorce in Scotland, but if a husband commits sexual infidelity with another man, it is not adultery. However, that is covered by unreasonable behaviour in Scots divorce law.

The third part of amendment No. 237 sets out that a civil partnership can be dissolved if there is no cohabitation between the partners during six months prior to the action. As is the case with civil marriage, there is no requirement for married couples physically to live together. Some couples who already have their own homes and choose not to live together will form a civil partnership. Living apart for six months does not always signify the end of a relationship; it might simply mean that one partner has temporarily moved to take up work. Members of Parliament in Scotland live four days a week away from their marital home, and I am not sure whether we could cite that as a case for dissolution. Perhaps some of our spouses would disagree with that.

I do not want to get into the details of the other two amendments. Clause 115 provides that an action for the dissolution of a civil partnership can be brought in the Court of Session or in the sheriff court. It sets out the terms under which a court may grant a decree and when an achievable breakdown of a civil partnership is established. In the light of those arguments, I ask the hon. Gentleman to withdraw his amendment.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

The Minister says that she and I are at odds about the principles of the Bill, and we are. The basic problem is that I am keen that all relationships outside marriage should be treated on a par. That is why I earlier described cohabitation as a looser bond than marriage and why I think that a same-sex partnership should be a looser bond than marriage. That should be reflected in the Bill, but I understand that some people take a different view.

The Minister said that sexual infidelity can be taken into account in dissolution proceedings in Scotland, but she also told us that in divorce proceedings in Scotland, adultery is a specific ground. She then sought to differentiate between adultery and sexual infidelity.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

I have listened to as much as I can. There is only one ground for divorce, and that is the irretrievable breakdown of the marriage. There are various ways in which that could be evidenced. If the hon. Gentleman is going to make his point, can he at least make it accurately?

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

In order to try to shorten matters, I agree with the hon. Gentleman that we are talking about evidence. The Minister was saying that adultery is evidence of the irretrievable breakdown of a marriage, but she does not think that sexual infidelity should be. If adultery is specifically identified as evidence of the irretrievable breakdown of a marriage in Scotland, why should sexual infidelity not be acknowledged in relation to the breakdown of a civil partnership?

Technical points have been made about the definition of sexual infidelity. I am sure that the details of the sexual infidelity would be set out in any pleadings and that the court would be able to reach a judgment. I am disappointed that the hon. Member for Orkney and Shetland thinks that that will create a gravy train for lawyers. To say that is to suggest that he expects a lot of civil partnerships to be the subject of legal proceedings for their dissolution. I did not think that that was the case being put forward by the promoters of the Bill.

Amendment No. 237 is the most fundamental of this group of amendments. Amendment No. 236 would insert the word ''cessation'' because that is different language from dissolution. It is also the language that was adopted by Lord Lester in his Bill, which was designed to differentiate between marriage and relationships outside marriage, which have a looser bond. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 237, in clause 115, page 60, line 3, leave out paragraphs (a) to (d) and insert—

'(a) the defender consents to the granting of decree of dissolution of the civil partnership,

(b) the defender has committed an act of sexual infidelity, or

(c) there has been no cohabitation between the civil partners at any time during a continuous period of six months immediately preceding the bringing of the action.'.—[Mr. Chope.]

Question put, That the amendment be made:—

The Committee divided: Ayes 1, Noes 13.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

The Committee divided: Ayes 13, Noes 1.

Question accordingly agreed to.

Clause 115 ordered to stand part of the Bill.

Clause 116 ordered to stand part of the Bill.