House of Commons portcullis
House of Commons
Session 2002 - 03
Internet Publications
Other Bills before Parliament

Civil Partnership Bill [HL]


Civil Partnership Bill [HL]
Schedule 8 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

195

 

Schedule 8

Section 71(4)

 

Financial relief in England and Wales after overseas dissolution etc. of a

civil partnership

Part 1

Financial relief

5

Part applies where civil partnership has been dissolved etc. overseas

1     (1)  

This Part of this Schedule applies where—

(a)   

a civil partnership has been dissolved or annulled, or the civil

partners have been legally separated, by means of judicial or other

proceedings in an overseas country, and

10

(b)   

the dissolution, annulment or legal separation is entitled to be

recognised as valid in England and Wales.

      (2)  

This Part of this Schedule applies even if the date of the dissolution,

annulment or legal separation is earlier than the date on which the Part

comes into force.

15

      (3)  

In this Schedule “overseas country” means a country or territory outside the

British Islands.

      (4)  

In this Part of this Schedule “child of the family” means—

(a)   

a child of both of the civil partners, and

(b)   

any other child, other than a child placed with them as foster parents

20

or by a local authority or voluntary organisation, who has been

treated by both the civil partners as a child of their family.

Either civil partner may make application for financial relief

2     (1)  

Either of the civil partners may make an application to the court for an order

under paragraph 9 or 13.

25

      (2)  

The rights conferred by sub-paragraph (1) are subject to—

(a)   

paragraph 3 (civil partner may not apply after forming subsequent

civil partnership etc.), and

(b)   

paragraph 4 (application may not be made until leave to make it has

been granted).

30

      (3)  

An application for an order under paragraph 9 or 13 must be made in a

manner prescribed by rules of court.

No application after formation of subsequent civil partnership or marriage

3     (1)  

If—

(a)   

the civil partnership has been dissolved or annulled, and

35

(b)   

after the dissolution or annulment, one of the civil partners forms a

subsequent civil partnership or marriage,

           

that civil partner shall not be entitled to make, in relation to the civil

partnership, an application for an order under paragraph 9 or 13.

      (2)  

The reference in sub-paragraph (1) to the forming of a subsequent civil

40

partnership or marriage includes a reference to the forming of a civil

partnership or marriage which is by law void or voidable.

 

 

Civil Partnership Bill [HL]
Schedule 8 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

196

 

Leave of court required for making of application

4     (1)  

No application for an order under paragraph 9 or 13 shall be made unless

the leave of the court has been obtained in accordance with rules of court.

      (2)  

The court shall not grant leave under this paragraph unless it considers that

there is substantial ground for the making of an application for such an

5

order.

      (3)  

The court may grant leave under this paragraph notwithstanding that an

order has been made by a court in a country outside England and Wales

requiring the other civil partner to make any payment, or transfer any

property, to the applicant or to a child of the family.

10

      (4)  

Leave under this paragraph may be granted subject to such conditions as the

court thinks fit.

Interim orders for maintenance

5     (1)  

Where—

(a)   

leave is granted under paragraph 4, and

15

(b)   

it appears to the court that the civil partner who applied for leave, or

any child of the family, is in immediate need of financial assistance,

           

the court may, subject to sub-paragraph (4), make an interim order for

maintenance.

      (2)  

An interim order for maintenance is one requiring the other civil partner to

20

make—

(a)   

to the applicant, or

(b)   

to the child,

           

such periodical payments as the court thinks reasonable for such term as the

court thinks reasonable.

25

      (3)  

The term must be one—

(a)   

beginning not earlier than the date of the grant of leave, and

(b)   

ending with the date of the determination of the application made

under the leave.

      (4)  

If it appears to the court that the court will, in the event of an application

30

being made under the leave, have jurisdiction to entertain the application

only under paragraph 7(4), the court shall not make an interim order under

this paragraph.

      (5)  

An interim order under this paragraph may be made subject to such

conditions as the court thinks fit.

35

Paragraphs 7 and 8 apply where application made for relief under paragraph 9 or 13

6          

Paragraphs 7 and 8 apply where—

(a)   

one of the civil partners has been granted leave under paragraph 4,

and

(b)   

acting under the leave, that civil partner makes an application for an

40

order under paragraph 9 or 13.

 

 

Civil Partnership Bill [HL]
Schedule 8 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

197

 

Jurisdiction of the court

7     (1)  

The court shall have jurisdiction to entertain the application only if one or

more of the following jurisdictional requirements is satisfied.

      (2)  

The first requirement is that either of the civil partners—

(a)   

was domiciled in England and Wales on the date when the leave was

5

applied for, or

(b)   

was domiciled in England and Wales on the date when the

dissolution, annulment or legal separation took effect in the overseas

country in which it was obtained.

      (3)  

The second is that either of the civil partners—

10

(a)   

was habitually resident in England and Wales throughout the period

of one year ending with the date when the leave was applied for, or

(b)   

was habitually resident in England and Wales throughout the period

of one year ending with the date on which the dissolution,

annulment or legal separation took effect in the overseas country in

15

which it was obtained.

      (4)  

The third is that either or both of the civil partners had, at the date when the

leave was applied for, a beneficial interest in possession in a dwelling-house

situated in England or Wales which was at some time during the civil

partnership a civil partnership home of the civil partners.

20

      (5)  

In sub-paragraph (4) “possession” includes receipt of, or the right to receive,

rents and profits, but here “rent” does not include mortgage interest.

Duty of the court to consider whether England and Wales is appropriate venue for application

8     (1)  

Before deciding the application, the court must consider whether in all the

circumstances of the case it would be appropriate for an order of the kind

25

applied for to be made by a court in England and Wales.

      (2)  

If the court is not satisfied that it would be appropriate, the court shall

dismiss the application.

      (3)  

The court must, in particular, have regard to the following matters—

(a)   

the connection which the civil partners have with England and

30

Wales;

(b)   

the connection which the civil partners have with the country in

which the civil partnership was dissolved or annulled or in which

they were legally separated;

(c)   

the connection which the civil partners have with any other country

35

outside England and Wales;

(d)   

any financial benefit which, in consequence of the dissolution,

annulment or legal separation—

(i)   

the applicant, or

(ii)   

a child of the family,

40

   

has received, or is likely to receive, by virtue of any agreement or the

operation of the law of a country outside England and Wales;

(e)   

in a case where an order has been made by a court in a country

outside England and Wales requiring the other civil partner—

(i)   

to make any payment, or

45

(ii)   

to transfer any property,

 

 

Civil Partnership Bill [HL]
Schedule 8 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

198

 

   

for the benefit of the applicant or a child of the family, the financial

relief given by the order and the extent to which the order has been

complied with or is likely to be complied with;

(f)   

any right which the applicant has, or has had, to apply for financial

relief from the other civil partner under the law of any country

5

outside England and Wales and, if the applicant has omitted to

exercise that right, the reason for that omission;

(g)   

the availability in England and Wales of any property in respect of

which an order under this Schedule in favour of the applicant could

be made;

10

(h)   

the extent to which any order made under this Schedule is likely to

be enforceable;

(i)   

the length of time which has elapsed since the date of the dissolution,

annulment or legal separation.

Orders for financial provision, property adjustment and pension sharing

15

9     (1)  

Sub-paragraphs (2) and (3) apply where one of the civil partners has made

an application for an order under this paragraph.

      (2)  

If the civil partnership has been dissolved or annulled, the court may on the

application make any one or more of the orders which it could make under

Part 1, 2 or 4 of Schedule 6 (financial provision, property adjustment and

20

pension sharing) if a dissolution order or nullity order had been made in

respect of the civil partnership under Chapter 2 of Part 2 of this Act.

      (3)  

If the civil partners have been legally separated, the court may on the

application make any one or more of the orders which it could make under

Part 1 or 2 of Schedule 6 (financial provision and property adjustment) if a

25

separation order had been made in respect of the civil partners under

Chapter 2 of Part 2 of this Act.

      (4)  

Where under sub-paragraph (2) or (3) the court makes—

(a)   

an order which, if made under Schedule 6, would be a secured

periodical payments order,

30

(b)   

an order for the payment of a lump sum, or

(c)   

an order which, if made under that Schedule, would be a property

adjustment order,

           

then, on making that order or at any time afterwards, the court may make

any order which it could make under Part 3 of Schedule 6 (sale of property)

35

if the order under sub-paragraph (2) or (3) had been made under that

Schedule.

      (5)  

The powers under sub-paragraphs (2) to (4) are subject to paragraph 11.

Matters to which court is to have regard in exercising its powers under paragraph 9

10    (1)  

The court, in deciding—

40

(a)   

whether to exercise its powers under paragraph 9, and

(b)   

if so, in what way,

           

must act in accordance with this paragraph.

      (2)  

The court 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

45

has not reached 18.

 

 

Civil Partnership Bill [HL]
Schedule 8 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

199

 

      (3)  

The court, in exercising its powers under paragraph 9 in relation to one of

the civil partners—

(a)   

must in particular have regard to the matters mentioned in

paragraph 21(2) of Schedule 6, and

(b)   

shall be under duties corresponding to those imposed by sub-

5

paragraphs (2) and (3) of paragraph 23 of that Schedule (duties to

consider termination of financial obligations) where it decides to

exercise under paragraph 9 powers corresponding to the powers

referred to in those sub-paragraphs.

      (4)  

The matters to which the court is to have regard under sub-paragraph

10

(3)(a)—

(a)   

so far as relating to paragraph 21(2)(a) of Schedule 6 (regard to be

had to financial resources), include any benefits under a pension

arrangement which either of the civil partners has or is likely to have

(whether or not in the foreseeable future), and

15

(b)   

so far as relating to paragraph 21(2)(h) of that Schedule (regard to be

had to benefits that cease to be acquirable), include any benefits

under a pension arrangement which, because of the dissolution or

annulment of the civil partnership, one of the civil partners will lose

the chance of acquiring.

20

      (5)  

The court, in exercising its powers under paragraph 9 in relation to a child

of the family, must in particular have regard to the matters mentioned in

paragraph 22(2) of Schedule 6.

      (6)  

The court, in exercising its powers under paragraph 9 against a civil partner

(“A”) in favour of a child of the family who is not A’s child, must also have

25

regard to the matters mentioned in paragraph 22(3) of Schedule 6.

      (7)  

Where an order has been made by a court outside England and Wales for—

(a)   

the making of payments, or

(b)   

the transfer of property,

           

by one of the civil partners, the court in considering in accordance with this

30

paragraph the financial resources of the other civil partner, or of a child of

the family, shall have regard to the extent to which that order has been

complied with or is likely to be complied with.

      (8)  

In this section—

(a)   

“pension arrangement” has the same meaning as in Part 4 of

35

Schedule 6, and

(b)   

references to benefits under a pension arrangement include any

benefits by way of pension, whether under a pension arrangement or

not.

Restriction of powers under paragraph 9 where jurisdiction depends on civil partnership home

40

in England or Wales

11    (1)  

Sub-paragraphs (2) to (4) apply where the court has jurisdiction to entertain

an application for an order under paragraph 9 only because a dwelling-

house which was a civil partnership home of the civil partners is situated in

England or Wales.

45

      (2)  

The court may make under paragraph 9 any one or more of the following

orders (but no other)—

(a)   

an order that one of the civil partners shall pay to the other a

specified lump sum;

 

 

Civil Partnership Bill [HL]
Schedule 8 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

200

 

(b)   

an order that one of the civil partners shall pay to a child of the

family, or to a specified person for the benefit of a child of the family,

a specified lump sum;

(c)   

an order that one of the civil partners shall transfer that civil

partner’s interest in the dwelling-house, or a specified part of that

5

interest—

(i)   

to the other,

(ii)   

to a child of the family, or

(iii)   

to a specified person for the benefit of a child of the family;

(d)   

an order that a settlement of the interest of one of the civil partners

10

in the dwelling-house, or a specified part of that interest, be made to

the satisfaction of the court for the benefit of any one or more of—

(i)   

the other civil partner and the children of the family, or

(ii)   

either or any of them;

(e)   

an order varying for the benefit of any one or more of—

15

(i)   

the civil partners and the children of the family, or

(ii)   

either or any of them,

   

a relevant settlement so far as that settlement relates to an interest in

the dwelling-house;

(f)   

an order extinguishing or reducing the interest of either of the civil

20

partners under a relevant settlement so far as that interest is an

interest in the dwelling-house;

(g)   

an order for the sale of the interest of one of the civil partners in the

dwelling-house.

      (3)  

Where under paragraph 9 the court makes just one order for the payment of

25

a lump sum by one of the civil partners, the amount of the lump sum must

not exceed the amount specified in sub-paragraph (5).

      (4)  

Where under paragraph 9 the court makes two or more orders each of which

is an order for the payment of a lump sum by the same civil partner, the total

of the amounts of the lump sums must not exceed the amount specified in

30

sub-paragraph (5).

      (5)  

That amount is—

(a)   

if the interest of the paying civil partner in the dwelling-house is sold

in pursuance of an order made under sub-paragraph (2)(g), the

amount of the proceeds of sale of that interest after deducting from

35

those proceeds any costs incurred in the sale of that interest;

(b)   

if that interest is not so sold, the amount which in the opinion of the

court represents the value of that interest.

      (6)  

Where the interest of one of the civil partners in the dwelling-house is held

jointly or in common with any other person or persons—

40

(a)   

the reference in sub-paragraph (2)(g) to the interest of one of the civil

partners shall be construed as including a reference to the interest of

that other person, or the interest of those other persons, in the

dwelling-house, and

(b)   

the reference in sub-paragraph (5)(a) to the amount of the proceeds

45

of a sale ordered under sub-paragraph (2)(g) shall be construed as a

reference to that part of those proceeds which is attributable to the

interest of that civil partner in the dwelling-house.

      (7)  

In sub-paragraph (2)—

 

 

Civil Partnership Bill [HL]
Schedule 8 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

201

 

“relevant settlement” means a settlement made, during the

subsistence of the civil partnership or in anticipation of its

formation, on the civil partners, including one made by will or

codicil;

“specified” means specified in the order.

5

Consent orders under paragraph 9

12    (1)  

On an application for a consent order under paragraph 9, the court may

make an order in the terms agreed on the basis only of the prescribed

information furnished with the application.

      (2)  

Sub-paragraph (1) does not apply if the court has reason to think that there

10

are other circumstances into which it ought to inquire.

      (3)  

Sub-paragraph (1) applies to an application for a consent order varying or

discharging an order under paragraph 9 as it applies to an application for

such an order.

      (4)  

Sub-paragraph (1) applies despite paragraph 10.

15

      (5)  

In this paragraph—

“consent order”, in relation to an application for an order, means an

order in the terms applied for to which the respondent agrees;

“prescribed” means prescribed by rules of court.

Orders for transfers of tenancies of dwelling-houses

20

13    (1)  

This paragraph applies if—

(a)   

an application is made by one of the civil partners for an order under

this paragraph, and

(b)   

one of the civil partners is entitled, either in his own right or jointly

with the other civil partner, to occupy a dwelling-house in England

25

or Wales by virtue of a tenancy which is a relevant tenancy within the

meaning of Schedule 7 to the Family Law Act 1996 (c. 27).

      (2)  

The court may make in relation to that dwelling-house any order which it

could make under Part 2 of that Schedule (order transferring tenancy or

switching statutory tenants) if it had power to make a property adjustment

30

order under Part 2 of Schedule 6 to this Act with respect to the civil

partnership.

      (3)  

The provisions of paragraphs 10, 11 and 14(1) of Schedule 7 to the Family

Law Act 1996 (payments by transferee, pre-transfer liabilities and right of

landlord to be heard) apply in relation to any order under this paragraph as

35

they apply to any order under Part 2 of that Schedule.

Application to orders under paragraphs 5 and 9 of provisions of Schedule 6

14    (1)  

The following provisions of Schedule 6 apply in relation to an order made

under paragraph 5 or 9 of this Schedule as they apply in relation to a like

order made under that Schedule—

40

(a)   

paragraph 3(1) to (3) and (7) (lump sums);

(b)   

paragraph 11(2) to (4), 12(2), 13 and 14 (orders for sale);

(c)   

paragraphs 17, 18 and 19(2) and (3) (pension sharing);

(d)   

paragraphs 25 and 26 (orders under Part 1 relating to pensions);

(e)   

paragraphs 39(1) to (4) and (6) and 41 (duration of orders);

45

 

 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2004
Revised 7 July 2004