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 4 — Interim orders
184

      (2)
In relation to an interim order in respect of an application for an order under
Part 2 by the civil partner who has agreed to make the financial provision
specified in the application, sub-paragraph (1) applies as if—
(a)
the reference to the respondent were a reference to the applicant, and
(b)
the references to the applicant were references to the respondent.
5
When interim order may start
22    (1)
An interim order may provide for payments to be made from such date as
the court may specify, except that the date must not be earlier than the date
of the making of the application for an order under Part 1, 2 or 3.
      (2)
Sub-paragraph (1) is subject to paragraph 27(7) and (8).
10
Payments which can be treated as having been paid on account
23    (1)
If an interim order made by the High Court on an appeal made by virtue of
paragraph 46 provides for payments to be made from a date earlier than the
date of the making of the order, the interim order may provide that
payments made by the respondent under an order made by a magistrates’
15
court are to be treated, to such extent and in such manner as may be
provided by the interim order, as having been paid on account of any
payment provided for by the interim order.
      (2)
In relation to an interim order in respect of an application for an order under
Part 2 by the civil partner who has agreed to make the financial provision
20
specified in the application, sub-paragraph (1) applies as if the reference to
the respondent were a reference to the applicant.
When interim order ceases to have effect
24    (1)
Subject to sub-paragraphs (2) and (3), an interim order made on an
application for an order under Part 1, 2 or 3 ceases to have effect on the
25
earliest of the following dates—
(a)
the date, if any, specified for the purpose in the interim order;
(b)
the date on which the period of 3 months beginning with the date of
the making of the interim order ends;
(c)
the date on which a magistrates’ court either makes a final order on,
30
or dismisses, the application.
      (2)
If an interim order made under this Part would, but for this sub-paragraph,
cease to have effect under sub-paragraph (1)(a) or (b)—
(a)
the magistrates’ court which made the order, or
(b)
in the case of an interim order made by the High Court, the
35
magistrates’ court by which the application for an order under Part
1, 2 or 3 is to be reheard,

may by order provide that the interim order is to continue in force for a
further period.
      (3)
An order continued in force under sub-paragraph (2) ceases to have effect on
40
the earliest of the following dates—
(a)
the date, if any, specified for the purpose in the order continuing it;
(b)
the date on which ends the period of 3 months beginning with—
(i)
the date of the making of the order continuing it, or

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 5 — Commencement and duration of orders under Parts 1, 2 and 3
185

(ii)
if more than one such order has been made with respect to
the application, the date of the making of the first such order;
(c)
the date on which the court either makes a final order on, or
dismisses, the application.
Supplementary
5
25    (1)
An interim order made by the High Court under paragraph 20(3) on
ordering an application to be reheard by a magistrates’ court is to be treated
for the purposes of—
(a)
its enforcement, and
(b)
Part 6 (variation etc. of orders),
10

as if it were an order of that magistrates’ court (and not of the High Court).
      (2)
No appeal lies from the making of or refusal to make, the variation of or
refusal to vary, or the revocation of or refusal to revoke, an interim order.
Part 5
Commencement and duration of orders under Parts 1, 2 and 3
15
Duration of periodical payments order for a civil partner
26    (1)
The court may specify in a periodical payments order made under
paragraph 2(1)(a) or Part 3 in favour of a civil partner such term as it thinks
fit, except that the term must not—
(a)
begin before the date of the making of the application for the order,
20
or
(b)
extend beyond the death of either of the civil partners.
      (2)
If—
(a)
a periodical payments order is made under paragraph 2(1)(a) or Part
3 in favour of one of the civil partners, and
25
(b)
the civil partnership is subsequently dissolved or annulled but the
order continues in force,

the periodical payments 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 the order on the
30
date of that event.
Age limit on making orders for financial provision for children and duration of such orders
27    (1)
Subject to sub-paragraph (5), no order is to be made under paragraph 2(1)(c)
or (d) or Part 3 in favour of a child who has reached 18.
      (2)
The term to be specified in a periodical payments order made under
35
paragraph 2(1)(c) or Part 3 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
(b)
a date ascertained in accordance with sub-paragraph (7) or (8).
      (3)
The term to be specified in such an order—
40
(a)
must not in the first instance extend beyond the date of the birthday
of the child next following his reaching the upper limit of the
compulsory school age unless the court considers that in the

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 5 — Commencement and duration of orders under Parts 1, 2 and 3
186

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
5
(c. 56) (which applies to determine for the purposes of any enactment
whether a person is of compulsory school age).
      (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 such an order were made without
10
complying with either or both of those provisions, would be—
(i)
receiving instruction at an educational establishment, or
(ii)
undergoing training for a trade, profession or vocation,

whether or not also the child is, will be or would be, in gainful
employment, or
15
(b)
there are special circumstances which justify the making of the order
without complying with either or both of sub-paragraphs (1) and
(3)(b).
      (6)
Any order made under paragraph 2(1)(c) or Part 3 in favour of a child,
regardless of anything in the order, ceases to have effect on the death of the
20
person liable to make payments under the order.
      (7)
If—
(a)
a maintenance calculation (“current calculation”) is in force with
respect to a child, and
(b)
an application is made for an order under paragraph 2(1)(c) or Part
25
3—
(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,
30

the term to be specified in any such order made on that application may be
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
35
successive maintenance calculations have been continuously in force
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
40
provision of the 1991 Act, and
(b)
an application is made, before the end of 6 months beginning with
the relevant date, for a periodical payments order under paragraph
2(1)(c) or Part 3 in favour of a child with respect to whom that
maintenance calculation was in force immediately before it ceased to
45
have effect,

the term to be specified in any such order, or in any interim order under Part
4, made on that application, may begin with the date on which that
maintenance calculation ceased to have effect or any later date.

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 5 — Commencement and duration of orders under Parts 1, 2 and 3
187

     (10)
“The relevant date” means the date on which the maintenance calculation
ceased to have effect.
     (11)
In this Schedule “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.
5
Application of paragraphs 26 and 27 to Part 2 orders
28    (1)
Subject to sub-paragraph (3), paragraph 26 applies in relation to an order
under Part 2 which requires periodical payments to be made to a civil
partner for his own benefit as it applies in relation to an order under
paragraph 2(1)(a).
10
      (2)
Subject to sub-paragraph (3), paragraph 27 applies in relation to an order
under Part 2 for the making of financial provision in respect of a child of the
family as it applies in relation to an order under paragraph 2(1)(c) or (d).
      (3)
If—
(a)
the court makes an order under Part 2 which contains provision for
15
the making of periodical payments, and
(b)
by virtue of paragraph 14, an application for an order under Part 1 is
treated as if it had been withdrawn,

the term which may be specified under Part 2 as the term for which the
payments are to be made may begin with the date of the making of the
20
application for the order under Part 1 or any later date.
Effect on certain orders of parties living together
29    (1)
Sub-paragraph (2) applies if periodical payments are required to be made to
a civil partner (whether for the civil partner’s own benefit or for the benefit
of a child of the family)—
25
(a)
by an order made under Part 1 or 2, or
(b)
by an interim order made under Part 4 (otherwise than on an
application under Part 3).
      (2)
The order is enforceable even though—
(a)
the civil partners are living with each other at the date of the making
30
of the order, or
(b)
if they are not living with each other at that date, they subsequently
resume living with each other;

but the order ceases to have effect if after that date the parties continue to live
with each other, or resume living with each other, for a continuous period
35
exceeding 6 months.
      (3)
Sub-paragraph (4) applies if—
(a)
an order is made under Part 1 or 2 which requires periodical
payments to be made to a child of the family, or
(b)
an interim order is made under Part 4 (otherwise than on an
40
application under Part 3) which requires periodical payments to be
made to a child of the family.
      (4)
Unless the court otherwise directs, the order continues to have effect and is
enforceable even if—
(a)
the civil partners are living with each other at the date of the making
45
of the order, or

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 6 — Variation etc. of orders
188

(b)
if they are not living with each other at that date, they subsequently
resume living with each other.
      (5)
An order made under Part 3, and any interim order made on an application
for an order under that Part, ceases to have effect if the civil partners resume
living with each other.
5
      (6)
If an order made under this Schedule ceases to have effect under—
(a)
sub-paragraph (2) or (5), or
(b)
a direction given under sub-paragraph (4),

a magistrates’ court may, on an application made by either civil partner,
make an order declaring that the order ceased to have effect from such date
10
as the court may specify.
Part 6
Variation etc. of orders
Power to vary, revoke, suspend or revive order
30    (1)
If a magistrates’ court has made an order for the making of periodical
15
payments under Part 1, 2 or 3, the court may, on an application made under
this Part—
(a)
vary or revoke the order,
(b)
suspend any provision of it temporarily, or
(c)
revive any provision so suspended.
20
      (2)
If a magistrates’ court has made an interim order under Part 4, the court
may, on an application made under this Part—
(a)
vary or revoke the order,
(b)
suspend any provision of it temporarily, or
(c)
revive any provision so suspended,
25

except that it may not by virtue of this sub-paragraph extend the period for
which the order is in force.
Powers to order lump sum on variation
31    (1)
If a magistrates’ court has made an order under paragraph 2(1)(a) or (c) for
the making of periodical payments, the court may, on an application made
30
under this Part, make an order for the payment of a lump sum under
paragraph 2(1)(b) or (d).
      (2)
If a magistrates’ court has made an order under Part 2 for the making of
periodical payments by a civil partner the court may, on an application
made under this Part, make an order for the payment of a lump sum by that
35
civil partner—
(a)
to the other civil partner, or
(b)
to a child of the family or to that other civil partner for the benefit of
that child.
      (3)
Where the court has power by virtue of this paragraph to make an order for
40
the payment of a lump sum—
(a)
the amount of the lump sum must not exceed the maximum amount
that may at that time be required to be paid under Part 1, but

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 6 — Variation etc. of orders
189

(b)
the court may make an order for the payment of a lump sum not
exceeding that amount even if the person required to pay it was
required to pay a lump sum by a previous order under this Schedule.
      (4)
Where—
(a)
the court has power by virtue of this paragraph to make an order for
5
the payment of a lump sum, and
(b)
the respondent or the applicant (as the case may be) has agreed to
pay a lump sum of an amount exceeding the maximum amount that
may at that time be required to be paid under Part 1,

the court may, regardless of sub-paragraph (3), make an order for the
10
payment of a lump sum of that amount.
Power to specify when order as varied is to take effect
32
An order made under this Part which varies an order for the making of
periodical payments may provide that the payments as so varied are to be
made from such date as the court may specify, except that, subject to
15
paragraph 33, the date must not be earlier than the date of the making of the
application under this Part.
33    (1)
If—
(a)
there is in force an order (“the order”)—
(i)
under paragraph 2(1)(c),
20
(ii)
under Part 2 making provision of a kind set out in paragraph
10(1)(c) (regardless of whether it makes provision of any
other kind mentioned in paragraph 10(1)(c)),
(iii)
under paragraph 16(1)(b), or
(iv)
which is an interim order under Part 4 under which the
25
payments are to be made to a child or to the applicant for the
benefit of a child,
(b)
the order requires payments specified in it to be made to or for the
benefit of more than one child without apportioning those payments
between them,
30
(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
(d)
an application is made, before the end of 6 months beginning with
the date on which the calculation was made, for the variation or
35
revocation of the order,

the court may, in exercise of its powers under this Part to vary or revoke the
order, direct that the variation or revocation is to take effect from the date on
which the calculation took effect or any later date.
      (2)
If—
40
(a)
an order (“the child order”) of a kind prescribed for the purposes of
section 10(1) of the Child Support Act 1991 is affected by a
maintenance calculation,
(b)
on the date on which the child order became so affected there was in
force an order (“the civil partner’s order”)—
45
(i)
under paragraph 2(1)(a),
(ii)
under Part 2 making provision of a kind set out in paragraph
10(1)(a) (regardless of whether it makes provision of any
other kind mentioned in paragraph 10(1)(a)),

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 6 — Variation etc. of orders
190

(iii)
under paragraph 16(1)(a), or
(iv)
which is an interim order under Part 4 under which the
payments are to be made to the applicant (otherwise than for
the benefit of a child), and
(c)
an application is made, before the end of 6 months beginning with
5
the date on which the maintenance calculation was made, for the
civil partner’s order to be varied or revoked,

the court may, in exercise of its powers under this Part to vary or revoke the
civil partner’s order, direct that the variation or revocation is to take effect
from the date on which the child order became so affected or any later date.
10
      (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.
Matters to which court is to have regard in exercising powers under this Part
34    (1)
In exercising the powers conferred by this Part the court must, so far as it
appears to the court just to do so, give effect to any agreement which has
15
been reached between the civil partners in relation to the application.
      (2)
If—
(a)
there is no such agreement, or
(b)
if the court decides not to give effect to the agreement,

the court must have regard to all the circumstances of the case, giving first
20
consideration to the welfare while under 18 of any child of the family who
has not reached 18.
      (3)
Those circumstances include any change in any of the matters—
(a)
to which the court was required to have regard when making the
order to which the application relates, or
25
(b)
in the case of an application for the variation or revocation of an
order made under Part 2 or on an appeal made by virtue of
paragraph 46, to which the court would have been required to have
regard if that order had been made under Part 1.
Variation of orders for periodical payments: further provisions
30
35    (1)
The power of the court under paragraphs 30 to 34 to vary an order for the
making of periodical payments includes power, if the court is satisfied that
payment has not been made in accordance with the order, to exercise one of
its powers under section 59(3)(a) to (d) of the Magistrates’ Courts Act 1980
(c. 43).
35
      (2)
Sub-paragraph (1) is subject to paragraph 37.
36    (1)
If—
(a)
a magistrates’ court has made an order under this Schedule for the
making of periodical payments, and
(b)
payments under the order are required to be made by any method of
40
payment falling within section 59(6) of the 1980 Act (standing order,
etc.),

an application may be made under this sub-paragraph to the court for the
order to be varied as mentioned in sub-paragraph (2).
      (2)
Subject to sub-paragraph (4), if an application is made under sub-paragraph
45
(1), a justices’ clerk, after—