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 7 — Failure to maintain: financial provision (and interim orders)
255

(b)
require the payment of the instalments to be secured to the
satisfaction of the court.
      (3)
Sub-paragraphs (1) and (2) do not restrict the power to make an order by
virtue of paragraph 28(1)(c) or (f).
Matters to which the court is to have regard on application under paragraph 26(1)(a)
5
30    (1)
This paragraph applies if an application under paragraph 26 is made on the
ground mentioned in paragraph 26(1)(a).
      (2)
In deciding—
(a)
whether the respondent has failed to provide reasonable
maintenance for the applicant, and
10
(b)
what order, if any, to make under this Part in favour of the applicant,

the court must have regard to all the circumstances of the case including the
matters mentioned in paragraph 16(2).
      (3)
If an application is also made under paragraph 26 in respect of a child of the
family who has not reached 18, the court must give first consideration to the
15
welfare of the child while under 18.
      (4)
Paragraph 16(2)(c) has effect as if for the reference in it to the breakdown of
the civil partnership there were substituted a reference to the failure to
provide reasonable maintenance for the applicant.
Matters to which the court is to have regard on application under paragraph 26(1)(b)
20
31    (1)
This paragraph applies if an application under paragraph 26 is made on the
ground mentioned in paragraph 26(1)(b).
      (2)
In deciding—
(a)
whether the respondent has failed to provide, or to make a proper
contribution towards, reasonable maintenance for the child of the
25
family to whom the application relates, and
(b)
what order, if any, to make under this Part in favour of the child,

the court must have regard to all the circumstances of the case.
      (3)
Those circumstances include—
(a)
the matters mentioned in paragraph 17(2)(a) to (e), and
30
(b)
if the child of the family to whom the application relates is not the
child of the respondent, the matters mentioned in paragraph 17(3).
      (4)
Paragraph 16(2)(c) (as it applies by virtue of paragraph 17(2)(e)) has effect as
if for the reference in it to the breakdown of the civil partnership there were
substituted a reference to—
35
(a)
the failure to provide, or
(b)
the failure to make a proper contribution towards,

reasonable maintenance for the child of the family to whom the application
relates.
Restrictions on making orders under this Part
40
32
The power to make an order under paragraph 28(1)(d), (e) or (f) is subject to
paragraph 36(1) and (5) (restrictions on orders in favour of children who
have reached 18).

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 8 — Commencement of certain proceedings and duration of certain orders
256

Part 8
Commencement of certain proceedings and duration of certain orders
Commencement of proceedings for ancillary relief, etc.
33    (1)
Sub-paragraph (2) applies if an application for a dissolution, nullity or
separation order has been made.
5
      (2)
Subject to sub-paragraph (3), proceedings for—
(a)
an order under Part 1 (financial provision on dissolution etc.),
(b)
a property adjustment order, or
(c)
an order under Part 6 (maintenance pending outcome of dissolution,
nullity or separation proceedings),
10

may be begun (subject to and in accordance with rules of court), at any time
after the presentation of the application.
      (3)
Rules of court may provide, in such cases as may be prescribed by the rules
that—
(a)
an application for any such relief as is mentioned in sub-paragraph
15
(2) must be made in the application or defence, and
(b)
an application for any such relief which—
(i)
is not so made, or
(ii)
is not made until after the end of such period following the
presentation of the application or filing of the defence as may
20
be so prescribed,

may be made only with the leave of the court.
Duration of periodical and secured periodical payments orders for a civil partner
34    (1)
The court may specify in a periodical payments or secured periodical
payments order in favour of a civil partner such term as it thinks fit, except
25
that the term must not—
(a)
begin before the date of the making of an application for the order, or
(b)
extend beyond the limits given in sub-paragraphs (2) and (3).
      (2)
The limits in the case of a periodical payments order are—
(a)
the death of either civil partner;
30
(b)
where the order is made on or after the making of a dissolution or
nullity order, the formation of a subsequent civil partnership or
marriage by the civil partner in whose favour the order is made.
      (3)
The limits in the case of a secured periodical payments order are—
(a)
the death of the civil partner in whose favour the order is made;
35
(b)
where the order is made on or after the making of a dissolution or
nullity order, the formation of a subsequent civil partnership or
marriage by the civil partner in whose favour the order is made.
      (4)
In the case of an order made on or after the making of a dissolution or nullity
order, sub-paragraphs (1) to (3) are subject to paragraphs 18(3) and 44(4).
40
      (5)
If a periodical payments or secured periodical payments order in favour of
a civil partner is made on or after the making of a dissolution or nullity
order, the court may direct that that civil partner is not entitled to apply
under paragraph 38 for the extension of the term specified in the order.
      (6)
If—
45

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 8 — Commencement of certain proceedings and duration of certain orders
257

(a)
a periodical payments or secured periodical payments order in
favour of a civil partner is made otherwise than on or after the
making of a dissolution or nullity order, and
(b)
the civil partnership is subsequently dissolved or annulled but the
order continues in force,
5

the order ceases to have effect (regardless of anything in it) on the formation
of a subsequent civil partnership or marriage by that civil partner, except in
relation to any arrears due under it on the date of its formation.
Subsequent civil partnership or marriage
35
If after the making of a dissolution or nullity order one of the civil partners
10
forms a subsequent civil partnership or marriage, that civil partner is not
entitled to apply, by reference to the dissolution or nullity order, for—
(a)
an order under Part 1 in that civil partner’s favour, or
(b)
a property adjustment order,

against the other civil partner in the dissolved or annulled civil partnership.
15
Duration of continuing orders in favour of children, and age limit on making certain orders in
their favour
36    (1)
Subject to paragraph (5)—
(a)
no order under Part 1,
(b)
no property adjustment order made by virtue of paragraph 7(1)(a)
20
(transfer of property), and
(c)
no order made under Part 7 (failure to maintain) by virtue of
paragraph 28,

is to be made in favour of a child who has reached 18.
      (2)
The term to be specified in a periodical payments or secured periodical
25
payments order in favour of a child may begin with—
(a)
the date of the making of an application for the order or a later date,
or
(b)
a date ascertained in accordance with sub-paragraph (7) or (8).
      (3)
The term to be specified in such an order—
30
(a)
must not in the first instance extend beyond the date of the birthday
of the child next following the child’s reaching the upper limit of the
compulsory school age unless the court considers that in the
circumstances of the case the welfare of the child requires that it
should extend to a later date, and
35
(b)
must not in any event, subject to sub-paragraph (5), extend beyond
the date of the child’s 18th birthday.
      (4)
In sub-paragraph (3)(a) “compulsory school age” has the meaning given in
Article 46 of the Education and Libraries (Northern Ireland) Order 1986 (S.I.
1986/594 (N.I. 3)).
40
      (5)
Sub-paragraphs (1) and (3)(b) do not apply in the case of a child, if it appears
to the court that—
(a)
the child is, or will be, or, if an order were made without complying
with either or both of those provisions, would be—
(i)
receiving instruction at an educational establishment, or
45
(ii)
undergoing training for a trade, profession or vocation,

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 9 — Variation, discharge etc. of certain orders for financial relief
258


whether or not the child also is, will be or would be in gainful
employment, or
(b)
there are special circumstances which justify the making of an order
without complying with either or both of sub-paragraphs (1) and
(3)(b).
5
      (6)
A periodical payments order in favour of a child, regardless of anything in
the order, ceases to have effect on the death of the person liable to make
payments under the order, except in relation to any arrears due under the
order on the date of the death.
      (7)
If—
10
(a)
a maintenance calculation (“the current calculation”) is in force with
respect to a child, and
(b)
an application is made under this Schedule for a periodical payments
or secured periodical payments order in favour of that child before
the end of 6 months beginning with the making of the current
15
calculation,

the term to be specified in any such order made on that application may be
expressed to begin on, or at any time after, the earliest permitted date.
      (8)
“The earliest permitted date” is whichever is the later of—
(a)
the date 6 months before the application is made, or
20
(b)
the date on which the current calculation took effect or, where
successive maintenance calculations have been continuously in force
with respect to a child, on which the first of those calculations took
effect.
      (9)
If—
25
(a)
a maintenance calculation ceases to have effect by or under any
provision of the Child Support (Northern Ireland) Order 1991 (S.I.
1991/2628 (N.I. 23)), and
(b)
an application is made, before the end of 6 months beginning with
the relevant date, for a periodical payments or secured periodical
30
payments order in favour of a child with respect to whom that
maintenance calculation was in force immediately before it ceased to
have effect,

the term to be specified in any such order made on that application may
begin with the date on which that maintenance calculation ceased to have
35
effect or any later date.
     (10)
“The relevant date” means the date on which the maintenance calculation
ceased to have effect.
     (11)
In this Schedule “maintenance calculation” has the same meaning as it has
in the 1991 Order.
40
Part 9
Variation, discharge etc. of certain orders for financial relief
Orders etc. to which this Part applies
37    (1)
This Part applies to the following orders—
(a)
a periodical payments order under Part 1 (financial provision on
45
dissolution etc.) or Part 7 (failure to maintain);
(b)
a secured periodical payments order under Part 1 or 7;

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 9 — Variation, discharge etc. of certain orders for financial relief
259

(c)
an order under Part 6 (maintenance pending outcome of dissolution
proceedings etc.);
(d)
an interim order under Part 7;
(e)
an order made under Part 1 by virtue of paragraph 3(3) or under Part
7 by virtue of paragraph 29(2) (lump sum by instalments);
5
(f)
a deferred order made under Part 1 by virtue of paragraph 2(1)(c)
(lump sum for civil partner) which includes provision made by
virtue of—
(i)
paragraph 20(2), or
(ii)
paragraph 21,
10

(provision in respect of pension rights);
(g)
a property adjustment order made on or after the making of a
separation order by virtue of paragraph 7(1)(b), (c) or (d) (order for
settlement or variation of settlement);
(h)
a pension sharing order made before the dissolution or nullity order
15
has been made final.
      (2)
If the court has made an order referred to in sub-paragraph (1)(f)(ii), this Part
ceases to apply to the order on the death of either of the civil partners.
      (3)
The powers exercisable by the court under this Part in relation to an order
are also exercisable in relation to any instrument executed in pursuance of
20
the order.
Powers to vary, discharge, suspend or revive order
38    (1)
If the court has made an order to which this Part applies, it may—
(a)
vary or discharge the order,
(b)
suspend any provision of it temporarily, or
25
(c)
revive the operation of any provision so suspended.
      (2)
Sub-paragraph (1) is subject to the provisions of this Part and paragraph
34(5).
Power to remit arrears
39    (1)
If the court has made an order referred to in paragraph 37(1)(a), (b), (c) or (d),
30
it may remit the payment of any arrears due under the order or under any
part of the order.
      (2)
Sub-paragraph (1) is subject to the provisions of this Part.
Variation etc. of periodical or secured periodical payments orders made in cases of failure to
maintain
35
40    (1)
An application for the variation under paragraph 38 of a periodical
payments order or secured periodical payments order made under Part 7 in
favour of a child may, if the child has reached 16, be made by the child
himself.
      (2)
Sub-paragraph (3) applies if a periodical payments order made in favour of
40
a child under Part 7 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 the
child reaches 18.

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 9 — Variation, discharge etc. of certain orders for financial relief
260

      (3)
If, on an application made to the court for an order under this sub-
paragraph, it appears to the court that—
(a)
the child is, will be or, if an order were made under this sub-
paragraph, would be—
(i)
receiving instruction at an educational establishment, or
5
(ii)
undergoing training for a trade, profession or vocation,

whether or not the child also is, will be or would be in gainful
employment, or
(b)
there are special circumstances which justify the making of an order
under this sub-paragraph,
10

the court may by order revive the order mentioned in sub-paragraph (2)
from a date specified by it.
      (4)
The date specified under sub-paragraph (3) must not be earlier than the date
of the application under that sub-paragraph.
      (5)
If under sub-paragraph (3) the court revives an order it may exercise its
15
power under paragraph 38 in relation to the revived order.
Variation etc. of property adjustment and pension sharing orders
41
The court must not exercise the powers conferred by this Part in relation to
a property adjustment order falling within paragraph 7(1)(b), (c) or (d)
(order for settlement or for variation of settlement) except on an application
20
made in proceedings—
(a)
for the rescission of the separation order by reference to which the
property adjustment order was made, or
(b)
for a dissolution order in relation to the civil partnership.
42    (1)
In relation to a pension sharing order which is made at a time before the
25
dissolution or nullity order has been made final—
(a)
the powers conferred by this Part (by virtue of paragraph 37(1)(h))
may be exercised—
(i)
only on an application made before the pension sharing order
has or, but for paragraph (b), would have taken effect, and
30
(ii)
only if, at the time when the application is made, the
dissolution or nullity order has not been made final, and
(b)
an application made in accordance with paragraph (a) prevents the
pension sharing order from taking effect before the application has
been dealt with.
35
      (2)
No variation of a pension sharing order is to be made so as to take effect
before the order is made final.
      (3)
The variation of a pension sharing order prevents the order taking effect
before the end of such period after the making of the variation as may be
prescribed by regulations made by the Lord Chancellor.
40
      (4)
The power to make regulations under sub-paragraph (3) 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 sub-paragraph (3) are subject to annulment in pursuance
of a resolution of either House of Parliament in the same manner as a
45
statutory instrument; and section 5 of the Statutory Instruments Act 1946 (c.
36) applies accordingly.

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 9 — Variation, discharge etc. of certain orders for financial relief
261

43    (1)
No property adjustment order or pension sharing order may be made on an
application for the variation of a periodical payments or secured periodical
payments order made (whether in favour of a civil partner or in favour of a
child of the family) under Part 1.
      (2)
No order for the payment of a lump sum may be made on an application for
5
the variation of a periodical payments or secured periodical payments order
in favour of a civil partner (whether made under Part 1 or 7).
Matters to which court is to have regard in exercising powers under this Part
44    (1)
In exercising the powers conferred by this Part the court must have regard
to all the circumstances of the case, giving first consideration to the welfare,
10
while under 18, of any child of the family who has not reached 18.
      (2)
The circumstances of the case include, in particular, any change in any of the
matters to which the court was required to have regard when making the
order to which the application relates.
      (3)
Sub-paragraph (4) applies in the case of—
15
(a)
a periodical payments order, or
(b)
a secured periodical payments order,

made on or after the making of a dissolution or nullity order.
      (4)
The court must consider whether in all the circumstances, and after having
regard to any such change, it would be appropriate to vary the order so that
20
payments under the order are required—
(a)
to be made, or
(b)
to be secured,

only for such further period as will in the opinion of the court be sufficient
to enable the civil partner in whose favour the order was made to adjust
25
without undue hardship to the termination of those payments.
      (5)
If the civil partner against whom the order was made has died, the
circumstances of the case also include the changed circumstances resulting
from that civil partner’s death.
Variation of secured periodical payments order where person liable has died
30
45    (1)
This paragraph applies if the person liable to make payments under a
secured periodical payments order has died.
      (2)
Subject to sub-paragraph (3), an application under this Part relating to the
order may be made by—
(a)
the person entitled to payments under the periodical payments
35
order, or
(b)
the personal representatives of the deceased person.
      (3)
No such application may be made without the leave of the court after the
end of 6 months from the date on which representation in regard to the
estate of that person is first taken out.
40
      (4)
The personal representatives of the person who has died are not liable for
having distributed any part of the estate of the deceased after the end of the
6 month period on the ground that they ought to have taken into account the
possibility that the court might allow an application under this paragraph to
be made after that period by the person entitled to payments under the
45
order.