Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
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Other Bills before Parliament

Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 5 — Matters to which court is to have regard under Parts 1 to 4
152

(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
the civil partnership;
(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
chance of acquiring.
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
2(1)(d), (e) or (f)),
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
resources of the child;
(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
have regard to—
(a)
whether A has assumed any responsibility for the child’s
35
maintenance;
(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
responsibility;
(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
2(1)(a), (b) or (c),

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 6 — Making of Part 1 orders having regard to pension benefits
153

(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.
      (4)
If—
(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
favour of the other,

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).
Part 6
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
not).
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.

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 6 — Making of Part 1 orders having regard to pension benefits
154

      (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
any extent.
      (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
partnership, or
(b)
has been the subject of pension sharing between the civil partners.
Pensions: lump sums
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.

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 6 — Making of Part 1 orders having regard to pension benefits
155

      (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
partnership, or
(b)
has been the subject of pension sharing between the civil partners.
Pensions: supplementary
10
27
If—
(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.
Regulations
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
(ii)
the terms on which,
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
paragraphs 25 and 26;
(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
valuation of—
(i)
benefits under a pension arrangement, or
(ii)
shareable state scheme rights (within the meaning of
45
paragraph 16(3)),

for the purposes of the court’s functions in connection with the
exercise of any of its powers under this Schedule.

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 8 — Failure to maintain: financial provision (and interim orders)
156

      (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
1999 Act.
5
      (3)
Regulations under sub-paragraph (1) may make different provision for
different cases.
      (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).
Part 7
Maintenance pending outcome of dissolution, nullity or separation
20
proceedings
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
made, and
(b)
ending with the date on which the proceedings are determined,

as the court thinks reasonable.
Part 8
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
respondent”)—
(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

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 8 — Failure to maintain: financial provision (and interim orders)
157

(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
on the application,

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
Interim orders
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
33    (1)
The orders are—
(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
may be specified;
(c)
an order that the respondent must pay to the applicant such lump
sum as may be specified;
(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
specified—
(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

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 8 — Failure to maintain: financial provision (and interim orders)
158

      (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
specified, and
(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
      (2)
In deciding—
(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
      (2)
In deciding—
(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
relates.