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 7 — Arrears and repayments

290

 

      (2)  

“Relevant period” means a period after the date of the formation of the

subsequent civil partnership or marriage.

      (3)  

No proceedings in respect of a cause of action arising out of the

circumstances mentioned in sub-paragraph (1)(a) and (b) is maintainable by

P (or P’s personal representatives) against R (or R’s personal

5

representatives).

      (4)  

But on an application made 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 an application made under this

paragraph to pay to the applicant a sum equal to the amount of the

10

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,

may—

(i)   

order the respondent to pay to the applicant such lesser sum

as it thinks fit, or

15

(ii)   

dismiss the application.

      (5)  

An order under this paragraph for the payment of any sum may provide for

the payment of that sum by instalments of such amount as may be specified

in the order.

      (6)  

An application under this paragraph—

20

(a)   

may be made in proceedings in the High Court for leave to enforce,

or in proceedings in the High Court or a court of summary

jurisdiction for the enforcement of, the payment of arrears under an

order made under paragraph 2(1)(a) or Part 2 or 3, but

(b)   

if not made in such proceedings, must be made to a county court,

25

           

and accordingly references in this paragraph to the court are references to

the High Court or a county court or a court of summary jurisdiction, as the

circumstances require.

      (7)  

The jurisdiction conferred on a county court by this paragraph is exercisable

by a county court even though, because of the amount claimed in an

30

application under this paragraph, the jurisdiction would not but for this sub-

paragraph be exercisable by a county court.

      (8)  

A person dissatisfied with an order made by a county court in the exercise

of the jurisdiction conferred by this paragraph or with the dismissal of any

application instituted by him under the provisions of this paragraph shall be

35

entitled to appeal from the order or from the dismissal as if the order or

dismissal had been made in exercise of the jurisdiction conferred by Part 3

of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3))

and the appeal brought under Part 6 of that Order, and Articles 61 (cases

stated by county court judge) and 62 (cases stated by High Court on appeal

40

from county court) of that Order shall apply accordingly.

      (9)  

Subject to sub-paragraph (10), the collecting officer of a court of summary

jurisdiction to whom any payments under an order made under paragraph

2(1)(a) or Part 2 or 3, or under an attachment of earnings order made to

secure payments under the first-mentioned order, are required to be made

45

is not liable—

(a)   

for any act done by him in pursuance of the first-mentioned order

after the date on which that order or a provision of it ceased to have

effect because of the formation of a subsequent civil partnership or

marriage by the person entitled to payments under it, and

50

 

 

Civil Partnership Bill [HL]
Schedule 17 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 8 — Supplementary

291

 

(b)   

for any act done by him after that date in accordance with any

statutory provision specifying how payments made to him in

compliance with the attachment of earnings order are to be dealt

with.

     (10)  

Sub-paragraph (9) applies if (but only if) the act—

5

(a)   

was one which he would have been under a duty to do had the order

under paragraph 2(1)(a) or Part 2 or 3 not ceased to have effect, and

(b)   

was done before notice in writing of the formation of the subsequent

civil partnership or marriage was given to him by or on behalf of—

(i)   

the person entitled to payments under the order,

10

(ii)   

the person liable to make payments under it, or

(iii)   

the personal representatives of either of them.

     (11)  

In this paragraph—

“collecting officer” means the officer mentioned in Article 85(2) or (3)

of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/

15

1675 (N.I. 26)), and

“statutory provision” has the meaning given by section 1(f) of the

Interpretation Act (Northern Ireland) 1954 (c. 33(N.I.)).

Part 8

Supplementary

20

Restrictions on making of orders under this Schedule: welfare of children

45         

If—

(a)   

an application is made by a civil partner for an order under Part 1, 2

or 3, and

(b)   

there is a child of the family who is under 18,

25

           

the court must not dismiss or make a final order on the application until it

has decided whether to exercise any of its powers under the Children

(Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) with respect to the

child.

Application of certain provisions of the Domestic Proceedings (Northern Ireland) Order 1980

30

46         

Articles 30 to 35 of the Domestic Proceedings (Northern Ireland) Order 1980

(S.I. 1980/563 (N.I. 5)) apply for the purposes of this Schedule as they apply

for the purposes of that Order.

Interpretation

47    (1)  

In this Schedule “child of the family”, in relation to two people who are civil

35

partners of each other, means—

(a)   

a child of both of them, and

(b)   

any other child, other than a child placed with them 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.

40

      (2)  

In sub-paragraph (1) “authority” and “voluntary organisation” have the

same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/

755 (N.I. 2)).

 

 

Civil Partnership Bill [HL]
Schedule 18 — Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

292

 

      (3)  

In any provision of this Schedule “the court” (except where the context

otherwise requires) means a court of summary jurisdiction which by virtue

of this Schedule or of rules of court has jurisdiction for the purposes of that

provision.

      (4)  

References in this Schedule to a subsequent civil partnership include a civil

5

partnership which is by law void or voidable.

      (5)  

References in this Schedule to a subsequent marriage include a marriage

which is by law void or voidable.

Schedule 18

Section 190(4)

 

Financial relief in Northern Ireland after overseas dissolution etc. of a civil

10

partnership

Part 1

Financial relief

Part applies where civil partnership has been dissolved etc. overseas

1     (1)  

This Part of this Schedule applies where—

15

(a)   

a civil partnership has been dissolved or annulled, or the civil

partners have been legally separated, by means of judicial or other

proceedings in an overseas country, and

(b)   

the dissolution, annulment or legal separation is entitled to be

recognised as valid in Northern Ireland.

20

      (2)  

This Part of this Schedule applies even if the date of the dissolution,

annulment or legal separation is earlier than the date on which the Part

comes into force.

      (3)  

In this Schedule “overseas country” means a country or territory outside the

United Kingdom, the Channel Islands and the Isle of Man.

25

      (4)  

In this Part of this Schedule “child of the family” means—

(a)   

a child of both of the civil partners, and

(b)   

any other child, other than a child placed with them as foster parents

or by an authority or voluntary organisation, who has been treated

by both the civil partners as a child of their family.

30

      (5)  

In sub-paragraph (4) “authority” and “voluntary organisation” have the

same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/

755 (N.I. 2)).

Either civil partner may make application for financial relief

2     (1)  

Either of the civil partners may make an application to the court for an order

35

under paragraph 9 or 13.

      (2)  

The rights conferred by sub-paragraph (1) are subject to—

(a)   

paragraph 3 (civil partner may not apply after forming subsequent

civil partnership etc.), and

(b)   

paragraph 4 (application may not be made until leave to make it has

40

been granted).

 

 

Civil Partnership Bill [HL]
Schedule 18 — Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

293

 

      (3)  

An application for an order under paragraph 9 or 13 must be made in a

manner prescribed by rules of court.

No application after formation of subsequent civil partnership or marriage

3     (1)  

If—

(a)   

the civil partnership has been dissolved or annulled, and

5

(b)   

after the dissolution or annulment, one of the civil partners forms a

subsequent civil partnership or marriage,

           

that civil partner shall not be entitled to make, in relation to the civil

partnership, an application for an order under paragraph 9 or 13.

      (2)  

The reference in sub-paragraph (1) to the forming of a subsequent civil

10

partnership or marriage includes a reference to the forming of a civil

partnership or marriage which is by law void or voidable.

Leave of court required for making of application

4     (1)  

No application for an order under paragraph 9 or 13 shall be made unless

the leave of the court has been obtained in accordance with rules of court.

15

      (2)  

The court shall not grant leave under this paragraph unless it considers that

there is substantial ground for the making of an application for such an

order.

      (3)  

The court may grant leave under this paragraph notwithstanding that an

order has been made by a court in a country outside Northern Ireland

20

requiring the other civil partner to make any payment, or transfer any

property, to the applicant or to a child of the family.

      (4)  

Leave under this paragraph may be granted subject to such conditions as the

court thinks fit.

Interim orders for maintenance

25

5     (1)  

Where—

(a)   

leave is granted under paragraph 4, and

(b)   

it appears to the court that the civil partner who applied for leave, or

any child of the family, is in immediate need of financial assistance,

           

the court may, subject to sub-paragraph (4), make an interim order for

30

maintenance.

      (2)  

An interim order for maintenance is one requiring the other civil partner to

make—

(a)   

to the applicant, or

(b)   

to the child,

35

           

such periodical payments as the court thinks reasonable for such term as the

court thinks reasonable.

      (3)  

The term must be one—

(a)   

beginning not earlier than the date of the grant of leave, and

(b)   

ending with the date of the determination of the application made

40

under the leave.

      (4)  

If it appears to the court that the court will, in the event of an application

being made under the leave, have jurisdiction to entertain the application

 

 

Civil Partnership Bill [HL]
Schedule 18 — Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

294

 

only under paragraph 7(4), the court shall not make an interim order under

this paragraph.

      (5)  

An interim order under this paragraph may be made subject to such

conditions as the court thinks fit.

Paragraphs 7 and 8 apply where application made for relief under paragraph 9 or 13

5

6          

Paragraphs 7 and 8 apply where—

(a)   

one of the civil partners has been granted leave under paragraph 4,

and

(b)   

acting under the leave, that civil partner makes an application for an

order under paragraph 9 or 13.

10

Jurisdiction of the court

7     (1)  

The court shall have jurisdiction to entertain the application only if one or

more of the following jurisdictional requirements is satisfied.

      (2)  

The first requirement is that either of the civil partners—

(a)   

was domiciled in Northern Ireland on the date when the leave was

15

applied for, or

(b)   

was domiciled in Northern Ireland on the date when the dissolution,

annulment or legal separation took effect in the overseas country in

which it was obtained.

      (3)  

The second is that either of the civil partners—

20

(a)   

was habitually resident in Northern Ireland throughout the period of

one year ending with the date when the leave was applied for, or

(b)   

was habitually resident in Northern Ireland throughout the period of

one year ending with the date on which the dissolution, annulment

or legal separation took effect in the overseas country in which it was

25

obtained.

      (4)  

The third is that either or both of the civil partners had, at the date when the

leave was applied for, a beneficial interest in possession in a dwelling-house

situated in Northern Ireland which was at some time during the civil

partnership a civil partnership home of the civil partners.

30

      (5)  

In sub-paragraph (4) “possession” includes receipt of, or the right to receive,

rents and profits, but here “rent” does not include mortgage interest.

Duty of the court to consider whether Northern Ireland is appropriate venue for application

8     (1)  

Before deciding the application, the court must consider whether in all the

circumstances of the case it would be appropriate for an order of the kind

35

applied for to be made by a court in Northern Ireland.

      (2)  

If the court is not satisfied that it would be appropriate, the court shall

dismiss the application.

      (3)  

The court must, in particular, have regard to the following matters—

(a)   

the connection which the civil partners have with Northern Ireland;

40

(b)   

the connection which the civil partners have with the country in

which the civil partnership was dissolved or annulled or in which

they were legally separated;

(c)   

the connection which the civil partners have with any other country

outside Northern Ireland;

45

 

 

Civil Partnership Bill [HL]
Schedule 18 — Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

295

 

(d)   

any financial benefit which, in consequence of the dissolution,

annulment or legal separation—

(i)   

the applicant, or

(ii)   

a child of the family,

   

has received, or is likely to receive, by virtue of any agreement or the

5

operation of the law of a country outside Northern Ireland;

(e)   

in a case where an order has been made by a court in a country

outside Northern Ireland requiring the other civil partner— 

(i)   

to make any payment, or

(ii)   

to transfer any property,

10

   

for the benefit of the applicant or a child of the family, the financial

relief given by the order and the extent to which the order has been

complied with or is likely to be complied with;

(f)   

any right which the applicant has, or has had, to apply for financial

relief from the other civil partner under the law of any country

15

outside Northern Ireland and, if the applicant has omitted to exercise

that right, the reason for that omission;

(g)   

the availability in Northern Ireland of any property in respect of

which an order under this Schedule in favour of the applicant could

be made;

20

(h)   

the extent to which any order made under this Schedule is likely to

be enforceable;

(i)   

the length of time which has elapsed since the date of the dissolution,

annulment or legal separation.

Orders for financial provision, property adjustment and pension sharing

25

9     (1)  

Sub-paragraphs (2) and (3) apply where one of the civil partners has made

an application for an order under this paragraph.

      (2)  

If the civil partnership has been dissolved or annulled, the court may on the

application make any one or more of the orders which it could make under

Part 1, 2 or 3 of Schedule 16 (financial provision, property adjustment and

30

pension sharing) if a dissolution order or nullity order had been made in

respect of the civil partnership under Chapter 2 of Part 4 of this Act.

      (3)  

If the civil partners have been legally separated, the court may on the

application make any one or more of the orders which it could make under

Part 1 or 2 of Schedule 16 (financial provision and property adjustment) if a

35

separation order had been made in respect of the civil partners under

Chapter 2 of Part 4 of this Act.

      (4)  

The powers under sub-paragraphs (2) and (3) are subject to paragraph 11.

Matters to which court is to have regard in exercising its powers under paragraph 9

10    (1)  

The court, in deciding—

40

(a)   

whether to exercise its powers under paragraph 9, and

(b)   

if so, in what way,

           

must act in accordance with this paragraph.

      (2)  

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

45

has not reached 18.

 

 

Civil Partnership Bill [HL]
Schedule 18 — Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief

296

 

      (3)  

The court, in exercising its powers under paragraph 9 in relation to one of

the civil partners—

(a)   

must in particular have regard to the matters mentioned in

paragraph 16(2) of Schedule 16, and

(b)   

shall be under duties corresponding to those imposed by sub-

5

paragraphs (2) and (3) of paragraph 18 of that Schedule (duties to

consider termination of financial obligations) where it decides to

exercise under paragraph 9 powers corresponding to the powers

referred to in those sub-paragraphs.

      (4)  

The matters to which the court is to have regard under sub-paragraph

10

(3)(a)—

(a)   

so far as relating to paragraph 16(2)(a) of Schedule 16 (regard to be

had to financial resources), include any benefits under a pension

arrangement which either of the civil partners has or is likely to have

(whether or not in the foreseeable future), and

15

(b)   

so far as relating to paragraph 16(2)(h) of that Schedule (regard to be

had to benefits that cease to be acquirable), include any benefits

under a pension arrangement which, because of the dissolution or

annulment of the civil partnership, one of the civil partners will lose

the chance of acquiring.

20

      (5)  

The court, in exercising its powers under paragraph 9 in relation to a child

of the family, must in particular have regard to the matters mentioned in

paragraph 17(2) of Schedule 16.

      (6)  

The court, in exercising its powers under paragraph 9 against a civil partner

(“A”) in favour of a child of the family who is not A’s child, must also have

25

regard to the matters mentioned in paragraph 17(3) of Schedule 16.

      (7)  

Where an order has been made by a court outside Northern Ireland for—

(a)   

the making of payments, or

(b)   

the transfer of property,

           

by one of the civil partners, the court in considering in accordance with this

30

paragraph the financial resources of the other civil partner, or of a child of

the family, shall have regard to the extent to which that order has been

complied with or is likely to be complied with.

      (8)  

In this paragraph—

(a)   

“pension arrangement” has the same meaning as in Part 3 of

35

Schedule 16, and

(b)   

references to benefit under a pension arrangement include any

benefits by way of pension, whether under a pension arrangement or

not.

Restriction of powers under paragraph 9 where jurisdiction depends on civil partnership home

40

in Northern Ireland

11    (1)  

Sub-paragraphs (2) to (4) apply where the court has jurisdiction to entertain

an application for an order under paragraph 9 only because a dwelling-

house which was a civil partnership home of the civil partners is situated in

Northern Ireland.

45

      (2)  

The court may make under paragraph 9 any one or more of the following

orders (but no other)—

(a)   

an order that one of the civil partners shall pay to the other a

specified lump sum;

 

 

 
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