|
| |
|
(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 |
| |
| |
(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— |
| |
| 10 |
| |
| 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 |
| |
(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 |
| |
(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 |
| |
(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 |
| |
|
| |
|
| |
|
effect from a date earlier than that on which the order for variation or |
| |
| |
| |
| |
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 |
| |
| |
(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. |
| |
| |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
(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 |
| |
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 |
| |
| 25 |
(2) | “Relevant period” means a period after the date of the formation of the civil |
| |
| |
(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 |
| |
(i) | order the respondent to pay to the applicant such lesser sum |
| |
| |
(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 |
| |
| |
(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 |
| |
(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 |
| |
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 |
| |
| |
(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 |
| |
| |
(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. |
| |
| 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.)). |
| |
| |
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. |
| |
| |
| “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 |
| |
| |
|
| |
|
| |
|
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 |
| |
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 |
| |
| 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 |
| |
| |
(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. |
| |
|
| |
|
| |
|
(4) | An order under this paragraph may make such alterations in the |
| |
| |
(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 |
| |
| |
Restrictions on applications to and orders by courts of summary jurisdiction under paragraph |
| |
| |
55 (1) | A court of summary jurisdiction must not entertain an application under |
| 15 |
| |
(a) | both the parties to the agreement are resident in Northern Ireland, |
| |
| |
(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 |
| |
| |
(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 |
| |
(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 |
| |
| |
(a) | by inserting provision for the making or securing by one of the |
| |
parties to the agreement of periodical payments for the maintenance |
| 35 |
| |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
| |
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 |
| |
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. |
| |
|
| |
|