|
| |
|
(a) | the child is, or will be, or, if such an order were made without |
| |
complying with either or both of those provisions, would be— |
| |
(i) | receiving instruction at an educational establishment, or |
| |
(ii) | undergoing training for a trade, profession or vocation, |
| |
| whether or not also the child is, will be or would be, in gainful |
| 5 |
| |
(b) | there are special circumstances which justify the making of the order |
| |
without complying with either or both of sub-paragraphs (1) and |
| |
| |
(6) | Any order made under paragraph 2(1)(c) or Part 3 in favour of a child, |
| 10 |
regardless of anything in the order, ceases to have effect on the death of the |
| |
person liable to make payments under the order. |
| |
(7) | An order made under paragraph 2(1)(c) or Part 3 in favour of a child to |
| |
whom sub-paragraph (5)(a) applies ceases to have effect if the child ceases |
| |
to receive instruction or undergo training as mentioned in sub-paragraph |
| 15 |
| |
(8) | If an order made under paragraph 2(1)(c) or Part 3 ceases to have effect by |
| |
virtue of an event mentioned in sub-paragraph (7), the person to whom the |
| |
periodical payments are directed by the order to be made must give notice |
| |
of the event to the court. |
| 20 |
(9) | A person who without reasonable excuse fails to give notice as required by |
| |
sub-paragraph (8) is guilty of an offence and liable on summary conviction |
| |
to a fine not exceeding level 3 on the standard scale. |
| |
| |
(a) | a maintenance calculation (“current calculation”) is in force with |
| 25 |
| |
(b) | an application is made for an order under paragraph 2(1)(c) or Part 3 |
| |
before the end of 6 months beginning with the making of the current |
| |
| |
| the term to be specified in any such order made on that application may be |
| 30 |
expressed to begin on, or at any time after, the earliest permitted date. |
| |
(11) | “The earliest permitted date” is whichever is the later of— |
| |
(a) | the date 6 months before the application is made, or |
| |
(b) | the date on which the current calculation took effect or, where |
| |
successive maintenance calculations have been continuously in force |
| 35 |
with respect to a child, on which the first of those calculations took |
| |
| |
| |
(a) | a maintenance calculation ceases to have effect by or under any |
| |
provision of the Child Support (Northern Ireland) Order 1991 (S.I. |
| 40 |
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 order under paragraph |
| |
2(1)(c) or Part 3 in favour of a child with respect to whom that |
| |
maintenance calculation was in force immediately before it ceased to |
| 45 |
| |
| the term to be specified in any such order, or in any interim order under Part |
| |
4, made on that application, may begin with the relevant date or any later |
| |
| |
|
| |
|
| |
|
(13) | “The relevant date” means the date on which the maintenance calculation |
| |
| |
(14) | In this Schedule “maintenance calculation” means a calculation of |
| |
maintenance made under the Child Support (Northern Ireland) Order 1991 |
| |
and includes, except in circumstances prescribed for the purposes of the |
| 5 |
definition of that expression in Article 2(2) of that Order, a default or interim |
| |
maintenance decision within the meaning of that Order. |
| |
Application of paragraphs 26 and 27 to Part 2 orders |
| |
28 (1) | Subject to sub-paragraph (3), paragraph 26 applies in relation to an order |
| |
under Part 2 which requires periodical payments to be made to a civil |
| 10 |
partner for his own benefit as it applies in relation to an order under |
| |
| |
(2) | Subject to sub-paragraph (3), paragraph 27 applies in relation to an order |
| |
under Part 2 for the making of financial provision in respect of a child of the |
| |
family as it applies in relation to an order under paragraph 2(1)(c) or (d). |
| 15 |
| |
(a) | the court makes an order under Part 2 which contains provision for |
| |
the making of periodical payments, and |
| |
(b) | by virtue of paragraph 14, an application for an order under Part 1 is |
| |
treated as if it had been withdrawn, |
| 20 |
| the term which may be specified under Part 2 as the term for which the |
| |
payments are to be made may begin with the date of the making of the |
| |
application for the order under Part 1 or any later date. |
| |
Effect on certain orders of parties living together |
| |
29 (1) | Sub-paragraph (2) applies if periodical payments are required to be made to |
| 25 |
a civil partner (whether for the civil partner’s own benefit or for the benefit |
| |
of a child of the family)— |
| |
(a) | by an order made under Part 1 or 2, or |
| |
(b) | by an interim order made under Part 4 (otherwise than on an |
| |
application under Part 3). |
| 30 |
(2) | The order is enforceable even if— |
| |
(a) | the civil partners are living with each other at the date of the making |
| |
| |
(b) | if they are not living with each other at that date, they subsequently |
| |
resume living with each other; |
| 35 |
| but the order ceases to have effect if after that date the civil partners continue |
| |
to live with each other, or resume living with each other, for a continuous |
| |
period exceeding 6 months. |
| |
(3) | Sub-paragraph (4) applies if— |
| |
(a) | an order is made under Part 1 or 2 which requires periodical |
| 40 |
payments to be made to a child of the family, or |
| |
(b) | an interim order is made under Part 4 (otherwise than on an |
| |
application under Part 3) which requires periodical payments to be |
| |
made to a child of the family. |
| |
(4) | Unless the court otherwise directs, the order continues to have effect and is |
| 45 |
| |
|
| |
|
| |
|
(a) | the civil partners are living with each other at the date of the making |
| |
| |
(b) | if they are not living with each other at that date, they subsequently |
| |
resume living with each other. |
| |
(5) | An order made under Part 3, and any interim order made on an application |
| 5 |
for an order under that Part, ceases to have effect if the civil partners resume |
| |
| |
(6) | If an order made under this Schedule ceases to have effect under— |
| |
(a) | sub-paragraph (2) or (5), or |
| |
(b) | a direction given under sub-paragraph (4), |
| 10 |
| the court may, on an application made by either civil partner, make an order |
| |
declaring that the order ceased to have effect from such date as the court |
| |
| |
(7) | If an order made under this Schedule ceases to have effect under sub- |
| |
paragraph (2) or (5), the civil partners shall give notice of that fact to the |
| 15 |
| |
| |
| |
Power to vary, revoke, suspend or revive order |
| |
30 (1) | If the court has made an order for the making of periodical payments under |
| 20 |
Part 2 or 3, it may, on an application made under this Part— |
| |
(a) | vary or revoke the order, |
| |
(b) | suspend any provision of it temporarily, or |
| |
(c) | revive any provision so suspended. |
| |
(2) | If the court has made an order under Part 4, it may, on an application made |
| 25 |
| |
(a) | vary or revoke the order, |
| |
(b) | suspend any provision of it temporarily, or |
| |
(c) | revive any provision so suspended, |
| |
| except that it may not by virtue of this sub-paragraph extend the period for |
| 30 |
which the order is in force. |
| |
Powers to order lump sum on variation |
| |
31 (1) | If the court has made an order under paragraph 2(1)(a) or (c) for the making |
| |
of periodical payments, it may, on an application made under this Part, |
| |
make an order for the payment of a lump sum under paragraph 2(1)(b) or |
| 35 |
| |
(2) | If the court has made an order under Part 2 for the making of periodical |
| |
payments by a civil partner, it may, on an application made under this Part, |
| |
make an order for the payment of a lump sum by that civil partner— |
| |
(a) | to the other civil partner, or |
| 40 |
(b) | to a child of the family or to that other civil partner for the benefit of |
| |
| |
(3) | Where the court has power by virtue of this paragraph to make an order for |
| |
the payment of a lump sum— |
| |
|
| |
|
| |
|
(a) | the amount of the lump sum must not exceed the maximum amount |
| |
that may at that time be required to be paid under Part 1, but |
| |
(b) | the court may make an order for the payment of a lump sum not |
| |
exceeding that amount even if the person required to pay it was |
| |
required to pay a lump sum by a previous order under this Schedule. |
| 5 |
| |
(a) | the court has power by virtue of this paragraph to make an order for |
| |
the payment of a lump sum, and |
| |
(b) | the respondent or the applicant (as the case may be) has agreed to |
| |
pay a lump sum of an amount exceeding the maximum amount that |
| 10 |
may at that time be required to be paid under Part 1, |
| |
| the court may, regardless of sub-paragraph (3), make an order for the |
| |
payment of a lump sum of that amount. |
| |
Power to specify when order as varied is to take effect |
| |
32 | An order made under this Part which varies an order for the making of |
| 15 |
periodical payments may provide that the payments as so varied are to be |
| |
made from such date as the court may specify, except that, subject to |
| |
paragraph 33, the date must not be earlier than the date of the making of the |
| |
application under this Part. |
| |
| 20 |
(a) | there is in force an order (“the order”)— |
| |
(i) | under paragraph 2(1)(c), |
| |
(ii) | under Part 2 making provision of a kind set out in paragraph |
| |
10(1)(c) (regardless of whether it makes provision of any |
| |
other kind mentioned in paragraph 10(1)(c)), |
| 25 |
(iii) | under paragraph 16(1)(b), or |
| |
(iv) | which is an interim order under Part 4 under which the |
| |
payments are to be made to a child or to the applicant for the |
| |
| |
(b) | the order requires payments specified in it to be made to or for the |
| 30 |
benefit of more than one child without apportioning those payments |
| |
| |
(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 |
| 35 |
(d) | an application is made, before the end of 6 months beginning with |
| |
the date on which the calculation was made, for the variation or |
| |
| |
| the court may, in exercise of its powers under this Part to vary or revoke the |
| |
order, direct that the variation or revocation is to take effect from the date on |
| 40 |
which the calculation took effect or any later date. |
| |
| |
(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, |
| 45 |
(b) | on the date on which the child order became so affected there was in |
| |
force an order (“the civil partner’s order”)— |
| |
(i) | under paragraph 2(1)(a), |
| |
|
| |
|
| |
|
(ii) | under Part 2 making provision of a kind set out in paragraph |
| |
10(1)(a) (regardless of whether it makes provision of any |
| |
other kind mentioned in paragraph 10(1)(a)), |
| |
(iii) | under paragraph 16(1)(a), or |
| |
(iv) | which is an interim order under Part 4 under which the |
| 5 |
payments are to be made to the applicant (otherwise than for |
| |
the benefit of a child), and |
| |
(c) | an application is made, before the end of 6 months beginning with |
| |
the date on which the maintenance calculation was made, for the |
| |
civil partner’s order to be varied or revoked, |
| 10 |
| the court may, in exercise of its powers under this Part to vary or revoke the |
| |
civil partner’s order, direct that the variation or revocation 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 |
| |
effect or is modified by or under Article 12 of the 1991 Order. |
| 15 |
Matters to which court is to have regard in exercising powers under this Part |
| |
34 (1) | In exercising the powers conferred by this Part the court must, so far as it |
| |
appears to the court just to do so, give effect to any agreement which has |
| |
been reached between the civil partners in relation to the application. |
| |
| 20 |
(a) | there is no such agreement, or |
| |
(b) | the court decides not to give effect to the agreement, |
| |
| the court 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 |
| |
| 25 |
(3) | Those circumstances include any change in any of the matters— |
| |
(a) | to which the court was required to have regard when making the |
| |
order to which the application relates, or |
| |
(b) | in the case of an application for the variation or revocation of an |
| |
order made under Part 2 or on an appeal, to which the court would |
| 30 |
have been required to have regard if that order had been made under |
| |
| |
Variation of orders for periodical payments: further provisions |
| |
35 (1) | The power of the court under paragraphs 30 to 34 to vary an order for the |
| |
making of periodical payments includes power, if the court is satisfied that |
| 35 |
payment has not been made in accordance with the order, to exercise one of |
| |
its powers under Article 85(3)(a) to (d) of the Magistrates’ Courts (Northern |
| |
Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)). |
| |
(2) | Sub-paragraph (1) is subject to paragraph 37. |
| |
| 40 |
(a) | a court of summary jurisdiction has made an order under this |
| |
Schedule for the making of periodical payments, and |
| |
(b) | payments under the order are required to be made by any method of |
| |
payment falling within Article 85(7) of the 1981 Order (standing |
| |
| 45 |
| an application may be made under this sub-paragraph to the clerk of petty |
| |
sessions for the order to be varied as mentioned in sub-paragraph (2). |
| |
|
| |
|
| |
|
(2) | Subject to sub-paragraph (4), if an application is made under sub-paragraph |
| |
| |
(a) | serving written notice of the application on the respondent, and |
| |
(b) | allowing the respondent, within the period of 14 days from the date |
| |
of the serving of that notice, an opportunity to make written |
| 5 |
| |
| may vary the order to provide that payments under the order are to be made |
| |
to the collecting officer. |
| |
(3) | The clerk may proceed with an application under sub-paragraph (1) even if |
| |
the respondent has not received written notice of the application. |
| 10 |
(4) | If an application has been made under sub-paragraph (1), the clerk may, if |
| |
he considers it inappropriate to exercise his power under sub-paragraph (2), |
| |
refer the matter to the court which, subject to paragraph 37, may vary the |
| |
order by exercising one of its powers under Article 85(3)(a) to (d) of the 1981 |
| |
| 15 |
37 (1) | Before varying the order by exercising one of its powers under Article |
| |
85(3)(a) to (d) of the 1981 Order, the court must have regard to any |
| |
representations made by the parties to the application. |
| |
(2) | If the court does not propose to exercise its power under Article 85(3)(c) or |
| |
(d) of the 1981 Order, the court must, unless upon representations expressly |
| 20 |
made in that behalf by the person to whom payments under the order are |
| |
required to be made it is satisfied that it is undesirable to do so, exercise its |
| |
power under Article 85(5)(b). |
| |
38 (1) | Article 85(5) of the 1981 Order (power of court to order that account be |
| |
opened) applies for the purposes of paragraphs 35 and 36(4) as it applies for |
| 25 |
the purposes of Article 85. |
| |
(2) | None of the powers of the court, or of the clerk of petty sessions, conferred |
| |
by paragraphs 35 to 37 and sub-paragraph (1) is exercisable in relation to an |
| |
order under this Schedule for the making of periodical payments which is |
| |
not a qualifying maintenance order (within the meaning of Article 85 of the |
| 30 |
| |
Persons who may apply under this Part |
| |
39 | An application under paragraph 30, 31 or 36 may be made— |
| |
(a) | if it is for the variation or revocation of an order under Part 1, 2, 3 or |
| |
4 for periodical payments, by either civil partner, and |
| 35 |
(b) | if it is for the variation of an order under paragraph 2(1)(c) or Part 2 |
| |
or 3 for periodical payments to or in respect of a child, also by the |
| |
child himself, if he has reached 16. |
| |
Revival of orders for periodical payments |
| |
40 (1) | If an order made by the court under this Schedule for the making of |
| 40 |
periodical payments to or in respect of a child (other than an interim order) |
| |
| |
(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 he |
| |
| 45 |
| the child may apply to the court for an order for its revival. |
| |
(2) | If on such an application it appears to the court that— |
| |
|
| |
|
| |
|
(a) | the child is, will be or (if an order were made under this sub- |
| |
paragraph) would be receiving instruction at an educational |
| |
establishment or undergoing training for a trade, profession or |
| |
vocation, whether or not while in gainful employment, or |
| |
(b) | there are special circumstances which justify the making of an order |
| 5 |
under this sub-paragraph, |
| |
| the court may by order to revive the order from such date as the court may |
| |
specify, not being earlier than the date of the making of the application. |
| |
(3) | Any order revived under this paragraph may be varied or revoked under |
| |
paragraphs 30 to 34 in the same way as it could have been varied or revoked |
| 10 |
had it continued in being. |
| |
Variation of instalments or remission of lump sum |
| |
41 (1) | If in the exercise of its powers under Article 97 of the 1981 Order the court |
| |
orders that a lump sum required to be paid under this Schedule is to be paid |
| |
by instalments, the court, on an application made by either the person liable |
| 15 |
to pay or the person entitled to receive that sum, may vary that order by |
| |
| |
(a) | the number of instalments payable, |
| |
(b) | the amount of any instalment payable, and |
| |
(c) | the date on which any instalment becomes payable. |
| 20 |
(2) | On the hearing of a complaint for the enforcement, revocation, suspension |
| |
or variation of an order under this Schedule which provides for the payment |
| |
of a lump sum the court may remit the whole or any part of that sum. |
| |
Supplementary provisions with respect to variation and revocation of orders |
| |
42 | The powers of a court of summary jurisdiction to revoke, suspend, revive or |
| 25 |
vary an order for the periodical payment of money and the power of the |
| |
clerk of petty sessions to vary such an order under Article 86 of the 1981 |
| |
Order do not apply in relation to an order made under this Schedule. |
| |
| |
| 30 |
Enforcement etc. of orders for payment of money |
| |
43 | Article 36 of the Domestic Proceedings (Northern Ireland) Order 1980 (S.I. |
| |
1980/563 (N.I. 5)) applies in relation to orders under this Schedule as it |
| |
applies in relation to orders under that Order. |
| |
Orders for repayment after cessation of order because of subsequent civil partnership etc. |
| 35 |
44 (1) | Sub-paragraphs (3) and (4) apply if— |
| |
(a) | an order made under paragraph 2(1)(a) or Part 2 or 3 has, under |
| |
paragraph 26(2), ceased to have effect because of the formation of a |
| |
subsequent civil partnership or marriage by the party (“R”) in whose |
| |
| 40 |
(b) | the person liable to make payments under the order (“P”) made |
| |
payments in accordance with it in respect of a relevant period in the |
| |
mistaken belief that the order was still subsisting. |
| |
|
| |
|