Civil Partnership Bill [HL]

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.
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      (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).
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      (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.
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      (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
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(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