|
| |
| |
| must apply paragraph 41(2) to (5) (age limits) as if the order in question were |
| |
a periodical payments or secured periodical payments order in favour of the |
| |
| |
| |
64 | Nothing in paragraphs 60 to 63 affects— |
| 5 |
(a) | any power of a court before which any proceedings between the |
| |
parties to a maintenance agreement are brought under any other |
| |
enactment (including a provision of this Schedule) to make an order |
| |
containing financial arrangements, or |
| |
(b) | any right of either party to apply for such an order in such |
| 10 |
| |
Alteration of agreements by court after death of one party |
| |
65 (1) | This paragraph applies if— |
| |
(a) | a maintenance agreement provides for the continuation of payments |
| |
under the agreement after the death of one of the parties, and |
| 15 |
(b) | that party (“A”) dies domiciled in England and Wales. |
| |
(2) | Subject to sub-paragraph (4), the surviving party or A’s personal |
| |
representatives may apply to the High Court or a county court for an order |
| |
| |
(3) | If a maintenance agreement is altered by a court on an application made |
| 20 |
under sub-paragraph (2), the same consequences follow as if the alteration |
| |
had been made immediately before the death by agreement between the |
| |
parties and for valuable consideration. |
| |
(4) | An application under this paragraph may not, without the leave of the High |
| |
Court or a county court, be made after the end of 6 months from the date on |
| 25 |
which representation in regard to A’s estate is first taken out. |
| |
(5) | A’s personal representatives are not liable for having distributed any part of |
| |
A’s estate after the end of the 6 month period on the ground that they ought |
| |
to have taken into account the possibility that a court might allow an |
| |
application by virtue of this paragraph to be made by the surviving party |
| 30 |
| |
(6) | Sub-paragraph (5) 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 |
| |
| |
(7) | Paragraph 52(6) applies for the purposes of sub-paragraph (4) as it applies |
| 35 |
for the purposes of paragraph 52(3). |
| |
| |
Miscellaneous and supplementary |
| |
Avoidance of transactions intended to prevent or reduce financial relief |
| |
66 (1) | This paragraph applies if proceedings for relief (“financial relief”) are |
| 40 |
brought by one person (“A”) against another (“B”) under Part 1, 2, 4, 7, 8, or |
| |
10 (other than paragraph 52(2)), or paragraph 61. |
| |
| |
| |
|
| |
| |
(2) | If the court is satisfied, on an application by A, that B is, with the intention |
| |
of defeating A’s claim for financial relief, about to— |
| |
(a) | make any disposition, or |
| |
(b) | transfer out of the jurisdiction or otherwise deal with any property, |
| |
| it may make such order as it thinks fit for restraining B from doing so or |
| 5 |
otherwise for protecting the claim. |
| |
(3) | If the court is satisfied, on an application by A, that— |
| |
(a) | B has, with the intention of defeating A’s claim for financial relief, |
| |
made a reviewable disposition, and |
| |
(b) | if the disposition were set aside, financial relief or different financial |
| 10 |
relief would be granted to A, |
| |
| it make an order setting aside the disposition. |
| |
(4) | If the court is satisfied, on an application by A in a case where an order has |
| |
been obtained by A against B under any of the provisions mentioned in sub- |
| |
paragraph (1), that B has, with the intention of defeating A’s claim for |
| 15 |
financial relief, made a reviewable disposition, it may make an order setting |
| |
| |
(5) | An application for the purposes of sub-paragraph (3) must be made in the |
| |
proceedings for the financial relief in question. |
| |
(6) | If the court makes an order under sub-paragraph (3) or (4) setting aside a |
| 20 |
disposition it must give such consequential directions as it thinks fit for |
| |
giving effect to the order (including directions requiring the making of any |
| |
payments or the disposal of any property). |
| |
67 (1) | Any reference in paragraph 66 to defeating A’s claim for financial relief is |
| |
| 25 |
(a) | preventing financial relief from being granted to A, or to A for the |
| |
benefit of a child of the family, |
| |
(b) | reducing the amount of any financial relief which might be so |
| |
| |
(c) | frustrating or impeding the enforcement of any order which might |
| 30 |
be or has been made at A’s instance under any of those provisions. |
| |
(2) | In paragraph 66 and this paragraph “disposition”— |
| |
(a) | does not include any provision contained in a will or codicil, but |
| |
(b) | subject to paragraph (a), includes any conveyance, assurance or gift |
| |
of property of any description (whether made by an instrument or |
| 35 |
| |
(3) | Any disposition made by B (whether before or after the commencement of |
| |
the proceedings for financial relief) is a reviewable disposition for the |
| |
purposes of paragraphs 66(3) and (4) unless it was made— |
| |
(a) | for valuable consideration (other than formation of a civil |
| 40 |
| |
(b) | to a person who, at the time of the disposition, acted in relation to it |
| |
in good faith and without notice of any intention on B’s part to defeat |
| |
A’s claim for financial relief. |
| |
(4) | If an application is made under paragraph 66 with respect to a disposition |
| 45 |
which took place less than 3 years before the date of the application or with |
| |
respect to a disposition or other dealing with property which is about to take |
| |
place and the court is satisfied— |
| |
| |
| |
|
| |
| |
(a) | in a case falling within paragraph 66(2) or (3), that the disposition or |
| |
other dealing would (apart from paragraph 66) have the |
| |
consequence of defeating A’s claim for financial relief, or |
| |
(b) | in a case falling within paragraph 66(4), that the disposition has had |
| |
the consequence of defeating A’s claim for financial relief, |
| 5 |
| it is presumed, unless the contrary is shown, that the person who disposed |
| |
of or is about to dispose of or deal with the property did so or, as the case |
| |
may be, is about to do so, with the intention of defeating A’s claim for |
| |
| |
Direction for settlement of instrument for securing payments or effecting property adjustment |
| 10 |
68 (1) | This paragraph applies if the court decides to make— |
| |
(a) | an order under Part 1 or 8 requiring any payments to be secured, or |
| |
(b) | a property adjustment order. |
| |
(2) | The court may direct that the matter be referred to one of the conveyancing |
| |
counsel of the court for him to settle a proper instrument to be executed by |
| 15 |
| |
(3) | If the order referred to in sub-paragraph (1) is to be made in proceedings for |
| |
a dissolution, nullity or separation order, the court may, if it thinks fit, defer |
| |
the making of the dissolution, nullity or separation order until the |
| |
instrument has been duly executed. |
| 20 |
Settlement, etc., made in compliance with a property adjustment order may be avoided on |
| |
| |
| |
| |
(b) | a transfer of property, |
| 25 |
| had to be made in order to comply with a property adjustment order does |
| |
not prevent the settlement or transfer from being a transaction in respect of |
| |
which an order may be made under section 339 or 340 of the Insolvency Act |
| |
1986 (c. 45) (transfers at an undervalue and preferences). |
| |
Payments, etc., under order made in favour of person suffering from mental disorder |
| 30 |
70 (1) | This paragraph applies if— |
| |
(a) | the court makes an order under this Schedule requiring— |
| |
(i) | payments (including a lump sum payment) to be made, or |
| |
(ii) | property to be transferred, |
| |
| 35 |
(b) | the court is satisfied that the person in whose favour the order is |
| |
made is incapable, because of mental disorder, of managing and |
| |
administering his or her property and affairs. |
| |
(2) | “Mental disorder” has the same meaning as in the Mental Health Act 1983 |
| |
| 40 |
(3) | Subject to any order, direction or authority made or given in relation to that |
| |
person under Part 8 of the 1983 Act, the court may order the payments to be |
| |
made or, as the case may be, the property to be transferred to such persons |
| |
having charge of that person as the court may direct. |
| |
| |
| |
|
| |
| |
Appeals relating to pension sharing orders which have taken effect |
| |
71 (1) | Sub-paragraphs (2) and (3) apply if an appeal against a pension sharing |
| |
order is begun on or after the day on which the order takes effect. |
| |
(2) | If the pension sharing order relates to a person’s rights under a pension |
| |
arrangement, the appeal court may not set aside or vary the order if the |
| 5 |
person responsible for the pension arrangement has acted to his detriment |
| |
in reliance on the order taking effect. |
| |
(3) | If the pension sharing order relates to a person’s shareable state scheme |
| |
rights, the appeal court may not set aside or vary the order if the Secretary |
| |
of State has acted to his detriment in reliance on the taking effect of the order. |
| 10 |
(4) | In determining for the purposes of sub-paragraph (2) or (3) whether a person |
| |
has acted to his detriment in reliance on the taking effect of the order, the |
| |
appeal court may disregard any detriment which in its opinion is |
| |
| |
(5) | Where sub-paragraph (2) or (3) applies, the appeal court may make such |
| 15 |
further orders (including one or more pension sharing orders) as it thinks fit |
| |
for the purpose of putting the parties in the position it considers appropriate. |
| |
(6) | Paragraph 19 only applies to a pension sharing order under this paragraph |
| |
if the decision of the appeal court can itself be the subject of an appeal. |
| |
(7) | In sub-paragraph (2), the reference to the person responsible for the pension |
| 20 |
arrangement is to be read in accordance with paragraph 29(3). |
| |
| |
72 (1) | References in this Schedule to— |
| |
(a) | periodical payments orders, |
| |
(b) | secured periodical payments orders, and |
| 25 |
(c) | orders for the payment of a lump sum, |
| |
| are references to such of the orders that may be made under Parts 1 and 8 |
| |
(other than interim orders) as are relevant in the context of the reference in |
| |
| |
(2) | In this Schedule “child of the family”, in relation to two people who are civil |
| 30 |
partners of each other, means— |
| |
(a) | a child of both of them, and |
| |
(b) | any other child, other than a child placed with them as foster parents |
| |
by a local authority or voluntary organisation, who has been treated |
| |
by both the civil partners as a child of their family. |
| 35 |
(3) | In this Schedule “the court” (except where the context otherwise requires) |
| |
| |
| |
(b) | where a county court has jurisdiction by virtue of Part 5 of the |
| |
Matrimonial and Family Proceedings Act 1984 (c. 42), a county court. |
| 40 |
(4) | References in this Schedule to a subsequent civil partnership include a civil |
| |
partnership which is by law void or voidable. |
| |
(5) | References in this Schedule to a subsequent marriage include a marriage |
| |
which is by law void or voidable. |
| |
| |
| |
|
