Civil Partnership Bill [HL]

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;