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 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.