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 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 4 — Matters to which court is to have regard under Parts 1 to 3
248

      (3)
The power to make regulations under sub-paragraph (2) is exercisable by
statutory rule for the purposes of the Statutory Rules (Northern Ireland)
Order 1979 (S.I. 1979/1573 (N.I. 12)).
      (4)
Regulations under sub-paragraph (2) are subject to annulment in pursuance
of a resolution of either House of Parliament in the same manner as a
5
statutory instrument; and section 5 of the Statutory Instruments Act 1946
(c. 36) applies accordingly.
Part 4
Matters to which court is to have regard under Parts 1 to 3
General
10
15
The court in deciding—
(a)
whether to exercise its powers under—
(i)
Part 1 (financial provision on dissolution etc.),
(ii)
Part 2 (property adjustment orders), or
(iii)
any provision of Part 3 (pension sharing orders) other than
15
paragraph 12 (apportionment of charges), and
(b)
if so, in what way,

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
has not reached 18.
20
Particular matters to be taken into account when exercising powers in relation to civil partners
16    (1)
This paragraph applies to the exercise by the court in relation to a civil
partner of its powers under—
(a)
Part 1 (financial provision on dissolution etc.) by virtue of paragraph
2(1)(a), (b) or (c),
25
(b)
Part 2 (property adjustment orders), or
(c)
Part 3 (pension sharing orders).
      (2)
The court must in particular have regard to—
(a)
the income, earning capacity, property and other financial resources
which each civil partner—
30
(i)
has, or
(ii)
is likely to have in the foreseeable future,

including, in the case of earning capacity, any increase in that
capacity which it would in the opinion of the court be reasonable to
expect the civil partner to take steps to acquire;
35
(b)
the financial needs, obligations and responsibilities which each civil
partner has or is likely to have in the foreseeable future;
(c)
the standard of living enjoyed by the family before the breakdown of
the civil partnership;
(d)
the age of each civil partner and the duration of the civil partnership;
40
(e)
any physical or mental disability of either of the civil partners;
(f)
the contributions which each civil partner has made or is likely in the
foreseeable future to make to the welfare of the family, including any
contribution by looking after the home or caring for the family;

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 4 — Matters to which court is to have regard under Parts 1 to 3
249

(g)
the conduct of each civil partner, if that conduct is such that it would
in the opinion of the court be inequitable to disregard it;
(h)
in the case of proceedings for a dissolution or nullity order, the value
to each civil partner of any benefit which, because of the dissolution
or annulment of the civil partnership, that civil partner will lose the
5
chance of acquiring.
Particular matters to be taken into account when exercising powers in relation to children
17    (1)
This paragraph applies to the exercise by the court in relation to a child of
the family of its powers under—
(a)
Part 1 (financial provision on dissolution etc.) by virtue of paragraph
10
2(1)(d), (e) or (f), or
(b)
Part 2 (property adjustment orders).
      (2)
The court must in particular have regard to—
(a)
the financial needs of the child;
(b)
the income, earning capacity (if any), property and other financial
15
resources of the child;
(c)
any physical or mental disability of the child;
(d)
the way in which the child was being and in which the civil partners
expected the child to be educated or trained;
(e)
the considerations mentioned in relation to the civil partners in
20
paragraph 16(2)(a), (b), (c) and (e).
      (3)
In relation to the exercise of any of those powers against a civil partner (“A”)
in favour of a child of the family who is not A’s child, the court must also
have regard to—
(a)
whether A has assumed any responsibility for the child’s
25
maintenance,
(b)
if so, the extent to which, and the basis upon which, A assumed such
responsibility and the length of time for which A discharged such
responsibility;
(c)
whether in assuming and discharging such responsibility A did so
30
knowing that the child was not A’s child;
(d)
the liability of any other person to maintain the child.
Terminating considerations
18    (1)
Sub-paragraphs (2) and (3) apply if, on or after the making of a dissolution
or nullity order, the court decides to exercise its powers under—
35
(a)
Part 1 (financial provision on dissolution etc.) by virtue of paragraph
2(1)(a), (b) or (c),
(b)
Part 2 (property adjustment orders), or
(c)
Part 3 (pension sharing orders),

in favour of one of the civil partners.
40
      (2)
The court must consider whether it would be appropriate to exercise those
powers in such a way that the financial obligations of each civil partner
towards the other will be terminated as soon after the making of the
dissolution or nullity order as the court considers just and reasonable.
      (3)
If the court decides to make—
45
(a)
a periodical payments order, or

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 5 — Making of Part 1 orders having regard to pension benefits
250

(b)
a secured periodical payments order,

in favour of one of the civil partners (“A”), it must in particular consider
whether it would be appropriate to require the payments to be made or
secured only for such term as would in its opinion be sufficient to enable A
to adjust without undue hardship to the termination of A’s financial
5
dependence on the other civil partner.
      (4)
If—
(a)
on or after the making of a dissolution or nullity order, an application
is made by one of the civil partners for a periodical payments or
secured periodical payments order in that civil partner’s favour, but
10
(b)
the court considers that no continuing obligation should be imposed
on either civil partner to make or secure periodical payments in
favour of the other,

the court may dismiss the application with a direction that the applicant is
not entitled to make any future application in relation to that civil
15
partnership for an order under Part 1 by virtue of paragraph 2(1)(a) or (b).
Part 5
Making of Part 1 orders having regard to pension benefits
Pension benefits to be included in matters to which court is to have regard
19    (1)
The matters to which the court is to have regard under paragraph 16(2)(a)
20
include any pension benefits under a pension arrangement or by way of
pension which a civil partner has or is likely to have; and, accordingly, in
relation to any pension benefits paragraph 16(2)(a)(ii) has effect as if “in the
foreseeable future” were omitted.
      (2)
The matters to which the court is to have regard under paragraph 16(2)(h)
25
include any pension benefits which, because of the making of a dissolution
or nullity order, a civil partner will lose the chance of acquiring.
      (3)
“Pension benefits” means—
(a)
benefits under a pension arrangement, or
(b)
benefits by way of pension (whether under a pension arrangement or
30
not).
Provisions applying where pension benefits taken into account in decision to make Part 1 order
20    (1)
This paragraph applies if, having regard to any benefits under a pension
arrangement, the court decides to make an order under Part 1.
      (2)
To the extent to which the Part 1 order is made having regard to any benefits
35
under a pension arrangement, it may require the person responsible for the
pension arrangement, if at any time any payment in respect of any benefits
under the arrangement becomes due to the civil partner with pension rights,
to make a payment for the benefit of the other civil partner.
      (3)
The Part 1 order must express the amount of any payment required to be
40
made by virtue of sub-paragraph (2) as a percentage of the payment which
becomes due to the civil partner with pension rights.
      (4)
Any such payment by the person responsible for the arrangement—
(a)
discharges so much of his liability to the civil partner with pension
rights as corresponds to the amount of the payment, and
45

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 5 — Making of Part 1 orders having regard to pension benefits
251

(b)
is to be treated for all purposes as a payment made by the civil
partner with pension rights in or towards the discharge of that civil
partner’s liability under the order.
      (5)
If the civil partner with pension rights has a right of commutation under the
arrangement, the Part 1 order may require that civil partner to exercise it to
5
any extent.
      (6)
This paragraph applies to any payment due in consequence of commutation
in pursuance of the Part 1 order as it applies to other payments in respect of
benefits under the arrangement.
      (7)
The power conferred by sub-paragraph (5) may not be exercised for the
10
purpose of commuting a benefit payable to the civil partner with pension
rights to a benefit payable to the other civil partner.
      (8)
The powers conferred by sub-paragraphs (2) and (5) may not be exercised in
relation to a pension arrangement which—
(a)
is the subject of a pension sharing order in relation to the civil
15
partnership, or
(b)
has been the subject of pension sharing between the civil partners.
Pensions: lump sums
21    (1)
This paragraph applies if the benefits which the civil partner with pension
rights has or is likely to have under a pension arrangement include any lump
20
sum payable in respect of that civil partner’s death.
      (2)
The court’s power under Part 1 to order a civil partner to pay a lump sum to
the other civil partner includes the power to make by the order any of the
provision in sub-paragraphs (3) to (5).
      (3)
If the person responsible for the pension arrangement has power to
25
determine the person to whom the sum, or any part of it, is to be paid, the
court may require him to pay the whole or part of that sum, when it becomes
due, to the other civil partner.
      (4)
If the civil partner with pension rights has power to nominate the person to
whom the sum, or any part of it, is to be paid, the court may require the civil
30
partner with pension rights to nominate the other civil partner in respect of
the whole or part of that sum.
      (5)
In any other case, the court may require the person responsible for the
pension arrangement in question to pay the whole or part of that sum, when
it becomes due, for the benefit of the other civil partner instead of to the
35
person to whom, apart from the order, it would be paid.
      (6)
Any payment by the person responsible for the arrangement under an order
made under Part 1 made by virtue of this paragraph discharges so much of
his liability in respect of the civil partner with pension rights as corresponds
to the amount of the payment.
40
      (7)
The powers conferred by this paragraph may not be exercised in relation to
a pension arrangement which—
(a)
is the subject of a pension sharing order in relation to the civil
partnership, or
(b)
has been the subject of pension sharing between the civil partners.
45

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 5 — Making of Part 1 orders having regard to pension benefits
252

Pensions: supplementary
22
If—
(a)
a Part 1 order made by virtue of paragraph 20 or 21 imposes any
requirement on the person responsible for a pension arrangement
(“the first arrangement”),
5
(b)
the civil partner with pension rights acquires rights under another
pension arrangement (“the new arrangement”) which are derived
(directly or indirectly) from the whole of that civil partner’s rights
under the first arrangement, and
(c)
the person responsible for the new arrangement has been given
10
notice in accordance with regulations made by the Lord Chancellor,

the Part 1 order has effect as if it had been made instead in respect of the
person responsible for the new arrangement.
Regulations
23    (1)
The Lord Chancellor may by regulations—
15
(a)
make provision, in relation to any provision of paragraphs 20 or 21
which authorises the court making a Part 1 order to require the
person responsible for a pension arrangement to make a payment for
the benefit of the other civil partner, as to—
(i)
the person to whom, and
20
(ii)
the terms on which,

the payment is to be made;
(b)
make provision, in relation to payment under a mistaken belief as to
the continuation in force of a provision included by virtue of
paragraph 20 or 21 in a Part 1 order, about the rights or liabilities of
25
the payer, the payee or the person to whom the payment was due;
(c)
require notices to be given in respect of changes of circumstances
relevant to Part 1 orders which include provision made by virtue of
paragraphs 20 and 21;
(d)
make provision for the person responsible for a pension
30
arrangement to be discharged in prescribed circumstances from a
requirement imposed by virtue of paragraph 20 or 21;
(e)
make provision about calculation and verification in relation to the
valuation of—
(i)
benefits under a pension arrangement, or
35
(ii)
shareable state scheme rights (within the meaning of
paragraph 11(3)),

for the purposes of the court’s functions in connection with the
exercise of any of its powers under this Schedule.
      (2)
Regulations under sub-paragraph (1)(e) may include—
40
(a)
provision for calculation or verification in accordance with guidance
from time to time prepared by a prescribed person, and
(b)
provision by reference to regulations under Article 27 or 46(4) of the
Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I.
1999/3147 (N.I. 11)).
45
      (3)
Regulations under sub-paragraph (1) may make different provision for
different cases.

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 7 — Failure to maintain: financial provision (and interim orders)
253

      (4)
The power to make regulations under this paragraph is exercisable by
statutory rule for the purposes of the Statutory Rules (Northern Ireland)
Order 1979 (S.I. 1979/1573 (N.I. 12)).
      (5)
Regulations under this paragraph are subject to annulment in pursuance of
a resolution of either House of Parliament in the same manner as a statutory
5
instrument; and section 5 of the Statutory Instruments Act 1946 (c. 36)
applies accordingly.
      (6)
“Prescribed” means prescribed by regulations.
Interpretation of provisions relating to pensions
24    (1)
In this Part “the civil partner with pension rights” means the civil partner
10
who has or is likely to have benefits under a pension arrangement.
      (2)
In this Part “pension arrangement” has the same meaning as in Part 3.
      (3)
In this Part, references to the person responsible for a pension arrangement
are to be read in accordance with Article 23 of the 1999 Order.
Part 6
15
Maintenance pending outcome of dissolution, nullity or separation
proceedings
25
On an application for a dissolution, nullity or separation order, the court
may make an order requiring either civil partner to make to the other for the
other’s maintenance such periodical payments for such term—
20
(a)
beginning no earlier than the date on which the application was
made, and
(b)
ending with the date on which the proceedings are determined,

as the court thinks reasonable.
Part 7
25
Failure to maintain: financial provision (and interim orders)
Circumstances in which orders under this Part may be made
26    (1)
Either civil partner in a subsisting civil partnership may apply to the court
for an order under this Part on the ground that the other civil partner (“the
respondent”)—
30
(a)
has failed to provide reasonable maintenance for the applicant, or
(b)
has failed to provide, or to make a proper contribution towards,
reasonable maintenance for any child of the family.
      (2)
The court must not entertain an application under this paragraph unless—
(a)
the applicant or the respondent is domiciled in Northern Ireland on
35
the date of the application,
(b)
the applicant has been habitually resident there throughout the
period of 1 year ending with that date, or
(c)
the respondent is resident there on that date.
      (3)
If, on an application under this paragraph, it appears to the court that—
40
(a)
the applicant or any child of the family to whom the application
relates is in immediate need of financial assistance, but

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 7 — Failure to maintain: financial provision (and interim orders)
254

(b)
it is not yet possible to determine what order, if any, should be made
on the application,

the court may make an interim order.
      (4)
If, on an application under this paragraph, the applicant satisfies the court
of a ground mentioned in sub-paragraph (1), the court may make one or
5
more of the orders set out in paragraph 28.
Interim orders
27
An interim order is an order requiring the respondent to make to the
applicant, until the determination of the application, such periodical
payments as the court thinks reasonable.
10
Orders that may be made where failure to maintain established
28    (1)
The orders are—
(a)
an order that the respondent must make to the applicant such
periodical payments for such term as may be specified;
(b)
an order that the respondent must secure to the applicant, to the
15
satisfaction of the court, such periodical payments for such term as
may be specified;
(c)
an order that the respondent must pay to the applicant such lump
sum as may be specified;
(d)
an order that the respondent must make such periodical payments
20
for such term as may be specified—
(i)
to such person as may be specified, for the benefit of the child
to whom the application relates, or
(ii)
to the child to whom the application relates;
(e)
an order that the respondent must secure—
25
(i)
to such person as may be specified for the benefit of the child
to whom the application relates, or
(ii)
to the child to whom the application relates,

to the satisfaction of the court, such periodical payments for such
term as may be specified;
30
(f)
an order that the respondent must pay such lump sum as may be
specified—
(i)
to such person as may be specified for the benefit of the child
to whom the application relates, or
(ii)
to the child to whom the application relates.
35
      (2)
In this Part “specified” means specified in the order.
Particular provision that may be made by lump sum orders
29    (1)
An order under this Part for the payment of a lump sum may be made for
the purpose of enabling any liabilities or expenses reasonably incurred in
maintaining the applicant or any child of the family to whom the application
40
relates before the making of the application to be met.
      (2)
An order under this Part for the payment of a lump sum may—
(a)
provide for its payment by instalments of such amount as may be
specified, and