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 6 — Variation etc. of orders
191

(a)
giving written notice (by post or otherwise) of the application to the
respondent, and
(b)
allowing the respondent, within the period of 14 days beginning
with the date of the giving of that notice, an opportunity to make
written representations,
5

may vary the order to provide that payments under the order are to be made
to the designated officer for the court.
      (3)
The clerk may proceed with an application under sub-paragraph (1) even if
the respondent has not received written notice of the application.
      (4)
If an application has been made under sub-paragraph (1), the clerk may, if
10
he considers it inappropriate to exercise his power under sub-paragraph (2),
refer the matter to the court which, subject to paragraph 37, may vary the
order by exercising one of its powers under section 59(3)(a) to (d) of the 1980
Act.
37    (1)
Before varying the order by exercising one of its powers under section
15
59(3)(a) to (d) of the 1980 Act, the court must have regard to any
representations made by the parties to the application.
      (2)
If the court does not propose to exercise its power under section 59(3)(c), (cc)
or (d) of the 1980 Act, the court must, unless upon representations expressly
made in that behalf by the person to whom payments under the order are
20
required to be made it is satisfied that it is undesirable to do so, exercise its
power under section 59(3)(b).
38    (1)
Section 59(4) of the 1980 Act (power of court to order that account be
opened) applies for the purposes of paragraphs 35 and 36(4) as it applies for
the purposes of section 59.
25
      (2)
None of the powers of the court, or of a justices’ clerk, conferred by
paragraphs 35 to 37 and sub-paragraph (1) is exercisable in relation to an
order under this Schedule for the making of periodical payments which is
not a qualifying maintenance order (within the meaning of section 59 of the
1980 Act).
30
Persons who may apply under this Part
39
An application under paragraph 30, 31 or 36 may be made—
(a)
if it is for the variation or revocation of an order under Part 1, 2, 3 or
4 for periodical payments, by either civil partner, and
(b)
if it is for the variation of an order under paragraph 2(1)(c) or Part 2
35
or 3 for periodical payments to or in respect of a child, also by the
child himself, if he has reached 16.
Revival of orders for periodical payments
40    (1)
If an order made by a magistrates’ court under this Schedule for the making
of periodical payments to or in respect of a child (other than an interim
40
order) 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 he
reaches 18,

the child may apply to the court which made the order for an order for its
45
revival.
      (2)
If on such an application it appears to the court that—

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 7 — Arrears and repayments
192

(a)
the child is, will be or (if an order were made under this sub-
paragraph) would be receiving instruction at an educational
establishment or undergoing training for a trade, profession or
vocation, whether or not while in gainful employment, or
(b)
there are special circumstances which justify the making of an order
5
under this sub-paragraph,

the court may by order revive the order from such date as the court may
specify, not being earlier than the date of the making of the application.
      (3)
Any order revived under this paragraph may be varied or revoked under
paragraphs 30 to 34 in the same way as it could have been varied or revoked
10
had it continued in being.
Variation of instalments of lump sum
41
If in the exercise of its powers under section 75 of the 1980 Act a magistrates’
court orders that a lump sum required to be paid under this Schedule is to
be paid by instalments, the court, on an application made by either the
15
person liable to pay or the person entitled to receive that sum, may vary that
order by varying—
(a)
the number of instalments payable,
(b)
the amount of any instalment payable, and
(c)
the date on which any instalment becomes payable.
20
Supplementary provisions with respect to variation and revocation of orders
42
None of the following powers apply in relation to an order made under this
Schedule—
(a)
the powers of a magistrates’ court to revoke, revive or vary an order
for the periodical payment of money and the power of a justices’
25
clerk to vary such an order under section 60 of the 1980 Act;
(b)
the power of a magistrates’ court to suspend or rescind certain other
orders under section 63(2) of the 1980 Act.
Part 7
Arrears and repayments
30
Enforcement etc. of orders for payment of money
43
Section 32 of the Domestic Proceedings and Magistrates’ Courts Act 1978
(c. 22) applies in relation to orders under this Schedule as it applies in
relation to orders under Part 1 of that Act.
Orders for repayment after cessation of order because of subsequent civil partnership etc.
35
44    (1)
Sub-paragraphs (3) and (4) apply if—
(a)
an order made under paragraph 2(1)(a) or Part 2 or 3 has, under
paragraph 26(2), ceased to have effect because of the formation of a
subsequent civil partnership or marriage by the party (“R”) in whose
favour it was made, and
40
(b)
the person liable to make payments under the order (“P”) made
payments in accordance with it in respect of a relevant period in the
mistaken belief that the order was still subsisting.

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 7 — Arrears and repayments
193

      (2)
“Relevant period” means a period after the date of the formation of the
subsequent civil partnership or marriage.
      (3)
No proceedings in respect of a cause of action arising out of the
circumstances mentioned in sub-paragraph (1)(a) and (b) is maintainable by
P (or P’s personal representatives) against R (or R’s personal
5
representatives).
      (4)
But on an application made 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
amount of the payments made in respect of the relevant period, or
10
(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
(ii)
dismiss the application.
15
      (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—
(a)
may be made in proceedings in the High Court or a county court for
20
leave to enforce, or the enforcement of, the payment of arrears under
an order made under paragraph 2(1)(a) or Part 2 or 3, 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
the High Court or a county court, as the circumstances require.
25
      (7)
The jurisdiction conferred on a county court by this paragraph is exercisable
by a county court even though, because of the amount claimed in an
application under this paragraph, the jurisdiction would not but for this sub-
paragraph be exercisable by a county court.
      (8)
Subject to sub-paragraph (9)—
30
(a)
the designated officer for a magistrates’ court to whom any
payments under an order made under paragraph 2(1)(a), or Part 2 or
3, are required to be made is not liable for any act done by him in
pursuance of the order after the date on which that order ceased to
have effect because of the formation of a subsequent civil partnership
35
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 the order under paragraph 2(1)(a), or Part 2
or 3, is not liable for any act done by him after that date in accordance
with any enactment or rule of court specifying how payments made
40
to him in compliance with the attachment of earnings order are to be
dealt with.
      (9)
Sub-paragraph (8) applies if (but only if) the act—
(a)
was one which he would have been under a duty to do had the order
under paragraph 2(1)(a) or Part 2 or 3 not ceased to have effect, and
45
(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 order,
(ii)
the person liable to make payments under it, or
(iii)
the personal representatives of either of them.
50

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in magistrates’ courts etc.
Part 8 — Supplementary
194

     (10)
In this paragraph “collecting officer”, in relation to an attachment of
earnings order, means—
(a)
the officer of the High Court, or
(b)
the officer designated by the Lord Chancellor,

to whom a person makes payments in compliance with the order.
5
Part 8
Supplementary
Restrictions on making of orders under this Schedule: welfare of children
45
If—
(a)
an application is made by a civil partner for an order under Part 1, 2
10
or 3, and
(b)
there is a child of the family who is under 18,

the court must not dismiss or make a final order on the application until it
has decided whether to exercise any of its powers under the Children Act
1989 (c. 41) with respect to the child.
15
Constitution of courts, powers of High Court and county court in relation to orders and appeals
46
The following provisions of the Domestic Proceedings and Magistrates’
Courts Act 1978 (c. 22) apply in relation to an order under this Schedule
relating to a civil partnership as they apply in relation to an order under Part
1 of that Act relating to a marriage—
20
(a)
section 28 (powers of the High Court and a county court in relation
to certain orders),
(b)
section 29 (appeals), and
(c)
section 31 (constitution of courts).
Provisions as to jurisdiction and procedure
25
47    (1)
Subject to section 2 of the Family Law Act 1986 (c. 55) and section 70 of the
Magistrates’ Courts Act 1980 (c. 43) and any determination of the Lord
Chancellor, a magistrates’ court has jurisdiction to hear an application for an
order under this Schedule if it acts in, or is authorised by the Lord Chancellor
to act for, a local justice area in which either the applicant or the respondent
30
ordinarily resides at the date of the making of the application.
      (2)
Any jurisdiction conferred on a magistrates’ court by this Schedule is
exercisable even if any party to the proceedings is not domiciled in England
and Wales.
Meaning of “child of the family”
35
48
In this Schedule “child of the family”, in relation to two people who are civil
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
40
by both the civil partners as a child of their family.