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Civil Partnership Bill [HL]


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

262

 

      (5)  

Sub-paragraph (4) does not affect any power to recover any part of the estate

so distributed arising by virtue of the making of an order in pursuance of

this paragraph.

      (6)  

In considering for the purposes of sub-paragraph (3) the question when

representation was first taken out a grant limited to part of the estate is to be

5

disregarded unless a grant limited to the remainder of the estate has

previously been made or is made at the same time.

Power to direct when variation etc. is to take effect

46    (1)  

If the court, in exercise of its powers under this Part, decides—

(a)   

to vary, or

10

(b)   

to discharge,

           

a periodical payments or secured periodical payments order, it may direct

that the variation or discharge is not to take effect until the end of such

period as may be specified.

      (2)  

Sub-paragraph (1) is subject to paragraph 34(1) and (6).

15

47    (1)  

If—

(a)   

a periodical payments or secured periodical payments order in

favour of more than one child (“the order”) is in force,

(b)   

the order requires payments specified in it to be made to or for the

benefit of more than one child without apportioning those payments

20

between them,

(c)   

a maintenance calculation (“the calculation”) is made with respect to

one or more, but not all, of the children with respect to whom those

payments are to be made, and

(d)   

an application is made, before the end of the period of 6 months

25

beginning with the date on which the calculation was made, for the

variation or discharge of the order,

           

the court may, in exercise of its powers under this Part to vary or discharge

the order, direct that the variation or discharge is to take effect from the date

on which the calculation took effect or any later date.

30

      (2)  

If—

(a)   

an order (“the child order”) of a kind prescribed for the purposes of

Article 12(1) of the Child Support (Northern Ireland) Order 1991 (S.I.

1991/2628 (N.I. 23)) is affected by a maintenance calculation,

(b)   

on the date on which the child order became so affected there was in

35

force a periodical payments or secured periodical payments order

(“the civil partner’s order”) in favour of a civil partner having the

care of the child in whose favour the child order was made, and

(c)   

an application is made, before the end of the period of 6 months

beginning with the date on which the maintenance calculation was

40

made, for the civil partner’s order to be varied or discharged,

           

the court may, in exercise of its powers under this Part to vary or discharge

the civil partner’s order, direct that the variation or discharge is to take effect

from the date on which the child order became so affected or any later date.

      (3)  

For the purposes of sub-paragraph (2), an order is affected if it ceases to have

45

effect or is modified by or under Article 12 of the 1991 Order.

      (4)  

Sub-paragraphs (1) and (2) do not affect any other power of the court to

direct that the variation or discharge of an order under this Part is to take

 

 

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 10 — Arrears and repayments

263

 

effect from a date earlier than that on which the order for variation or

discharge was made.

Part 10

Arrears and repayments

Payment of certain arrears unenforceable without the leave of the court

5

48    (1)  

This paragraph applies if any arrears are due under—

(a)   

an order under Part 1 (financial provision on dissolution etc.),

(b)   

an order under Part 6 (maintenance pending outcome of dissolution,

nullity or separation proceedings), or

(c)   

an interim order under Part 7 (failure to maintain),

10

           

and the arrears became due more than 12 months before proceedings to

enforce the payment of them are begun.

      (2)  

A person is not entitled to enforce through the court the payment of the

arrears without the leave of that court.

      (3)  

The court hearing an application for the grant of leave under this paragraph

15

may—

(a)   

refuse leave,

(b)   

grant leave subject to such restrictions and conditions (including

conditions as to the allowing of time for payment or the making of

payment by instalments) as that court thinks proper, or

20

(c)   

remit the payment of the arrears or of any part of them.

Orders for repayment in certain cases of sums paid under certain orders

49    (1)  

This paragraph applies if—

(a)   

a person (“R”) is entitled to receive payments under an order listed

in sub-paragraph (4), and

25

(b)   

R’s circumstances or the circumstances of the person (“P”) liable to

make payments under the order have changed since the order was

made, or the circumstances have changed as a result of P’s death.

      (2)  

The orders are—

(a)   

any order under Part 6 (maintenance pending outcome of

30

dissolution, nullity or separation proceedings);

(b)   

any interim order under Part 7;

(c)   

any periodical payments order;

(d)   

any secured periodical payments order.

      (3)  

P or P’s personal representatives may (subject to sub-paragraph (7)) apply

35

for an order under this paragraph against R or R’s personal representatives.

      (4)  

If it appears to the court that, because of the changed circumstances or P’s

death, the amount received by R in respect of a relevant period exceeds the

amount which P or P’s personal representatives should have been required

to pay, it may order the respondent to the application to pay to the applicant

40

such sum, not exceeding the amount of the excess, as it thinks just.

      (5)  

“Relevant period” means a period after the circumstances changed or (as the

case may be) after P’s death.

 

 

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 10 — Arrears and repayments

264

 

      (6)  

An order under this paragraph for the payment of any sum may provide for

the payment of that sum by instalments of an amount specified in the order.

      (7)  

An application under this paragraph—

(a)   

may be made in proceedings in the High Court for—

(i)   

the variation or discharge of the order listed in sub-

5

paragraph (2), or

(ii)   

leave to enforce, or the enforcement of, the payment of

arrears under that order, but

(b)   

if not made in such proceedings, must be made to a county court;

           

and accordingly references in this paragraph to the court are references to

10

the High Court or a county court (whether a civil partnership proceedings

county court or not), as the circumstances require.

      (8)  

The jurisdiction conferred on a county court by this paragraph is exercisable

even though, because of the amount claimed in the application, the

jurisdiction would not but for this sub-paragraph be exercisable by a county

15

court.

Orders for repayment after cessation of order because of subsequent civil partnership etc.

50    (1)  

Sub-paragraphs (3) and (4) apply if—

(a)   

a periodical payments or secured periodical payments order in

favour of a civil partner (“R”) has ceased to have effect because of the

20

formation of a subsequent civil partnership or marriage by R, and

(b)   

the person liable to make payments under the order (“P”) (or P’s

personal representatives) has made payments in accordance with it

in respect of a relevant period in the mistaken belief that the order

was still subsisting.

25

      (2)  

“Relevant period” means a period after the date of the formation of the civil

partnership or marriage.

      (3)  

P (or P’s personal representatives) is not entitled to bring proceedings in

respect of a cause of action arising out of the circumstances mentioned in

sub-paragraph (1)(a) and (b) against R (or R’s personal representatives).

30

      (4)  

But, on an application under this paragraph by P (or P’s personal

representatives) against R (or R’s personal representatives), the court—

(a)   

may order the respondent to pay to the applicant a sum equal to the

amount of the payments made in respect of the relevant period, or

(b)   

if it appears to the court that it would be unjust to make that order,

35

may—

(i)   

order the respondent to pay to the applicant such lesser sum

as it thinks fit, or

(ii)   

dismiss the application.

      (5)  

An order under this paragraph for the payment of any sum may provide for

40

the payment of that sum by instalments of such amount as may be specified

in the order.

      (6)  

An application under this paragraph—

(a)   

may be made in proceedings in the High Court for leave to enforce,

or the enforcement of, payment of arrears under the order in

45

question, but

(b)   

if not made in such proceedings, must be made to a county court;

 

 

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 11 — Consent orders and maintenance agreements

265

 

           

and accordingly references in this paragraph to the court are references to

the High Court or a county court (whether a civil partnership proceedings

county court or not), as the circumstances require.

      (7)  

The jurisdiction conferred on a county court by this paragraph is exercisable

even though, because of the amount claimed in the application, the

5

jurisdiction would not but for this sub-paragraph be exercisable by a county

court.

      (8)  

Subject to sub-paragraph (9), the collecting officer of a court of summary

jurisdiction to whom any payments under a payments order, or under an

attachment of earnings order made to secure payments under a payments

10

order, are required to be made is not liable—

(a)   

for any act done by him in pursuance of the payments order after the

date on which that order ceased to have effect because of the

formation of a subsequent civil partnership or marriage by R, or

(b)   

for any act done by him after that date in accordance with any

15

statutory provision specifying how payments made to him in

compliance with the attachment of earnings order are to be dealt

with.

      (9)  

Sub-paragraph (8) applies if (and only if) the act—

(a)   

was one which the officer would have been under a duty to do had

20

the payments order not ceased to have effect, and

(b)   

was done before notice in writing of the formation of the civil

partnership or marriage, was given to him by or on behalf of R, P, or

R or P’s personal representatives.

     (10)  

In this paragraph—

25

“collecting officer” means the officer mentioned in section 15(2) of the

Maintenance and Affiliation Orders Act (Northern Ireland) 1966 (c.

35) or Article 85(2) of the Magistrates’ Courts (Northern Ireland)

Order 1981 (S.I. 1981/1675 (N.I. 26));

“statutory provision” has the meaning given by section 1(f) of the

30

Interpretation Act (Northern Ireland) 1954 (1954 c. 33 (N.I.)).

Part 11

Consent orders and maintenance agreements

Consent orders for financial relief

51    (1)  

Regardless of anything in the preceding provisions of this Schedule, on an

35

application for a consent order for financial relief, the court may, unless it

has reason to think that there are other circumstances into which it ought to

inquire, make an order in the terms agreed on the basis only of such

information supplied with the application as is required by rules of court.

      (2)  

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

40

discharging an order for financial relief as it applies to an application for an

order for financial relief.

      (3)  

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;

45

“order for financial relief” means an order under any of Parts 1, 2, 3

and 7.

 

 

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 11 — Consent orders and maintenance agreements

266

 

Meaning of “maintenance agreement” and “financial arrangements”

52    (1)  

In this Part “maintenance agreement” means any written agreement

between the civil partners in a civil partnership which—

(a)   

is made during the continuance or after the dissolution or annulment

of the civil partnership and contains financial arrangements, or

5

(b)   

is a separation agreement which contains no financial arrangements

but is made in a case where no other agreement in writing between

the civil partners contains financial arrangements.

      (2)  

In this Part “financial arrangements” means provisions governing the rights

and liabilities towards one another when living separately of the civil

10

partners in a civil partnership (including a civil partnership which has been

dissolved or annulled) in respect of—

(a)   

the making or securing of payments, or

(b)   

the disposition or use of any property,

           

including such rights and liabilities with respect to the maintenance or

15

education of a child (whether or not a child of the family).

      (3)  

“Education” includes training.

Validity of maintenance agreements

53         

If a maintenance agreement includes a provision purporting to restrict any

right to apply to a court for an order containing financial arrangements—

20

(a)   

that provision is void, but

(b)   

any other financial arrangements contained in the agreement—

(i)   

are not void or unenforceable as a result, and

(ii)   

unless void or unenforceable for any other reason, are

(subject to paragraphs 54 and 58) binding on the parties to the

25

agreement.

Alteration of agreements by court during lives of parties

54    (1)  

Either party to a maintenance agreement may apply to the court or, subject

to sub-paragraph (6), to a court of summary jurisdiction for an order under

this paragraph if—

30

(a)   

the maintenance agreement is for the time being subsisting, and

(b)   

each of the parties to the agreement is for the time being domiciled

or resident in Northern Ireland.

      (2)  

The court may make an order under this paragraph if it is satisfied that—

(a)   

because of a change in the circumstances in the light of which—

35

(i)   

any financial arrangements contained in the agreement were

made, or

(ii)   

financial arrangements were omitted from it,

   

the agreement should be altered so as to make different financial

arrangements or so as to contain financial arrangements, or

40

(b)   

that the agreement does not contain proper financial arrangements

with respect to any child of the family.

      (3)  

In sub-paragraph (2)(a) the reference to a change in the circumstances

includes a change foreseen by the parties when making the agreement.

 

 

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 11 — Consent orders and maintenance agreements

267

 

      (4)  

An order under this paragraph may make such alterations in the

agreement—

(a)   

by varying or revoking any financial arrangements contained in it, or

(b)   

by inserting in it financial arrangements for the benefit of one of the

parties to the agreement or of a child of the family,

5

           

as appear to the court to be just having regard to all the circumstances,

including, if relevant, the matters mentioned in paragraph 17(3).

      (5)  

The effect of the order is that the agreement is to be treated as if any

alteration made by the order had been made by agreement between the

partners and for valuable consideration.

10

      (6)  

The power to make an order under this paragraph is subject to paragraphs

55 and 56.

Restrictions on applications to and orders by courts of summary jurisdiction under paragraph

54

55    (1)  

A court of summary jurisdiction must not entertain an application under

15

paragraph 54(1) unless—

(a)   

both the parties to the agreement are resident in Northern Ireland,

and

(b)   

the court acts for a petty sessions district included in the county court

division in which at least one of the parties is resident.

20

      (2)  

A court of summary jurisdiction must not make any order on such an

application other than—

(a)   

if the agreement includes no provision for periodical payments by

either of the parties, an order inserting provision for the making by

one of the parties of periodical payments for the maintenance of—

25

(i)   

the other party, or

(ii)   

any child of the family;

(b)   

if the agreement includes provision for the making by one of the

parties of periodical payments, an order increasing or reducing the

rate of, or terminating, any of those payments.

30

Provisions relating to periodical and secured periodical payments: duration

56    (1)  

If a court decides to make an order under paragraph 54 altering an

agreement—

(a)   

by inserting provision for the making or securing by one of the

parties to the agreement of periodical payments for the maintenance

35

of the other party, or

(b)   

by increasing the rate of the periodical payments which the

agreement provides shall be made by one of the parties for the

maintenance of the other,

           

it may specify such term as it thinks fit as the term for which the payments

40

or, as the case may be, the additional payments attributable to the increase

are to be made under the altered agreement, except that the term must not

extend beyond the limits in sub-paragraphs (2) and (3).

      (2)  

The limits if the payments are not to be secured are—

(a)   

the death of either of the parties to the agreement, or

45

(b)   

the formation of a subsequent civil partnership or marriage by the

party to whom the payments are to be made.

 

 

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 11 — Consent orders and maintenance agreements

268

 

      (3)  

The limits if the payments are to be secured are—

(a)   

the death of the party to whom the payments are to be made, or

(b)   

the formation of a subsequent civil partnership or marriage by that

party.

      (4)  

Sub-paragraph (5) applies if a court decides to make an order under

5

paragraph 54 altering an agreement by—

(a)   

inserting provision for the making or securing by one of the parties

to the agreement of periodical payments for the maintenance of a

child of the family, or

(b)   

increasing the rate of the periodical payments which the agreement

10

provides shall be made or secured by one of the parties for the

maintenance of such a child.

      (5)  

The court, in deciding the term for which under the agreement as altered by

the order the payments, or the additional payments attributable to the

increase, are to be made or secured for the benefit of the child, must apply

15

paragraph 36(2) to (5) (age limits) as if the order in question were a

periodical payments or secured periodical payments order in favour of the

child.

Saving

57         

Nothing in paragraphs 53 or 56 affects—

20

(a)   

any power of a court before which any proceedings between the

parties to a maintenance agreement are brought under any other

enactment (including a provision of this Schedule) to make an order

containing financial arrangements, or

(b)   

any right of either party to apply for such an order in such

25

proceedings.

Alteration of agreements by court after death of one party

58    (1)  

This paragraph applies if—

(a)   

a maintenance agreement provides for the continuation of payments

under the agreement after the death of one of the parties, and

30

(b)   

that party (“A”) dies domiciled in Northern Ireland.

      (2)  

Subject to sub-paragraphs (4) and (5), the surviving party or A’s personal

representatives may apply to the High Court or a county court for an order

under paragraph 54 and accordingly, for the purposes of this paragraph, any

reference in that paragraph to the court includes a reference to a county

35

court (whether a civil partnership proceedings county court or not).

      (3)  

If a maintenance agreement is altered by a court on an application made

under sub-paragraph (2), the same consequences follow as if the alteration

had been made immediately before the death by agreement between the

parties and for valuable consideration.

40

      (4)  

An application under this paragraph may not, without the leave of the High

Court or a county court, be made after the end of 6 months from the date on

which representation in regard to A’s estate is first taken out.

      (5)  

A county court has jurisdiction under this paragraph only if it is shown to

the satisfaction of the court that, at the relevant date, the property included

45

in A’s net estate did not exceed £15,000 in value.

 

 

 
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