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 7 — Financial relief in magistrates’ courts etc.
Part 1 — Failure to maintain etc.: financial provision
177

Schedule 7
Section 71(3)

Financial relief in magistrates’ courts etc.
Part 1
Failure to maintain etc.: financial provision
Circumstances in which orders under this Part may be made
5
1     (1)
On an application to it by one of the civil partners, a magistrates’ court may
make any one or more of the orders set out in paragraph 2 if it is satisfied
that the other civil partner—
(a)
has failed to provide reasonable maintenance for the applicant,
(b)
has failed to provide, or to make a proper contribution towards,
10
reasonable maintenance for any child of the family,
(c)
has behaved in such a way that the applicant cannot reasonably be
expected to live with the respondent, or
(d)
has deserted the applicant.
      (2)
The power of the court under sub-paragraph (1) is subject to the following
15
provisions of this Schedule.
The orders: periodical and secured periodical payments and lump sums
2     (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;
20
(b)
an order that the respondent must pay to the applicant such lump
sum as may be specified;
(c)
an order that the respondent must make—
(i)
to the applicant for the benefit of a child of the family to
whom the application relates, or
25
(ii)
to a child of the family to whom the application relates;

such periodical payments for such term as may be specified;
(d)
an order that the respondent must pay such lump sum as may be
specified—
(i)
to the applicant for the benefit of a child of the family to
30
whom the application relates, or
(ii)
to such a child of the family to whom the application relates.
      (2)
The amount of a lump sum required to be paid under sub-paragraph (1)(b)
or (d) must not exceed—
(a)
£1,000, or
35
(b)
such larger amount as the Lord Chancellor may from time to time by
order fix for the purposes of this sub-paragraph.
      (3)
The power to make an order under sub-paragraph (2) is exercisable by
statutory instrument which is subject to annulment in pursuance of a
resolution of either House of Parliament.
40
      (4)
“Specified” means specified in the order.

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 1 — Failure to maintain etc.: financial provision
178

Particular provision that may be made by lump sum orders
3     (1)
An order under this Part for the payment of a lump sum may be made for
the purpose of enabling any liability or expenses reasonably incurred in
maintaining the applicant or any child of the family to whom the application
relates before the making of the order to be met.
5
      (2)
Sub-paragraph (1) does not restrict the power to make the orders set out in
paragraph 2(1)(b) and (d).
Matters to which court is to have regard in exercising its powers under this Part—general
4
If an application is made for an order under this Part, the court, in
deciding—
10
(a)
whether to exercise its powers under this Part, and
(b)
if so, in what way,

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.
15
Particular matters to be taken into account when exercising powers in relation to civil partners
5     (1)
This paragraph applies in relation to the exercise by the court of its power to
make an order by virtue of paragraph 2(1)(a) or (b).
      (2)
The court must in particular have regard to—
(a)
the income, earning capacity, property and other financial resources
20
which each civil partner—
(i)
has, or
(ii)
is likely to have in the foreseeable future,

including, in the case of earning capacity, any increase in that
capacity which it would in the opinion of the court be reasonable to
25
expect a civil partner in the civil partnership to take steps to acquire;
(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 civil partners before the
occurrence of the conduct which is alleged as the ground of the
30
application;
(d)
the age of each civil partner and the duration of the civil partnership;
(e)
any physical or mental disability of either civil partner;
(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
35
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
in the opinion of the court be inequitable to disregard it.
Particular matters to be taken into account when exercising powers in relation to children
6     (1)
This paragraph applies in relation to the exercise by the court of its power to
40
make an order by virtue of paragraph 2(1)(c) or (d).
      (2)
The court must in particular have regard to—
(a)
the financial needs of the child;

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 1 — Failure to maintain etc.: financial provision
179

(b)
the income, earning capacity (if any), property and other financial
resources of the child;
(c)
any physical or mental disability of the child;
(d)
the standard of living enjoyed by the family before the occurrence of
the conduct which is alleged as the ground of the application;
5
(e)
the way in which the child was being and in which the civil partners
expected the child to be educated or trained;
(f)
the considerations mentioned in relation to the civil partners in
paragraph 5(2)(a) and (b).
      (3)
In relation to the exercise of its power to make an order in favour of a child
10
of the family who is not the respondent’s child, the court must also have
regard to—
(a)
whether the respondent has assumed any responsibility for the
child’s maintenance;
(b)
if so, the extent to which, and the basis on which, the respondent
15
assumed that responsibility and the length of time during which the
respondent discharged that responsibility;
(c)
whether in assuming and discharging that responsibility the
respondent did so knowing that the child was not the respondent’s
child;
20
(d)
the liability of any other person to maintain the child.
Reconciliation
7     (1)
If an application is made for an order under this Part—
(a)
the court, before deciding whether to exercise its powers under this
Part, must consider whether there is any possibility of reconciliation
25
between the civil partners, and
(b)
if at any stage of the proceedings on that application it appears to the
court that there is a reasonable possibility of such a reconciliation, the
court may adjourn the proceedings for such period as it thinks fit to
enable attempts to be made to effect a reconciliation.
30
      (2)
If the court adjourns any proceedings under sub-paragraph (1), it may
request—
(a)
an officer of the Children and Family Court Advisory and Support
Service, or
(b)
any other person,
35

to attempt to effect a reconciliation between the civil partners.
      (3)
If any such request is made, the officer or other person—
(a)
must report in writing to the court whether the attempt has been
successful, but
(b)
must not include in the report any other information.
40
Refusal of order in case more suitable for High Court
8     (1)
If on hearing an application for an order under this Part a magistrates’ court
is of the opinion that any of the matters in question between the civil
partners would be more conveniently dealt with by the High Court, the
magistrates’ court must refuse to make any order on the application.
45
      (2)
No appeal lies from a refusal under sub-paragraph (1).

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 2 — Orders for agreed financial provision
180

      (3)
But, in any proceedings in the High Court relating to or comprising the same
subject matter as an application in respect of which a magistrates’ court has
refused to make any order, the High Court may order the application to be
reheard and determined by a magistrates’ court acting for the same local
justice area as the court which refused to make any order.
5
Part 2
Orders for agreed financial provision
Orders for payments which have been agreed by the parties
9     (1)
Either civil partner may apply to a magistrates’ court for an order under this
Part on the ground that that civil partner or the other civil partner has agreed
10
to make such financial provision as may be specified in the application.
      (2)
On such an application, the court may order that the applicant or the
respondent (as the case may be) is to make the financial provision specified
in the application, if—
(a)
it is satisfied that the applicant or the respondent (as the case may be)
15
has agreed to make that provision, and
(b)
it has no reason to think that it would be contrary to the interests of
justice to do so.
      (3)
Sub-paragraph (2) is subject to paragraph 12.
Meaning of “financial provision” and of references to specified financial provision
20
10    (1)
In this Part “financial provision” means any one or more of the following—
(a)
the making of periodical payments by one civil partner to the other;
(b)
the payment of a lump sum by one civil partner to the other;
(c)
the making of periodical payments by one civil partner to a child of
the family or to the other civil partner for the benefit of such a child;
25
(d)
the payment by one party of a lump sum to a child of the family or
to the other civil partner for the benefit of such a child.
      (2)
Any reference in this Part to the financial provision specified in an
application or specified by the court is a reference—
(a)
to the type of provision specified in the application or by the court,
30
(b)
to the amount so specified as the amount of any payment to be made
under the application or order, and
(c)
in the case of periodical payments, to the term so specified as the
term for which the payments are to be made.
Evidence to be produced where respondent not present etc.
35
11    (1)
This paragraph applies if—
(a)
the respondent is not present, or
(b)
is not represented by counsel or a solicitor,

at the hearing of an application for an order under this Part.
      (2)
The court must not make an order under this Part unless there is produced
40
to it such evidence as may be prescribed by rules of court of—
(a)
the consent of the respondent to the making of the order,
(b)
the financial resources of the respondent, and

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 2 — Orders for agreed financial provision
181

(c)
if the financial provision specified in the application includes or
consists of provision in respect of a child of the family to be made by
the applicant to the respondent for the benefit of the child or to the
child, the financial resources of the child.
Exercise of powers in relation to children
5
12    (1)
This paragraph applies if the financial provision specified in an application
under this Part—
(a)
includes, or
(b)
consists of,

provision in respect of a child of the family.
10
      (2)
The court must not make an order under this Part unless it considers that the
provision which the applicant or the respondent (as the case may be) has
agreed to make in respect of the child provides for, or makes a proper
contribution towards, the financial needs of the child.
Power to make alternative orders
15
13    (1)
This paragraph applies if on an application under this Part the court
decides—
(a)
that it would be contrary to the interests of justice to make an order
for the making of the financial provision specified in the application,
or
20
(b)
that any financial provision which the applicant or the respondent
(as the case may be) has agreed to make in respect of a child of the
family does not provide for, or make a proper contribution towards,
the financial needs of that child.
      (2)
If the court is of the opinion—
25
(a)
that it would not be contrary to the interests of justice to make an
order for the making of some other financial provision specified by
the court, and
(b)
that, in so far as that other financial provision contains any provision
for a child of the family, it provides for, or makes a proper
30
contribution towards, the financial needs of that child,

then, if both the civil partners agree, the court may order that the applicant
or the respondent (as the case may be) is to make that other financial
provision.
Relationship between this Part and Part 1
35
14    (1)
A civil partner who has applied for an order under Part 1 is not precluded at
any time before the determination of the application from applying for an
order under this Part.
      (2)
If—
(a)
an order is made under this Part on the application of either civil
40
partner, and
(b)
either of them has also made an application for a Part 1 order,

the application for the Part 1 order is to be treated as if it had been
withdrawn.

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 3 — Orders of court where civil partners living apart by agreement
182

Part 3
Orders of court where civil partners living apart by agreement
Powers of court where civil partners are living apart by agreement
15    (1)
If—
(a)
the civil partners have been living apart for a continuous period
5
exceeding 3 months, neither civil partner having deserted the other,
and
(b)
one of the civil partners has been making periodical payments for the
benefit of the other civil partner or of a child of the family,

the other civil partner may apply to a magistrates’ court for an order under
10
this Part.
      (2)
An application made under sub-paragraph (1) must specify the total amount
of the payments made by the respondent during the period of 3 months
immediately preceding the date of the making of the application.
      (3)
If on an application for an order under this Part the court is satisfied that the
15
respondent has made the payments specified in the application, the court
may make one or both of the orders set out in paragraph 16.
      (4)
Sub-paragraph (3) is subject to the provisions of this Schedule.
The orders that may be made under this Part
16    (1)
The orders are—
20
(a)
an order that the respondent is to make to the applicant such
periodical payments for such term as may be specified;
(b)
an order that the respondent is to make—
(i)
to the applicant for the benefit of a child of the family to
whom the application relates, or
25
(ii)
to a child of the family to whom the application relates.

such periodical payments for such term as may be specified.
      (2)
“Specified” means specified in the order.
Restrictions on orders under this Part
17
The court in the exercise of its powers under this Part must not require—
30
(a)
the respondent to make payments whose total amount during any
period of 3 months exceeds the total amount paid by him for the
benefit of—
(i)
the applicant, or
(ii)
a child of the family,
35

during the period of 3 months immediately preceding the date of the
making of the application;
(b)
the respondent to make payments to or for the benefit of any person
which exceed in amount the payments which the court considers that
it would have required the respondent to make to or for the benefit
40
of that person on an application under Part 1;
(c)
payments to be made to or for the benefit of a child of the family who
is not the respondent’s child, unless the court considers that it would

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 4 — Interim orders
183

have made an order in favour of that child on an application under
Part 1.
Relationship with powers under Part 1
18    (1)
Sub-paragraph (2) applies if on an application under this Part the court
considers that the orders which it has the power to make under this Part—
5
(a)
would not provide reasonable maintenance for the applicant, or
(b)
if the application relates to a child of the family, would not provide,
or make a proper contribution towards, reasonable maintenance for
that child.
      (2)
The court—
10
(a)
must refuse to make an order under this Part, but
(b)
may treat the application as if it were an application for an order
under Part 1.
Matters to be taken into consideration
19
Paragraphs 4 to 6 apply in relation to an application for an order under this
15
Part as they apply in relation to an application for an order under Part 1,
subject to the modification that for the reference in paragraph 5(2)(c) to the
occurrence of the conduct which is alleged as the ground of the application
substitute a reference to the living apart of the civil partners.
Part 4
20
Interim orders
Circumstances in which interim orders may be made
20    (1)
This paragraph applies if an application has been made for an order under
Part 1, 2 or 3.
      (2)
A magistrates’ court may make an interim order—
25
(a)
at any time before making a final order on, or dismissing, the
application, or
(b)
on refusing (under paragraph 8) to make on order on the application.
      (3)
The High Court may make an interim order on ordering the application to
be reheard by a magistrates’ court (either after the refusal of an order under
30
paragraph 8 or on an appeal made by virtue of paragraph 46).
      (4)
Not more than one interim order may be made with respect to an application
for an order under Part 1, 2 or 3.
      (5)
Sub-paragraph (4) does not affect the power of a court to make an interim
order on a further application under Part 1, 2 or 3.
35
Meaning of interim order
21    (1)
An interim order is an order requiring the respondent to make such
periodical payments as the court thinks reasonable—
(a)
to the applicant,
(b)
to any child of the family who is under 18, or
40
(c)
to the applicant for the benefit of such a child.