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 10 — Variation, discharge etc. of certain orders for financial relief
166

Variation of secured periodical payments order where person liable has died
52    (1)
This paragraph applies if the person liable to make payments under a
secured periodical payments order has died.
      (2)
Subject to sub-paragraph (3), an application under this Part relating to the
order (and to any sale of property order which requires the proceeds of sale
5
of property to be used for securing those payments) may be made by—
(a)
the person entitled to payments under the periodical payments
order, or
(b)
the personal representatives of the deceased person.
      (3)
No such application may be made without the leave of the court after the
10
end of 6 months from the date on which representation in regard to the
estate of that person is first taken out.
      (4)
The personal representatives of the person who has died are not liable for
having distributed any part of the estate of the deceased after the end of the
6 month period on the ground that they ought to have taken into account the
15
possibility that the court might allow an application under this paragraph to
be made after that period by the person entitled to payments under the
order.
      (5)
Sub-paragraph (4) does not affect any power to recover any part of the estate
so distributed arising by virtue of the making of an order in pursuance of
20
this paragraph.
      (6)
In considering for the purposes of sub-paragraph (3) the question when
representation was first taken out—
(a)
a grant limited to settled land or to trust property is to be
disregarded, and
25
(b)
a grant limited to real estate or to personal estate is to be disregarded
unless a grant limited to the remainder of the estate has previously
been made or is made at the same time.
Power to direct when variation etc. is to take effect
53    (1)
If the court, in exercise of its powers under this Part, decides—
30
(a)
to vary, or
(b)
to discharge,

a periodical payments or secured periodical payments order, it may direct
that the variation or discharge is not to take effect until the end of such
period as may be specified in the order.
35
      (2)
Sub-paragraph (1) is subject to paragraph 39(1) and (6).
54    (1)
If—
(a)
a periodical payments or secured periodical payments order in
favour of more than one child (“the order”) is in force,
(b)
the order requires payments specified in it to be made to or for the
40
benefit of more than one child without apportioning those payments
between them,
(c)
a maintenance calculation (“the calculation”) is made with respect to
one or more, but not all, of the children with respect to whom those
payments are to be made, and
45

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 11 — Arrears and repayments
167

(d)
an application is made, before the end of the period of 6 months
beginning with the date on which the calculation was made, for the
variation or discharge of the order,

the court may, in exercise of its powers under this Part to vary or discharge
the order, direct that the variation or discharge is to take effect from the date
5
on which the calculation took effect or any later date.
      (2)
If—
(a)
an order (“the child order”) of a kind prescribed for the purposes of
section 10(1) of the Child Support Act 1991 (c. 48) is affected by a
maintenance calculation,
10
(b)
on the date on which the child order became so affected there was in
force a periodical payments or secured periodical payments order
(“the civil partner’s order”) in favour of a civil partner having the
care of the child in whose favour the child order was made, and
(c)
an application is made, before the end of the period of 6 months
15
beginning with the date on which the maintenance calculation was
made, for the civil partner’s order to be varied or discharged,

the court may, in exercise of its powers under this Part to vary or discharge
the civil partner’s order, direct that the variation or discharge is to take effect
from the date on which the child order became so affected or any later date.
20
      (3)
For the purposes of sub-paragraph (2), an order is affected if it ceases to have
effect or is modified by or under section 10 of the 1991 Act.
      (4)
Sub-paragraphs (1) and (2) do not affect any other power of the court to
direct that the variation of discharge of an order under this Part is to take
effect from a date earlier than that on which the order for variation or
25
discharge was made.
      (5)
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.
Part 11
30
Arrears and repayments
Payment of certain arrears unenforceable without the leave of the court
55    (1)
This paragraph applies if any arrears are due under—
(a)
an order under Part 1 (financial provision on dissolution etc.),
(b)
an order under Part 7 (maintenance pending outcome of dissolution,
35
nullity or separation proceedings), or
(c)
an order under Part 8 (failure to maintain),

and the arrears became due more than 12 months before proceedings to
enforce the payment of them are begun.
      (2)
A person is not entitled to enforce through the High Court or any county
40
court the payment of the arrears without the leave of that court.
      (3)
The court hearing an application for the grant of leave under this paragraph
may—
(a)
refuse leave,
(b)
grant leave subject to such restrictions and conditions (including
45
conditions as to the allowing of time for payment or the making of
payment by instalments) as that court thinks proper, or

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 11 — Arrears and repayments
168

(c)
remit the payment of the arrears or of any part of them.
      (4)
An application for the grant of leave under this paragraph must be made in
such manner as may be prescribed by rules of court.
Orders for repayment in certain cases of sums paid under certain orders
56    (1)
This paragraph applies if—
5
(a)
a person (“R”) is entitled to receive payments under an order listed
in sub-paragraph (2), and
(b)
R’s circumstances or the circumstances of the person (“P”) liable to
make payments under the order have changed since the order was
made, or the circumstances have changed as a result of P’s death.
10
      (2)
The orders are—
(a)
any order under Part 7 (maintenance pending outcome of
dissolution, nullity or separation proceedings);
(b)
any interim order under Part 8;
(c)
any periodical payments order;
15
(d)
any secured periodical payments order.
      (3)
P or P’s personal representatives may (subject to sub-paragraph (7)) apply
for an order under this paragraph against R or R’s personal representatives.
      (4)
If it appears to the court that, because of the changed circumstances or P’s
death, the amount received by R in respect of a relevant period exceeds the
20
amount which P or P’s personal representatives should have been required
to pay, it may order the respondent to the application to pay to the applicant
such sum, not exceeding the amount of the excess, as it thinks just.
      (5)
“Relevant period” means a period after the circumstances changed or (as the
case may be) after P’s death.
25
      (6)
An order under this paragraph for the payment of any sum may provide for
the payment of that sum by instalments of such amount as may be specified
in the order.
      (7)
An application under this paragraph—
(a)
may be made in proceedings in the High Court or a county court
30
for—
(i)
the variation or discharge of the order listed in sub-
paragraph (2), or
(ii)
leave to enforce, or the enforcement of, the payment of
arrears under that order, but
35
(b)
if not made in such proceedings, must be made to a county court;

and accordingly references in this paragraph to the court are references to
the High Court or a county court, as the circumstances require.
      (8)
The jurisdiction conferred on a county court by this paragraph is exercisable
even though, because of the amount claimed in the application, the
40
jurisdiction would not but for this sub-paragraph be exercisable by a county
court.
Orders for repayment after cessation of order because of subsequent civil partnership etc.
57    (1)
Sub-paragraphs (3) and (4) apply if—

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 11 — Arrears and repayments
169

(a)
a periodical payments or secured periodical payments order in
favour of a civil partner (“R”) has ceased to have effect because of the
formation of a subsequent civil partnership or marriage by R, and
(b)
the person liable to make payments under the order (“P”) (or P’s
personal representatives) has made payments in accordance with it
5
in respect of a relevant period in the mistaken belief that the order
was still subsisting.
      (2)
“Relevant period” means a period after the date of the formation of the
subsequent civil partnership or marriage.
      (3)
P (or P’s personal representatives) is not entitled to bring proceedings in
10
respect of a cause of action arising out of the circumstances mentioned in
sub-paragraph (1)(a) and (b) against R (or R’s personal representatives).
      (4)
But, on an application under this paragraph by P (or P’s personal
representatives) against R (or R’s personal representatives), the court—
(a)
may order the respondent to pay to the applicant a sum equal to the
15
amount of the payments made in respect of the relevant period, or
(b)
if it appears to the court that it would be unjust to make that order,
may—
(i)
order the respondent to pay to the applicant such lesser sum
as it thinks fit, or
20
(ii)
dismiss the application.
      (5)
An order under this paragraph for the payment of any sum may provide for
the payment of that sum by instalments of such amount as may be specified
in the order.
      (6)
An application under this paragraph—
25
(a)
may be made in proceedings in the High Court or a county court for
leave to enforce, or the enforcement of, payment of arrears under the
order in question, but
(b)
if not made in such proceedings, must be made to a county court;

and accordingly references in this paragraph to the court are references to
30
the High Court or a county court, as the circumstances require.
      (7)
The jurisdiction conferred on a county court by this paragraph is exercisable
even though, because of the amount claimed in the application, the
jurisdiction would not but for this sub-paragraph be exercisable by a county
court.
35
      (8)
Subject to sub-paragraph (9)—
(a)
the designated officer for a magistrates’ court to whom any
payments under a payments order are required to be made is not
liable for any act done by him in pursuance of the payments order
after the date on which that order ceased to have effect because of the
40
formation of a subsequent civil partnership or marriage by the
person entitled to payments under it, and
(b)
the collecting officer under an attachment of earnings order made to
secure payments under a payments order is not liable for any act
done by him after that date in accordance with any enactment or rule
45
of court specifying how payments made to him in compliance with
the attachment of earnings order are to be dealt with.
      (9)
Sub-paragraph (8) applies if (and only if) the act—
(a)
was one which the officer would have been under a duty to do had
the payments order not ceased to have effect, and
50

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 12 — Consent orders and maintenance agreements
170

(b)
was done before notice in writing of the formation of the subsequent
civil partnership or marriage was given to him by or on behalf of—
(i)
the person entitled to payments under the payments order,
(ii)
the person liable to make payments under it, or
(iii)
the personal representatives of either of them.
5
     (10)
In sub-paragraphs (8) and (9) “payments order” means a periodical
payments order or secured periodical payments order and “collecting
officer”, in relation to an attachment of earnings order, means—
(a)
the officer of the High Court,
(b)
the district judge of a county court, or
10
(c)
the designated officer for a magistrates’ court,

to whom a person makes payments in compliance with the order.
Part 12
Consent orders and maintenance agreements
Consent orders for financial relief
15
58    (1)
Regardless of anything in the preceding provisions of this Schedule, on an
application for a consent order for financial relief, the court may, unless it
has reason to think that there are other circumstances into which it ought to
inquire, make an order in the terms agreed on the basis only of such
information supplied with the application as is required by rules of court.
20
      (2)
Sub-paragraph (1) applies to an application for a consent order varying or
discharging an order for financial relief as it applies to an application for an
order for financial relief.
      (3)
In this paragraph—
“consent order”, in relation to an application for an order, means an
25
order in the terms applied for to which the respondent agrees;
“order for financial relief” means an order under any of Parts 1, 2, 3, 4
and 8.
Meaning of “maintenance agreement” and “financial arrangements”
59    (1)
In this Part “maintenance agreement” means any agreement in writing
30
between the civil partners in a civil partnership which—
(a)
is made during the continuance or after the dissolution or annulment
of the civil partnership and contains financial arrangements, or
(b)
is a separation agreement which contains no financial arrangements
but is made in a case where no other agreement in writing between
35
the civil partners contains financial arrangements.
      (2)
In this Part “financial arrangements” means provisions governing the rights
and liabilities towards one another when living separately of the civil
partners in a civil partnership (including a civil partnership which has been
dissolved or annulled) in respect of—
40
(a)
the making or securing of payments, or
(b)
the disposition or use of any property,

including such rights and liabilities with respect to the maintenance or
education of a child (whether or not a child of the family).
      (3)
“Education” includes training.
45

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 12 — Consent orders and maintenance agreements
171

Validity of maintenance agreements
60
If a maintenance agreement includes a provision purporting to restrict any
right to apply to a court for an order containing financial arrangements—
(a)
that provision is void, but
(b)
any other financial arrangements contained in the agreement—
5
(i)
are not void or unenforceable as a result, and
(ii)
unless void or unenforceable for any other reason, are
(subject to paragraphs 61 and 65) binding on the parties to the
agreement.
Alteration of agreements by court during lives of parties
10
61    (1)
Either party to a maintenance agreement may apply to the court or, subject
to sub-paragraph (6), to a magistrates’ court for an order under this
paragraph if—
(a)
the maintenance agreement is for the time being subsisting, and
(b)
each of the parties to the agreement is for the time being domiciled
15
or resident in England and Wales.
      (2)
The court may make an order under this paragraph if it is satisfied that—
(a)
because of a change in the circumstances in the light of which—
(i)
any financial arrangements contained in the agreement were
made, or
20
(ii)
financial arrangements were omitted from it,

the agreement should be altered so as to make different financial
arrangements or so as to contain financial arrangements, or
(b)
that the agreement does not contain proper financial arrangements
with respect to any child of the family.
25
      (3)
In sub-paragraph (2)(a) the reference to a change in the circumstances
includes a change foreseen by the parties when making the agreement.
      (4)
An order under this paragraph may make such alterations in the
agreement—
(a)
by varying or revoking any financial arrangements contained in it, or
30
(b)
by inserting in it financial arrangements for the benefit of one of the
parties to the agreement or of a child of the family,

as appear to the court to be just having regard to all the circumstances,
including, if relevant, the matters mentioned in paragraph 22(3).
      (5)
The effect of the order is that the agreement is to be treated as if any
35
alteration made by the order had been made by agreement between the
partners and for valuable consideration.
      (6)
The power to make an order under this paragraph is subject to paragraphs
62 and 63.
Restrictions on applications to and orders by magistrates’ courts under paragraph 61
40
62    (1)
A magistrates’ court must not entertain an application under paragraph
61(1) unless—
(a)
both the parties to the agreement are resident in England and Wales,
and

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in the High Court or a county court etc.
Part 12 — Consent orders and maintenance agreements
172

(b)
the court acts in, or is authorised by the Lord Chancellor to act for, a
local justice area in which at least one of the parties is resident.
      (2)
A magistrates’ court must not make any order on such an application other
than—
(a)
if the agreement includes no provision for periodical payments by
5
either of the parties, an order inserting provision for the making by
one of the parties of periodical payments for the maintenance of—
(i)
the other party, or
(ii)
any child of the family;
(b)
if the agreement includes provision for the making by one of the
10
parties of periodical payments, an order increasing or reducing the
rate of, or terminating, any of those payments.
Provisions relating to periodical and secured periodical payments: duration
63    (1)
If a court decides to make an order under paragraph 61 altering an
agreement—
15
(a)
by inserting provision for the making or securing by one of the
parties to the agreement of periodical payments for the maintenance
of the other party, or
(b)
by increasing the rate of the periodical payments which the
agreement provides shall be made by one of the parties for the
20
maintenance of the other,

it may specify such term as it thinks fit as the term for which the payments
or, as the case may be, the additional payments attributable to the increase
are to be made under the altered agreement, except that the term must not
extend beyond the limits in sub-paragraphs (2) and (3).
25
      (2)
The limits if the payments are not to be secured are—
(a)
the death of either of the parties to the agreement, or
(b)
the formation of a subsequent civil partnership or marriage by the
party to whom the payments are to be made.
      (3)
The limits if the payments are to be secured are—
30
(a)
the death of the party to whom the payments are to be made, or
(b)
the formation of a subsequent civil partnership or marriage by that
party.
      (4)
Sub-paragraph (5) applies if a court decides to make an order under
paragraph 61 altering an agreement by—
35
(a)
inserting provision for the making or securing by one of the parties
to the agreement of periodical payments for the maintenance of a
child of the family, or
(b)
increasing the rate of the periodical payments which the agreement
provides shall be made or secured by one of the parties for the
40
maintenance of such a child.
      (5)
The court, in deciding the term for which under the agreement as altered by
the order—
(a)
the payments are to be made or secured for the benefit of the child, or
(b)
the additional payments attributable to the increase are to be made
45
or secured for the benefit of the child,