HHJ Vincent sitting as a s 9 Deputy High Court Judge. The parties, who are British nationals, entered a French form of civil partnership, a ‘PACS’, when living in France. They returned to live in England in 2022. They were advised to dissolve their PACS and enter into a civil partnership in the UK as this would simplify their tax affairs, as they would not have to explain to HMRC the nature of the PACS each time they filed their returns; [10]. They were also advised by their local registry office that they would first need to dissolve their PACS in France before entering into a civil partnership in the UK. The parties received a dissolution certificate dated 10 March 2023 confirming the PACS had been dissolved. They then took steps to plan their civil partnership in England.

After presenting the relevant documents, they were informed by the General Register Office that their dissolution was not capable of recognition under s 235(1) Civil Partnership Act 2004 (CPA 2004) as at the commencement of their dissolution neither party to the dissolution was a French national and was not resident or domiciled in France. As such their proposed civil partnership arrangements could not proceed. The parties were advised to apply to the Family Court for a declaration that the dissolution was valid, alternatively for a dissolution of the PACS under English law. As part of the proceedings, the court directed that the parties obtain a report from an expert advising as to the nature of the PACS, and whether or not the steps taken had been effective so as to dissolve it. The expert reviewed the PACS certificate in this case and the certificate of dissolution and confirmed that both were valid and advised that no further steps needed to be taken. The judgment sets out the routes taken to achieve the dissolution.

It was argued that there were three possible routes to enable the court to make the declarations sought. The first two were declarations under s 58(1)(c) CPA 2004 that the civil partnership did not subsist on a specified date (here being after 10 March 2023) or s 58(1)(d) CPA 2004 that the validity of a dissolution is entitled to recognition. The third route was by invoking the inherent jurisdiction of the court to make an additional freestanding declaration. The judge determined that the parties were entitled to a declaration under s 58(1)(c) and not s 58(1)(d). This was because although they had established on the facts that their dissolution was valid, they could not satisfy the requirement of s 235 as they were not habitually resident, domiciled in, nor nationals of France at the time of the dissolution.

There was no equivalent provision and no such requirement under s 58(1)(c). The truth of the proposition to be declared, namely that the PACS did not subsist after 10 March 2023, could evidently be proved to the satisfaction of the court; [58]. It followed that pursuant to s 59 CPA 2004, the court ‘must make the declaration unless to do so would be manifestly contrary to public policy’. There were no public policy grounds to refuse the declaration sought. On the contrary, it was argued that it would be manifestly against public policy to allow parties such as these to have lost the benefits and protections of the PACS, and to be unable to replace them with those that can be afforded to them by entering a civil partnership. It would also be unfair given that the parties had complied with the advice given to them; [57].

In respect of the third route, it was noted that the inherent jurisdiction could not be used to grant any of the s 58 CPA 2004 declarations by the back door; [61]. However, it was open to the court to make a different declaration which was not contained in any other statutory regime but still achieved the ultimate aim. The declaration sought was that ‘the parties are not currently married or civil partners in this or any other jurisdiction and are free to enter into marriage or civil partnership in England and Wales’. HHJ Vincent determined that such declaration was justified for a number of reasons (see [64]) including that, without the declarations, the parties would have no way forward, as if it were not recognised that the PACS was dissolved, the parties would be unable to apply for a dissolution in this jurisdiction because their relationship had not irretrievably broken down.