|
| |
|
(b) | the financial needs, obligations and responsibilities which each civil |
| |
partner has or is likely to have in the foreseeable future; |
| |
(c) | the standard of living enjoyed by the family before the breakdown of |
| |
| |
(d) | the age of each civil partner and the duration of the civil partnership; |
| 5 |
(e) | any physical or mental disability of either of the civil partners; |
| |
(f) | the contributions which each civil partner has made or is likely in the |
| |
foreseeable future to make to the welfare of the family, including any |
| |
contribution by looking after the home or caring for the family; |
| |
(g) | the conduct of each civil partner, if that conduct is such that it would |
| 10 |
in the opinion of the court be inequitable to disregard it; |
| |
(h) | in the case of proceedings for a dissolution or nullity order, the value |
| |
to each civil partner of any benefit which, because of the dissolution |
| |
or annulment of the civil partnership, that civil partner will lose the |
| |
| 15 |
Particular matters to be taken into account when exercising powers in relation to children |
| |
22 (1) | This paragraph applies to the exercise by the court in relation to a child of |
| |
the family of its powers under— |
| |
(a) | Part 1 (financial provision on dissolution etc.) by virtue of paragraph |
| |
| 20 |
(b) | Part 2 (property adjustment orders), or |
| |
(c) | Part 3 (sale of property orders). |
| |
(2) | The court must in particular have regard to— |
| |
(a) | the financial needs of the child; |
| |
(b) | the income, earning capacity (if any), property and other financial |
| 25 |
| |
(c) | any physical or mental disability of the child; |
| |
(d) | the way in which the child was being and in which the civil partners |
| |
expected the child to be educated or trained; |
| |
(e) | the considerations mentioned in relation to the civil partners in |
| 30 |
paragraph 21(2)(a), (b), (c) and (e). |
| |
(3) | In relation to the exercise of any of those powers against a civil partner (“A”) |
| |
in favour of a child of the family who is not A’s child, the court must also |
| |
| |
(a) | whether A has assumed any responsibility for the child’s |
| 35 |
| |
(b) | if so, the extent to which, and the basis upon which, A assumed such |
| |
responsibility and the length of time for which A discharged such |
| |
| |
(c) | whether in assuming and discharging such responsibility A did so |
| 40 |
knowing that the child was not A’s child; |
| |
(d) | the liability of any other person to maintain the child. |
| |
Terminating financial obligations |
| |
23 (1) | Sub-paragraphs (2) and (3) apply if, on or after the making of a dissolution |
| |
or nullity order, the court decides to exercise its powers under— |
| 45 |
(a) | Part 1 (financial provision on dissolution etc.) by virtue of paragraph |
| |
| |
|
| |
|
| |
|
(b) | Part 2 (property adjustment orders), |
| |
(c) | Part 3 (sale of property orders), or |
| |
(d) | Part 4 (pension sharing orders), |
| |
| in favour of one of the civil partners. |
| |
(2) | The court must consider whether it would be appropriate to exercise those |
| 5 |
powers in such a way that the financial obligations of each civil partner |
| |
towards the other will be terminated as soon after the making of the |
| |
dissolution or nullity order as the court considers just and reasonable. |
| |
(3) | If the court decides to make— |
| |
(a) | a periodical payments order, or |
| 10 |
(b) | a secured periodical payments order, |
| |
| in favour of one of the civil partners (“A”), it must in particular consider |
| |
whether it would be appropriate to require the payments to be made or |
| |
secured only for such term as would in its opinion be sufficient to enable A |
| |
to adjust without undue hardship to the termination of A’s financial |
| 15 |
dependence on the other civil partner. |
| |
| |
(a) | on or after the making of a dissolution or nullity order, an application |
| |
is made by one of the civil partners for a periodical payments or |
| |
secured periodical payments order in that civil partner’s favour, but |
| 20 |
(b) | the court considers that no continuing obligation should be imposed |
| |
on either civil partner to make or secure periodical payments in |
| |
| |
| the court may dismiss the application with a direction that the applicant is |
| |
not entitled to make any future application in relation to that civil |
| 25 |
partnership for an order under Part 1 by virtue of paragraph 2(1)(a) or (b). |
| |
| |
Making of Part 1 orders having regard to pension benefits |
| |
Pension benefits to be included in matters to which court is to have regard |
| |
24 (1) | The matters to which the court is to have regard under paragraph 21(2)(a) |
| 30 |
include any pension benefits under a pension arrangement or by way of |
| |
pension which a civil partner has or is likely to have; and, accordingly, in |
| |
relation to any pension benefits paragraph 21(2)(a)(ii) has effect as if “in the |
| |
foreseeable future” were omitted. |
| |
(2) | The matters to which the court is to have regard under paragraph 21(2)(h) |
| 35 |
include any pension benefits which, because of the making of a dissolution |
| |
or nullity order, a civil partner will lose the chance of acquiring. |
| |
(3) | “Pension benefits” means— |
| |
(a) | benefits under a pension arrangement, or |
| |
(b) | benefits by way of pension (whether under a pension arrangement or |
| 40 |
| |
Provisions applying where pension benefits taken into account in decision to make Part 1 order |
| |
25 (1) | This paragraph applies if, having regard to any benefits under a pension |
| |
arrangement, the court decides to make an order under Part 1. |
| |
|
| |
|
| |
|
(2) | To the extent to which the Part 1 order is made having regard to any benefits |
| |
under a pension arrangement, it may require the person responsible for the |
| |
pension arrangement, if at any time any payment in respect of any benefits |
| |
under the arrangement becomes due to the civil partner with pension rights, |
| |
to make a payment for the benefit of the other civil partner. |
| 5 |
(3) | The Part 1 order must express the amount of any payment required to be |
| |
made by virtue of sub-paragraph (2) as a percentage of the payment which |
| |
becomes due to the civil partner with pension rights. |
| |
(4) | Any such payment by the person responsible for the arrangement— |
| |
(a) | discharges so much of his liability to the civil partner with pension |
| 10 |
rights as corresponds to the amount of the payment, and |
| |
(b) | is to be treated for all purposes as a payment made by the civil |
| |
partner with pension rights in or towards the discharge of that civil |
| |
partner’s liability under the order. |
| |
(5) | If the civil partner with pension rights has a right of commutation under the |
| 15 |
arrangement, the Part 1 order may require that civil partner to exercise it to |
| |
| |
(6) | This paragraph applies to any payment due in consequence of commutation |
| |
in pursuance of the Part 1 order as it applies to other payments in respect of |
| |
benefits under the arrangement. |
| 20 |
(7) | The power conferred by sub-paragraph (5) may not be exercised for the |
| |
purpose of commuting a benefit payable to the civil partner with pension |
| |
rights to a benefit payable to the other civil partner. |
| |
(8) | The powers conferred by sub-paragraphs (2) and (5) may not be exercised in |
| |
relation to a pension arrangement which— |
| 25 |
(a) | is the subject of a pension sharing order in relation to the civil |
| |
| |
(b) | has been the subject of pension sharing between the civil partners. |
| |
| |
26 (1) | This paragraph applies if the benefits which the civil partner with pension |
| 30 |
rights has or is likely to have under a pension arrangement include any lump |
| |
sum payable in respect of that civil partner’s death. |
| |
(2) | The court’s power under Part 1 to order a civil partner to pay a lump sum to |
| |
the other civil partner includes the power to make by the order any |
| |
provision in sub-paragraph (3) to (5). |
| 35 |
(3) | If the person responsible for the pension arrangement has power to |
| |
determine the person to whom the sum, or any part of it, is to be paid, the |
| |
court may require him to pay the whole or part of that sum, when it becomes |
| |
due, to the other civil partner. |
| |
(4) | If the civil partner with pension rights has power to nominate the person to |
| 40 |
whom the sum, or any part of it, is to be paid, the court may require the civil |
| |
partner with pension rights to nominate the other civil partner in respect of |
| |
the whole or part of that sum. |
| |
(5) | In any other case, the court may require the person responsible for the |
| |
pension arrangement in question to pay the whole or part of that sum, when |
| 45 |
it becomes due, for the benefit of the other civil partner instead of to the |
| |
person to whom, apart from the order, it would be paid. |
| |
|
| |
|
| |
|
(6) | Any payment by the person responsible for the arrangement under an order |
| |
made under Part 1 made by virtue of this paragraph discharges so much of |
| |
his liability in respect of the civil partner with pension rights as corresponds |
| |
to the amount of the payment. |
| |
(7) | The powers conferred by this paragraph may not be exercised in relation to |
| 5 |
a pension arrangement which— |
| |
(a) | is the subject of a pension sharing order in relation to the civil |
| |
| |
(b) | has been the subject of pension sharing between the civil partners. |
| |
| 10 |
| |
(a) | a Part 1 order made by virtue of paragraph 25 or 26 imposes any |
| |
requirement on the person responsible for a pension arrangement |
| |
(“the first arrangement”), |
| |
(b) | the civil partner with pension rights acquires rights under another |
| 15 |
pension arrangement (“the new arrangement”) which are derived |
| |
(directly or indirectly) from the whole of that civil partner’s rights |
| |
under the first arrangement, and |
| |
(c) | the person responsible for the new arrangement has been given |
| |
notice in accordance with regulations made by the Lord Chancellor, |
| 20 |
| the Part 1 order has effect as if it had been made instead in respect of the |
| |
person responsible for the new arrangement. |
| |
| |
28 (1) | The Lord Chancellor may by regulations— |
| |
(a) | make provision, in relation to any provision of paragraph 25 or 26 |
| 25 |
which authorises the court making a Part 1 order to require the |
| |
person responsible for a pension arrangement to make a payment for |
| |
the benefit of the other civil partner, as to— |
| |
(i) | the person to whom, and |
| |
| 30 |
| the payment is to be made; |
| |
(b) | make provision, in relation to payment under a mistaken belief as to |
| |
the continuation in force of a provision included by virtue of |
| |
paragraph 25 or 26 in a Part 1 order, about the rights or liabilities of |
| |
the payer, the payee or the person to whom the payment was due; |
| 35 |
(c) | require notices to be given in respect of changes of circumstances |
| |
relevant to Part 1 orders which include provision made by virtue of |
| |
| |
(d) | make provision for the person responsible for a pension |
| |
arrangement to be discharged in prescribed circumstances from a |
| 40 |
requirement imposed by virtue of paragraph 25 or 26; |
| |
(e) | make provision about calculation and verification in relation to the |
| |
| |
(i) | benefits under a pension arrangement, or |
| |
(ii) | shareable state scheme rights (within the meaning of |
| 45 |
| |
| for the purposes of the court’s functions in connection with the |
| |
exercise of any of its powers under this Schedule. |
| |
|
| |
|
| |
|
(2) | Regulations under sub-paragraph (1)(e) may include— |
| |
(a) | provision for calculation or verification in accordance with guidance |
| |
from time to time prepared by a prescribed person, and |
| |
(b) | provision by reference to regulations under section 30 or 49(4) of the |
| |
| 5 |
(3) | Regulations under sub-paragraph (1) may make different provision for |
| |
| |
(4) | The power to make regulations under this paragraph is exercisable by |
| |
statutory instrument which is subject to annulment in pursuance of a |
| |
resolution of either House of Parliament. |
| 10 |
(5) | “Prescribed” means prescribed by regulations. |
| |
Interpretation of provisions relating to pensions |
| |
29 (1) | In this Part “the civil partner with pension rights” means the civil partner |
| |
who has or is likely to have benefits under a pension arrangement. |
| |
(2) | In this Part “pension arrangement” has the same meaning as in Part 4. |
| 15 |
(3) | In this Part, references to the person responsible for a pension arrangement |
| |
are to be read in accordance with section 26 of the Welfare Reform and |
| |
Pensions Act 1999 (c. 30). |
| |
| |
Maintenance pending outcome of dissolution, nullity or separation |
| 20 |
| |
30 | On an application for a dissolution, nullity or separation order, the court |
| |
may make an order requiring either civil partner to make to the other for the |
| |
other’s maintenance such periodical payments for such term— |
| |
(a) | beginning no earlier than the date on which the application was |
| 25 |
| |
(b) | ending with the date on which the proceedings are determined, |
| |
| as the court thinks reasonable. |
| |
| |
Failure to maintain: financial provision (and interim orders) |
| 30 |
Circumstances in which orders under this Part may be made |
| |
31 (1) | Either civil partner in a subsisting civil partnership may apply to the court |
| |
for an order under this Part on the ground that the other civil partner (“the |
| |
| |
(a) | has failed to provide reasonable maintenance for the applicant, or |
| 35 |
(b) | has failed to provide, or to make a proper contribution towards, |
| |
reasonable maintenance for any child of the family. |
| |
(2) | The court must not entertain an application under this paragraph unless— |
| |
(a) | the applicant or the respondent is domiciled in England and Wales |
| |
on the date of the application, |
| 40 |
(b) | the applicant has been habitually resident there throughout the |
| |
period of 1 year ending with that date, or |
| |
|
| |
|
| |
|
(c) | the respondent is resident there on that date. |
| |
(3) | If, on an application under this paragraph, it appears to the court that— |
| |
(a) | the applicant or any child of the family to whom the application |
| |
relates is in immediate need of financial assistance, but |
| |
(b) | it is not yet possible to determine what order, if any, should be made |
| 5 |
| |
| the court may make an interim order. |
| |
(4) | If, on an application under this paragraph, the applicant satisfies the court of |
| |
a ground mentioned in sub-paragraph (1), the court may make one or more |
| |
of the orders set out in paragraph 33. |
| 10 |
| |
32 | An interim order is an order requiring the respondent to make to the |
| |
applicant, until the determination of the application, such periodical |
| |
payments as the court thinks reasonable. |
| |
Orders that may be made where failure to maintain established |
| 15 |
| |
(a) | an order that the respondent must make to the applicant such |
| |
periodical payments for such term as may be specified; |
| |
(b) | an order that the respondent must secure to the applicant, to the |
| |
satisfaction of the court, such periodical payments for such term as |
| 20 |
| |
(c) | an order that the respondent must pay to the applicant such lump |
| |
| |
(d) | an order that the respondent must make such periodical payments |
| |
for such term as may be specified— |
| 25 |
(i) | to such person as may be specified, for the benefit of the child |
| |
to whom the application relates, or |
| |
(ii) | to the child to whom the application relates; |
| |
(e) | an order that the respondent must secure— |
| |
(i) | to such person as may be specified for the benefit of the child |
| 30 |
to whom the application relates, or |
| |
(ii) | to the child to whom the application relates, |
| |
| to the satisfaction of the court, such periodical payments for such |
| |
term as may be specified; |
| |
(f) | an order that the respondent must pay such lump sum as may be |
| 35 |
| |
(i) | to such person as may be specified for the benefit of the child |
| |
to whom the application relates, or |
| |
(ii) | to the child to whom the application relates. |
| |
(2) | In this Part “specified” means specified in the order. |
| 40 |
Particular provision that may be made by lump sum orders |
| |
34 (1) | An order under this Part for the payment of a lump sum may be made for |
| |
the purpose of enabling any liabilities or expenses reasonably incurred in |
| |
maintaining the applicant or any child of the family to whom the application |
| |
relates before the making of the application to be met. |
| 45 |
|
| |
|
| |
|
(2) | An order under this Part for the payment of a lump sum may— |
| |
(a) | provide for its payment by instalments of such amount as may be |
| |
| |
(b) | require the payment of the instalments to be secured to the |
| |
satisfaction of the court. |
| 5 |
(3) | Sub-paragraphs (1) and (2) do not restrict the power to make an order by |
| |
virtue of paragraph 33(1)(c) or (f). |
| |
Matters to which the court is to have regard on application under paragraph 31(1)(a) |
| |
35 (1) | This paragraph applies if an application under paragraph 31 is made on the |
| |
ground mentioned in paragraph 31(1)(a). |
| 10 |
| |
(a) | whether the respondent has failed to provide reasonable |
| |
maintenance for the applicant, and |
| |
(b) | what order, if any, to make under this Part in favour of the applicant, |
| |
| the court must have regard to all the circumstances of the case including the |
| 15 |
matters mentioned in paragraph 21(2). |
| |
(3) | If an application is also made under paragraph 31 in respect of a child of the |
| |
family who has not reached 18, the court must give first consideration to the |
| |
welfare of the child while under 18. |
| |
(4) | Paragraph 21(2)(c) has effect as if for the reference in it to the breakdown of |
| 20 |
the civil partnership there were substituted a reference to the failure to |
| |
provide reasonable maintenance for the applicant. |
| |
Matters to which the court is to have regard on application under paragraph 31(1)(b) |
| |
36 (1) | This paragraph applies if an application under paragraph 31 is made on the |
| |
ground mentioned in paragraph 31(1)(b). |
| 25 |
| |
(a) | whether the respondent has failed to provide, or to make a proper |
| |
contribution towards, reasonable maintenance for the child of the |
| |
family to whom the application relates, and |
| |
(b) | what order, if any, to make under this Part in favour of the child, |
| 30 |
| the court must have regard to all the circumstances of the case. |
| |
(3) | Those circumstances include— |
| |
(a) | the matters mentioned in paragraph 22(2)(a) to (e), and |
| |
(b) | if the child of the family to whom the application relates is not the |
| |
child of the respondent, the matters mentioned in paragraph 22(3). |
| 35 |
(4) | Paragraph 21(2)(c) (as it applies by virtue of paragraph 22(2)(e)) has effect as |
| |
if for the reference in it to the breakdown of the civil partnership there were |
| |
substituted a reference to— |
| |
(a) | the failure to provide, or |
| |
(b) | the failure to make a proper contribution towards, |
| 40 |
| reasonable maintenance for the child of the family to whom the application |
| |
| |
|
| |
|