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 9 — Commencement of certain proceedings and duration of certain orders
159

Restrictions on making orders under this Part
37
The power to make an order under paragraph 33(1)(d), (e) or (f) is subject to
paragraph 41(1) and (5) (restrictions on orders in favour of children who
have reached 18).
Part 9
5
Commencement of certain proceedings and duration of certain orders
Commencement of proceedings for ancillary relief, etc.
38    (1)
Sub-paragraph (2) applies if an application for a dissolution, nullity or
separation order has been made.
      (2)
Subject to sub-paragraph (3), proceedings for—
10
(a)
an order under Part 1 (financial provision on dissolution etc.),
(b)
a property adjustment order, or
(c)
an order under Part 7 (maintenance pending outcome of dissolution,
nullity or separation proceedings),

may be begun (subject to and in accordance with rules of court) at any time
15
after the presentation of the application.
      (3)
Rules of court may provide, in such cases as may be prescribed by the rules,
that—
(a)
an application for any such relief as is mentioned in sub-paragraph
(2) must be made in the application or response, and
20
(b)
an application for any such relief which—
(i)
is not so made, or
(ii)
is not made until after the end of such period following the
presentation of the application or filing of the response as
may be so prescribed,
25

may be made only with the leave of the court.
Duration of periodical and secured periodical payments orders for a civil partner
39    (1)
The court may specify in a periodical payments or secured periodical
payments order in favour of a civil partner such term as it thinks fit, except
that the term must not—
30
(a)
begin before the date of the making of an application for the order, or
(b)
extend beyond the limits given in sub-paragraphs (2) and (3).
      (2)
The limits in the case of a periodical payments order are—
(a)
the death of either civil partner;
(b)
where the order is made on or after the making of a dissolution or
35
nullity order, the formation of a subsequent civil partnership or
marriage by the civil partner in whose favour the order is made.
      (3)
The limits in the case of a secured periodical payments order are—
(a)
the death of the civil partner in whose favour the order is made;
(b)
where the order is made on or after the making of a dissolution or
40
nullity order, the formation of a subsequent civil partnership or
marriage by the civil partner in whose favour the order is made.

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 9 — Commencement of certain proceedings and duration of certain orders
160

      (4)
In the case of an order made on or after the making of a dissolution or nullity
order, sub-paragraphs (1) to (3) are subject to paragraphs 23(3) and 51(4).
      (5)
If a periodical payments or secured periodical payments order in favour of
a civil partner is made on or after the making of a dissolution or nullity
order, the court may direct that that civil partner is not entitled to apply
5
under paragraph 43 for the extension of the term specified in the order.
      (6)
If—
(a)
a periodical payments or secured periodical payments order in
favour of a civil partner is made otherwise than on or after the
making of a dissolution or nullity order, and
10
(b)
the civil partnership is subsequently dissolved or annulled but the
order continues in force,

the order ceases to have effect (regardless of anything in it) on the formation
of a subsequent civil partnership or marriage by that civil partner, except in
relation to any arrears due under it on the date of its formation.
15
Subsequent civil partnership or marriage
40
If after the making of a dissolution or nullity order one of the civil partners
forms a subsequent civil partnership or marriage, that civil partner is not
entitled to apply, by reference to the dissolution or nullity order, for—
(a)
an order under Part 1 in that civil partner’s favour, or
20
(b)
a property adjustment order,

against the other civil partner in the dissolved or annulled civil partnership.
Duration of continuing orders in favour of children, and age limit on making certain orders in
their favour
41    (1)
Subject to sub-paragraph (5)—
25
(a)
no order under Part 1,
(b)
no property adjustment order made by virtue of paragraph 7(1)(a)
(transfer of property), and
(c)
no order made under Part 8 (failure to maintain) by virtue of
paragraph 33,
30

is to be made in favour of a child who has reached 18.
      (2)
The term to be specified in a periodical payments or secured periodical
payments order in favour of a child may begin with—
(a)
the date of the making of an application for the order or a later date,
or
35
(b)
a date ascertained in accordance with sub-paragraph (7) or (8).
      (3)
The term to be specified in such an order—
(a)
must not in the first instance extend beyond the date of the birthday
of the child next following the child’s reaching the upper limit of the
compulsory school age unless the court considers that in the
40
circumstances of the case the welfare of the child requires that it
should extend to a later date, and
(b)
must not in any event, subject to sub-paragraph (5), extend beyond
the date of the child’s 18th birthday.
      (4)
Sub-paragraph (3)(a) must be read with section 8 of the Education Act 1996
45
(c. 56) (which applies to determine for the purposes of any enactment
whether a person is of compulsory school age).

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 9 — Commencement of certain proceedings and duration of certain orders
161

      (5)
Sub-paragraphs (1) and (3)(b) do not apply in the case of a child if it appears
to the court that—
(a)
the child is, or will be, or, if an order were made without complying
with either or both of those provisions, would be—
(i)
receiving instruction at an educational establishment, or
5
(ii)
undergoing training for a trade, profession or vocation,

whether or not the child also is, will be or would be in gainful
employment, or
(b)
there are special circumstances which justify the making of an order
without complying with either or both of sub-paragraphs (1) and
10
(3)(b).
      (6)
A periodical payments order in favour of a child, regardless of anything in
the order, ceases to have effect on the death of the person liable to make
payments under the order, except in relation to any arrears due under the
order on the date of the death.
15
      (7)
If—
(a)
a maintenance calculation (“the current calculation”) is in force with
respect to a child, and
(b)
an application is made under this Schedule for a periodical payments
or secured periodical payments order in favour of that child—
20
(i)
in accordance with section 8 of the Child Support Act 1991
(c. 48), and
(ii)
before the end of 6 months beginning with the making of the
current calculation,

the term to be specified in any such order made on that application may be
25
expressed to begin on, or at any time after, the earliest permitted date.
      (8)
“The earliest permitted date” is whichever is the later of—
(a)
the date 6 months before the application is made, or
(b)
the date on which the current calculation took effect or, where
successive maintenance calculations have been continuously in force
30
with respect to a child, on which the first of those calculations took
effect.
      (9)
If—
(a)
a maintenance calculation ceases to have effect by or under any
provision of the 1991 Act, and
35
(b)
an application is made, before the end of 6 months beginning with
the relevant date, for a periodical payments or secured periodical
payments order in favour of a child with respect to whom that
maintenance calculation was in force immediately before it ceased to
have effect,
40

the term to be specified in any such order made on that application may
begin with the date on which that maintenance calculation ceased to have
effect or any later date.
     (10)
“The relevant date” means the date on which the maintenance calculation
ceased to have effect.
45
     (11)
In this paragraph “maintenance calculation” has the same meaning as it has
in the 1991 Act by virtue of section 54 of the 1991 Act as read with any
regulations in force under that section.

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 10 — Variation, discharge etc. of certain orders for financial relief
162

Part 10
Variation, discharge etc. of certain orders for financial relief
Orders etc. to which this Part applies
42    (1)
This Part applies to the following orders—
(a)
a periodical payments order under Part 1 (financial provision on
5
dissolution etc.) or Part 8 (failure to maintain);
(b)
a secured periodical payments order under Part 1 or 8;
(c)
an order under Part 7 (maintenance pending outcome of dissolution
proceedings etc.);
(d)
an interim order under Part 8;
10
(e)
an order made under Part 1 by virtue of paragraph 3(3) or under Part
8 by virtue of paragraph 34(2) (lump sum by instalments);
(f)
a deferred order made under Part 1 by virtue of paragraph 2(1)(c)
(lump sum for civil partner) which includes provision made by
virtue of—
15
(i)
paragraph 25(2), or
(ii)
paragraph 26,

(provision in respect of pension rights);
(g)
a property adjustment order made on or after the making of a
separation order by virtue of paragraph 7(1)(b), (c) or (d) (order for
20
settlement or variation of settlement);
(h)
a sale of property order;
(i)
a pension sharing order made before the dissolution or nullity order
has been made final.
      (2)
If the court has made an order referred to in sub-paragraph (1)(f)(ii), this Part
25
ceases to apply to the order on the death of either of the civil partners.
      (3)
The powers exercisable by the court under this Part in relation to an order
are also exercisable in relation to any instrument executed in pursuance of
the order.
Powers to vary, discharge, suspend or revive order
30
43    (1)
If the court has made an order to which this Part applies, it may—
(a)
vary or discharge the order,
(b)
suspend any provision of it temporarily, or
(c)
revive the operation of any provision so suspended.
      (2)
Sub-paragraph (1) is subject to the provisions of this Part and paragraph
35
39(5).
Power to remit arrears
44    (1)
If the court has made an order referred to in paragraph 42(1)(a), (b), (c) or (d),
it may remit the payment of any arrears due under the order or under any
part of the order.
40
      (2)
Sub-paragraph (1) is subject to the provisions of this Part.

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 10 — Variation, discharge etc. of certain orders for financial relief
163

Additional powers on discharging or varying a periodical or secured periodical payments order
after dissolution of civil partnership
45    (1)
Sub-paragraph (2) applies if, after the dissolution of a civil partnership, the
court—
(a)
discharges a periodical payments order or secured periodical
5
payments order made in favour of a civil partner, or
(b)
varies such an order so that payments under the order are required
to be made or secured only for such further period as is determined
by the court.
      (2)
The court may make supplemental provision consisting of any of the
10
following—
(a)
an order for the payment of a lump sum in favour of one of the civil
partners;
(b)
one or more property adjustment orders in favour of one of the civil
partners;
15
(c)
one or more pension sharing orders;
(d)
a direction that the civil partner in whose favour the original order
discharged or varied was made is not entitled to make any further
application for—
(i)
a periodical payments or secured periodical payments order,
20
or
(ii)
an extension of the period to which the original order is
limited by any variation made by the court.
      (3)
The power under sub-paragraph (2) is in addition to any power the court has
apart from that sub-paragraph.
25
46    (1)
An order for the payment of a lump sum under paragraph 45 may—
(a)
provide for the payment of it 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.
30
      (2)
Sub-paragraphs (5) and (6) of paragraph 3 (interest on deferred instalments)
apply where the court makes an order for the payment of a lump sum under
paragraph 45 as they apply where it makes such an order under Part 1.
      (3)
If under paragraph 45 the court makes more than one property adjustment
order in favour of the same civil partner, each of those orders must fall
35
within a different paragraph of paragraph 7(1) (types of property
adjustment orders).
      (4)
Part 3 (orders for the sale of property) and paragraph 68 (direction for
settlement of instrument) apply where the court makes a property
adjustment order under paragraph 45 as they apply where it makes any
40
other property adjustment order.
      (5)
Paragraph 18 (restrictions on making of pension sharing order) applies in
relation to a pension sharing order under paragraph 45 as it applies in
relation to any other pension sharing order.

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 10 — Variation, discharge etc. of certain orders for financial relief
164

Variation etc. of periodical or secured periodical payments orders made in cases of failure to
maintain
47    (1)
An application for the variation under paragraph 43 of a periodical
payments order or secured periodical payments order made under Part 8 in
favour of a child may, if the child has reached 16, be made by the child
5
himself.
      (2)
Sub-paragraph (3) applies if a periodical payments order made in favour of
a child under Part 8 ceases to have effect—
(a)
on the date on which the child reaches 16, or
(b)
at any time after that date but before or on the date on which the
10
child reaches 18.
      (3)
If, on an application made to the court for an order under this sub-
paragraph, it appears to the court that—
(a)
the child is, will be or, if an order were made under this sub-
paragraph, would be—
15
(i)
receiving instruction at an educational establishment, or
(ii)
undergoing training for a trade, profession or vocation,

whether or not the child also is, will be or would be in gainful
employment, or
(b)
there are special circumstances which justify the making of an order
20
under this sub-paragraph,

the court may by order revive the order mentioned in sub-paragraph (2)
from such date as it may specify.
      (4)
A date specified under sub-paragraph (3) must not be earlier than the date
of the application under that sub-paragraph.
25
      (5)
If under sub-paragraph (3) the court revives an order it may exercise its
power under paragraph 43 in relation to the revived order.
Variation etc. of property adjustment and pension sharing orders
48
The court must not exercise the powers conferred by this Part in relation to
a property adjustment order falling within paragraph 7(1)(b), (c) or (d)
30
(order for settlement or for variation of settlement) except on an application
made in proceedings—
(a)
for the rescission of the separation order by reference to which the
property adjustment order was made, or
(b)
for a dissolution order in relation to the civil partnership.
35
49    (1)
In relation to a pension sharing order which is made at a time before the
dissolution or nullity order has been made final—
(a)
the powers conferred by this Part (by virtue of paragraph 42(1)(i))
may be exercised—
(i)
only on an application made before the pension sharing order
40
has or, but for paragraph (b), would have taken effect, and
(ii)
only if, at the time when the application is made, the
dissolution or nullity order has not been made final, and
(b)
an application made in accordance with paragraph (a) prevents the
pension sharing order from taking effect before the application has
45
been dealt with.

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 10 — Variation, discharge etc. of certain orders for financial relief
165

      (2)
No variation of a pension sharing order is to be made so as to take effect
before the order is made final.
      (3)
The variation of a pension sharing order prevents the order taking effect
before the end of such period after the making of the variation as may be
prescribed by regulations made by the Lord Chancellor.
5
      (4)
The power to make regulations under sub-paragraph (3) is exercisable by
statutory instrument which is subject to annulment in pursuance of a
resolution of either House of Parliament.
50    (1)
Sub-paragraphs (2) and (3)—
(a)
are subject to paragraphs 45 and 46, and
10
(b)
do not affect any power exercisable by virtue of paragraph 42(e), (f),
(g) or (i) or otherwise than by virtue of this Part.
      (2)
No property adjustment order or pension sharing order may be made on an
application for the variation of a periodical payments or secured periodical
payments order made (whether in favour of a civil partner or in favour of a
15
child of the family) under Part 1.
      (3)
No order for the payment of a lump sum may be made on an application for
the variation of a periodical payments or secured periodical payments order
in favour of a civil partner (whether made under Part 1 or 8).
Matters to which court is to have regard in exercising powers under this Part
20
51    (1)
In exercising the powers conferred by this Part the court must have regard
to all the circumstances of the case, giving first consideration to the welfare,
while under 18, of any child of the family who has not reached 18.
      (2)
The circumstances of the case include, in particular, any change in any of the
matters to which the court was required to have regard when making the
25
order to which the application relates.
      (3)
Sub-paragraph (4) applies in the case of—
(a)
a periodical payments order, or
(b)
a secured periodical payments order,

made on or after the making of a dissolution or nullity order.
30
      (4)
The court must consider whether in all the circumstances, and after having
regard to any such change, it would be appropriate to vary the order so that
payments under the order are required—
(a)
to be made, or
(b)
to be secured,
35

only for such further period as will in the opinion of the court be sufficient
to enable the civil partner in whose favour the order was made to adjust
without undue hardship to the termination of those payments.
      (5)
In considering what further period will be sufficient, the court must, if the
civil partnership has been dissolved, take into account any proposed
40
exercise by it of its powers under paragraph 45.
      (6)
If the civil partner against whom the order was made has died, the
circumstances of the case also include the changed circumstances resulting
from that civil partner’s death.