|
| |
|
| |
| |
Financial relief in England and Wales after overseas dissolution etc. of a |
| |
| |
| |
| 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 |
| |
| 15 |
(3) | In this Schedule “overseas country” means a country or territory outside the |
| |
| |
(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 |
| |
| 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 |
| |
| 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 |
| |
| |
(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. |
| |
|
| |
|
| |
|
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 |
| |
(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 |
| |
| |
Interim orders for maintenance |
| |
| |
(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 |
| |
| |
(2) | An interim order for maintenance is one requiring the other civil partner to |
| 20 |
| |
| |
| |
| such periodical payments as the court thinks reasonable for such term as the |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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, |
| |
| |
(b) | acting under the leave, that civil partner makes an application for an |
| 40 |
order under paragraph 9 or 13. |
| |
|
| |
|
| |
|
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 |
| |
(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 |
| |
(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 |
| |
| |
(3) | The court must, in particular, have regard to the following matters— |
| |
(a) | the connection which the civil partners have with England and |
| 30 |
| |
(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— |
| |
| |
(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, |
| |
|
| |
|
| |
|
| 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 |
| |
| 10 |
(h) | the extent to which any order made under this Schedule is likely to |
| |
| |
(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 |
| |
| |
| 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 |
| |
| |
(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 |
| |
| |
| 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 |
| |
|
| |
|
| |
|
(3) | The court, in exercising its powers under paragraph 9 in relation to one of |
| |
| |
(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 |
| |
(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 |
| |
| 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. |
| |
| |
(a) | “pension arrangement” has the same meaning as in Part 4 of |
| 35 |
| |
(b) | references to benefits under a pension arrangement include any |
| |
benefits by way of pension, whether under a pension arrangement or |
| |
| |
Restriction of powers under paragraph 9 where jurisdiction depends on civil partnership home |
| 40 |
| |
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 |
| |
| 45 |
(2) | The court may make under paragraph 9 any one or more of the following |
| |
| |
(a) | an order that one of the civil partners shall pay to the other a |
| |
| |
|
| |
|
| |
|
(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, |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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)— |
| |
|
| |
|
| |
|
| “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 |
| |
| |
| “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 |
| |
| |
(4) | Sub-paragraph (1) applies despite paragraph 10. |
| 15 |
| |
| “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 |
| |
| |
(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 |
| |
| |
(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 |
|
| |
|