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 12 — Miscellaneous and supplementary
269

      (6)
A’s personal representatives are not liable for having distributed any part of
A’s estate after the end of the 6 month period on the ground that they ought
to have taken into account the possibility that a court might allow an
application by virtue of this paragraph to be made by the surviving party
after that period.
5
      (7)
Sub-paragraph (6) 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.
      (8)
Paragraph 45(6) applies for the purposes of sub-paragraph (4) as it applies
for the purposes of paragraph 45(3).
10
      (9)
In sub-paragraph (5)—
“the property included in A’s net estate” means all property of which
A had power to dispose by will, otherwise than by virtue of a
special power of appointment, less the amount of A’s funeral,
testamentary and administration expenses, debts and liabilities,
15
including any inheritance tax payable out of A’s estate on A’s
death;
“relevant date” means the date of A’s death.
Part 12
Miscellaneous and supplementary
20
Avoidance of transactions intended to prevent or reduce financial relief
59    (1)
This paragraph applies if proceedings for relief (“financial relief”) are
brought by one person (“A”) against another (“B”) under Part 1, 2, 3, 6, 7 or
9 (other than paragraph 45(2)), or paragraph 54.
      (2)
If the court is satisfied, on an application by A, that B is, with the intention
25
of defeating A’s claim for financial relief, about to—
(a)
make any disposition, or
(b)
transfer out of the jurisdiction or otherwise deal with any property,

it may make such order as it thinks fit for restraining B from doing so or
otherwise for protecting the claim.
30
      (3)
If the court is satisfied, on an application by A, that—
(a)
B has, with the intention of defeating A’s claim for financial relief,
made a reviewable disposition, and
(b)
if the disposition were set aside, financial relief or different financial
relief would be granted to A,
35

it may make an order setting aside the disposition.
      (4)
If the court is satisfied, on an application by A in a case where an order has
been obtained by A against B under any of the provisions mentioned in sub-
paragraph (1), that B has, with the intention of defeating A’s claim for
financial relief, made a reviewable disposition, it may make an order setting
40
aside the disposition.
      (5)
An application for the purposes of sub-paragraph (3) must be made in the
proceedings for the financial relief in question.
      (6)
If the court makes an order under sub-paragraph (3) or (4) setting aside a
disposition it must give such consequential directions as it thinks fit for
45

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 12 — Miscellaneous and supplementary
270

giving effect to the order (including directions requiring the making of any
payments or the disposal of any property).
60    (1)
Any reference in paragraph 59 to defeating A’s claim for financial relief is
to—
(a)
preventing financial relief from being granted to A, or to A for the
5
benefit of a child of the family,
(b)
reducing the amount of any financial relief which might be so
granted, or
(c)
frustrating or impeding the enforcement of any order which might
be or has been made at A’s instance under any of the provisions
10
mentioned in paragraph 59(1).
      (2)
In paragraph 59 and this paragraph “disposition”—
(a)
does not include any provision contained in a will or codicil, but
(b)
subject to paragraph (a), includes any conveyance, assurance or gift
of property of any description (whether made by an instrument or
15
otherwise).
      (3)
Any disposition made by B (whether before or after the commencement of
the proceedings for financial relief) is a reviewable disposition for the
purposes of paragraph 59(3) and (4) unless it was made—
(a)
for valuable consideration (other than formation of a civil
20
partnership), and
(b)
to a person who, at the time of the disposition, acted in relation to it
in good faith and without notice of any intention on B’s part to defeat
A’s claim for financial relief.
      (4)
If an application is made under paragraph 59 with respect to a disposition
25
which took place less than 3 years before the date of the application or with
respect to a disposition or other dealing with property which is about to take
place and the court is satisfied—
(a)
in a case falling within paragraph 59(2) or (3), that the disposition or
other dealing would (apart from paragraph 59) have the
30
consequence of defeating A’s claim for financial relief, or
(b)
in a case falling within paragraph 59(4), that the disposition has had
the consequence of defeating A’s claim for financial relief,

it is presumed, unless the contrary is shown, that the person who disposed
of or is about to dispose of or deal with the property did so or, as the case
35
may be, is about to do so, with the intention of defeating A’s claim for
financial relief.
61    (1)
An order under paragraph 59(2), to the extent that it restrains B from making
a disposition of any land in Northern Ireland which is specified in the
order—
40
(a)
creates on the land a statutory charge, and
(b)
subject to section 88 of the 1970 Act (statutory charge to be void
against purchaser in certain circumstances), renders liable to be set
aside by the court at the instance of A any disposition of the land in
contravention of the order.
45
      (2)
In this paragraph and paragraph 62—
“disposition” has the same meaning as in paragraphs 59 and 60;
“1970 Act” means the Land Registration Act (Northern Ireland) 1970
(c. 18 (N.I.));
“statutory charge” has the same meaning as in the 1970 Act.
50

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 12 — Miscellaneous and supplementary
271

      (3)
Nothing in sub-paragraph (1)(b) or section 88(1) of the 1970 Act affects any
power of the court to set aside a disposition under paragraph 59(3) or (4).
62    (1)
The registration of a statutory charge created under paragraph 61(1)(a) shall
be effective until—
(a)
the expiration of 1 year from the date of its registration or of the last
5
renewal of its registration, unless the registration is renewed or
further renewed before the expiration of that period, or
(b)
the court orders that it is to cease to have effect.
      (2)
When the registration ceases to have effect the Registrar of Titles may cancel
it.
10
      (3)
Nothing in this paragraph affects any provision of section 91 of the 1970 Act
(cancellation and modification of statutory charges).
      (4)
An application for the renewal, under sub-paragraph (1)(a), of the
registration of a charge may be made in the same manner as the application
for the original registration.
15
Direction for settlement of instrument for securing payments or effecting property adjustment
63    (1)
This paragraph applies if the court decides to make—
(a)
an order under Part 1 or 7 requiring any payments to be secured, or
(b)
a property adjustment order,

or if it gives directions for the disposal of any property.
20
      (2)
The court may direct that the matter be referred to a conveyancing counsel
appointed by the court for him to settle a proper instrument to be executed
by all necessary parties.
      (3)
If the order referred to in sub-paragraph (1) is to be made in proceedings for
a dissolution, nullity or separation order, the court may, if it thinks fit, defer
25
the making of the dissolution, nullity or separation order until the
instrument has been duly executed.
Settlement, etc., made in compliance with a property adjustment order may be avoided on
bankruptcy of settlor
64
The fact that—
30
(a)
a settlement, or
(b)
a transfer of property,

had to be made in order to comply with a property adjustment order does
not prevent the settlement or transfer from being a transaction in respect of
which an order may be made under Article 312 or 313 of the Insolvency
35
(Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) (transfers at an
undervalue and preferences).
Payments, etc., under order made in favour of person suffering from mental disorder
65    (1)
This paragraph applies if—
(a)
the court makes an order under this Schedule requiring—
40
(i)
payments (including a lump sum payment) to be made, or
(ii)
property to be transferred,

to a civil partner, and

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 12 — Miscellaneous and supplementary
272

(b)
the court is satisfied that the person in whose favour the order is
made is incapable, because of mental disorder, of managing and
administering his or her property and affairs.
      (2)
“Mental disorder” has the same meaning as in the Mental Health (Northern
Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)).
5
      (3)
Subject to any order, direction or authority made or given in relation to that
person under Part 8 of the 1986 Order, the court may order the payments to
be made, or as the case may be, the property to be transferred, to such
persons having charge of that person as the court may direct.
Appeals relating to pension sharing orders which have taken effect
10
66    (1)
Sub-paragraphs (2) and (3) apply if an appeal against a pension sharing
order is begun on or after the day on which the order takes effect.
      (2)
If the pension sharing order relates to a person’s rights under a pension
arrangement, the appeal court may not set aside or vary the order if the
person responsible for the pension arrangement has acted to his detriment
15
in reliance on the order taking effect.
      (3)
If the pension sharing order relates to a person’s shareable state scheme
rights, the appeal court may not set aside or vary the order if the Department
for Social Development has acted to its detriment in reliance on the taking
effect of the order.
20
      (4)
In determining for the purposes of sub-paragraph (2) or (3) whether a person
or the Department has acted to his or its detriment in reliance on the taking
effect of the order, the appeal court may disregard any detriment which in
its opinion is insignificant.
      (5)
Where sub-paragraph (2) or (3) applies, the appeal court may make such
25
further orders (including one or more pension sharing orders) as it thinks fit
for the purpose of putting the parties in the position it considers appropriate.
      (6)
Paragraph 14 only applies to a pension sharing order under this paragraph
if the decision of the appeal court can itself be the subject of an appeal.
      (7)
In sub-paragraph (2), the reference to the person responsible for the pension
30
arrangement is to be read in accordance with paragraph 24(3).
Interpretation
67    (1)
References in this Schedule to—
(a)
periodical payments orders,
(b)
secured periodical payments orders, and
35
(c)
orders for the payment of a lump sum,

are references to such of the orders that may be made under Parts 1 and 7
(other than interim orders) as are relevant in the context of the reference in
question.
      (2)
In this Schedule “child of the family”, in relation to two people who are the
40
civil partners of each other, means—
(a)
a child of both of them, and
(b)
any other child, other than a child placed with the civil partners as
foster parents by an authority or a voluntary organisation, who has
been treated by both the civil partners as a child of their family.
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Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 1 — Failure to maintain etc.: financial provision
273

      (3)
In sub-paragraph (2) “authority” and “voluntary organisation” have the
same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/
755 (N.I. 2)).
      (4)
In this Schedule “the court” has the meaning given by section 183.
      (5)
References in this Schedule to a subsequent civil partnership include a civil
5
partnership which is by law void or voidable.
      (6)
References in this Schedule to a subsequent marriage include a marriage
which is by law void or voidable.
Schedule 17
Section 190(3)

Financial relief in court of summary jurisdiction etc.: Northern Ireland
10
Part 1
Failure to maintain etc.: financial provision
Circumstances in which orders under this Part may be made
1     (1)
On an application to it by one of the civil partners, the court may make any
one or more of the orders set out in paragraph 2 if it is satisfied that the other
15
civil partner—
(a)
has failed to provide reasonable maintenance for the applicant,
(b)
has failed to provide, or to make a proper contribution towards,
reasonable maintenance for any child of the family,
(c)
has behaved in such a way that the applicant cannot reasonably be
20
expected to live with the respondent, or
(d)
has deserted the applicant.
      (2)
The power of the court under sub-paragraph (1) is subject to the following
provisions of this Schedule.
The orders: periodical and secured periodical payments and lump sums
25
2     (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 pay to the applicant such lump
sum as may be specified;
30
(c)
an order that the respondent must make—
(i)
to the applicant for the benefit of a child of the family to
whom the application relates, or
(ii)
to a child of the family to whom the application relates, such
periodical payments for such term as may be specified;
35
(d)
an order that the respondent must pay such lump sum as may be
specified—
(i)
to the applicant for the benefit of a child of the family to
whom the application relates, or
(ii)
to a child of the family to whom the application relates.
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Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 1 — Failure to maintain etc.: financial provision
274

      (2)
The amount of a lump sum specified under sub-paragraph (1)(b) or (d) must
not exceed—
(a)
£1,000, or
(b)
such larger amount as the Lord Chancellor may from time to time by
order fix for the purposes of this sub-paragraph.
5
      (3)
The power to make an order 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)
An order under sub-paragraph (2) is subject to annulment in pursuance of a
resolution of either House of Parliament in the same manner as a statutory
10
instrument; and section 5 of the Statutory Instruments Act 1946 (c. 36)
applies accordingly.
      (5)
“Specified” means specified in the order.
Particular provision that may be made by lump sum orders
3     (1)
An order under this Part for the payment of a lump sum may be made for
15
the purpose of enabling any liability or expenses reasonably incurred in
maintaining the applicant or any child of the family to whom the application
relates before the making of the order to be met.
      (2)
Sub-paragraph (1) does not restrict the power to make the orders set out in
paragraph 2(1)(b) and (d).
20
Matters to which court is to have regard in exercising its powers under this Part - general
4
If an application is made for an order under this Part, the court, in
deciding—
(a)
whether to exercise its powers under this Part, and
(b)
if so, in what way,
25

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.
Particular matters to be taken into account when exercising powers in relation to civil partners
5     (1)
This paragraph applies in relation to the exercise by the court of its power to
30
make an order by virtue of paragraph 2(1)(a) or (b).
      (2)
The court must in particular have regard to—
(a)
the income, earning capacity, property and other financial resources
which each civil partner—
(i)
has, or
35
(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;
(b)
the financial needs, obligations and responsibilities which each civil
40
partner has or is likely to have in the foreseeable future;
(c)
the standard of living enjoyed by the civil partners before the
occurrence of the conduct which is alleged as the ground of the
application;
(d)
the age of each civil partner and the duration of the civil partnership;
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Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 1 — Failure to maintain etc.: financial provision
275

(e)
any physical or mental disability of either civil partner;
(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;
(g)
the conduct of each civil partner, if that conduct is such that it would
5
in the opinion of the court be inequitable to disregard it.
Particular matters to be taken into account when exercising powers in relation to children
6     (1)
This paragraph applies in relation to the exercise by the court of its power to
make an order by virtue of paragraph 2(1)(c) or (d).
      (2)
The court must in particular have regard to—
10
(a)
the financial needs of the child;
(b)
the income, earning capacity (if any), property and other financial
resources of the child;
(c)
any physical or mental disability of the child;
(d)
the standard of living enjoyed by the family before the occurrence of
15
the conduct which is alleged as the ground of the application;
(e)
the way in which the child was being and in which the civil partners
expected the child to be educated or trained;
(f)
the considerations mentioned in relation to the civil partners in
paragraph 5(2)(a) and (b).
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      (3)
In relation to the exercise of its power to make an order in favour of a child
of the family who is not the respondent’s child, the court must also have
regard to—
(a)
whether the respondent has assumed any responsibility for the
child’s maintenance,
25
(b)
if so, the extent to which, and the basis on which, the respondent
assumed that responsibility and the length of time during which the
respondent discharged that responsibility;
(c)
whether in assuming and discharging that responsibility the
respondent did so knowing that the child was not the respondent’s
30
child;
(d)
the liability of any other person to maintain the child.
Reconciliation
7     (1)
If before the hearing of any evidence in proceedings on an application for an
order under this Part a statement is made to the court by or on behalf of the
35
civil partners showing a possibility of reconciliation between them, the court
must adjourn the proceedings for such period as it thinks fit.
      (2)
If at any stage of the proceedings on an application for an order under this
Part it appears to the court that there is a reasonable possibility of a
reconciliation between the civil partners, the court may adjourn the
40
proceedings for such period as it thinks fit to enable attempts to be made to
effect a reconciliation.
      (3)
If the court adjourns any proceedings under sub-paragraph (1) or (2), it may
request that—
(a)
a suitably qualified person acting under arrangements made by the
45
Department of Health, Social Services and Public Safety, or