House of Commons portcullis
House of Commons
Session 2002 - 03
Internet Publications
Other Bills before Parliament

Civil Partnership Bill [HL]


Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 5 — Commencement and duration of orders under Parts 1, 2 and 3

283

 

(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

employment, or

(b)   

there are special circumstances which justify the making of the order

without complying with either or both of sub-paragraphs (1) and

(3)(b).

      (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

(5)(a).

      (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.

     (10)  

If—

(a)   

a maintenance calculation (“current calculation”) is in force with

25

respect to a child, and

(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

calculation,

           

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

effect.

     (12)  

If—

(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

have effect,

           

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

date.

 

 

Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 5 — Commencement and duration of orders under Parts 1, 2 and 3

284

 

     (13)  

“The relevant date” means the date on which the maintenance calculation

ceased to have effect.

     (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

paragraph 2(1)(a).

      (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

      (3)  

If—

(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

of the order, or

(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

enforceable even if—

 

 

Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 6 — Variation etc. of orders

285

 

(a)   

the civil partners are living with each other at the date of the making

of the order, or

(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

living with each other.

      (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

may specify.

      (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

court straight away.

Part 6

Variation etc. of orders

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

under this Part—

(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

(d).

      (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

that child.

      (3)  

Where the court has power by virtue of this paragraph to make an order for

the payment of a lump sum—

 

 

Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 6 — Variation etc. of orders

286

 

(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

      (4)  

Where—

(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.

33    (1)  

If—

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

benefit of a child,

(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

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

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

revocation of the order,

           

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.

      (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,

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),

 

 

Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 6 — Variation etc. of orders

287

 

(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.

      (2)  

If—

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

has not reached 18.

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

Part 1.

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.

36    (1)  

If—

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

order, etc.),

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).

 

 

Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 6 — Variation etc. of orders

288

 

      (2)  

Subject to sub-paragraph (4), if an application is made under sub-paragraph

(1), the clerk, after—

(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

representations,

           

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

Order.

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

1981 Order).

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)

ceases to have effect—

(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

reaches 18,

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—

 

 

Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 7 — Arrears and repayments

289

 

(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

varying—

(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.

Part 7

Arrears and repayments

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

favour it was made, and

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.

 

 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2004
Revised 7 July 2004