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 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.