|
| |
|
(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 |
| |
(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, |
| |
| |
(i) | order the respondent to pay to the applicant such lesser sum |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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 |
| |
(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 |
|
| |
|
| |
|
(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 |
| |
| |
(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. |
| |
| |
| “collecting officer” means the officer mentioned in Article 85(2) or (3) |
| |
of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/ |
| 15 |
| |
| “statutory provision” has the meaning given by section 1(f) of the |
| |
Interpretation Act (Northern Ireland) 1954 (c. 33(N.I.)). |
| |
| |
| 20 |
Restrictions on making of orders under this Schedule: welfare of children |
| |
| |
(a) | an application is made by a civil partner for an order under Part 1, 2 |
| |
| |
(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 |
| |
| |
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. |
| |
| |
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/ |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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. |
| |
| |
| |
Financial relief in Northern Ireland after overseas dissolution etc. of a civil |
| 10 |
| |
| |
| |
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 |
| |
| |
(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/ |
| |
| |
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 |
| |
(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 |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
Interim orders for maintenance |
| 25 |
| |
(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 |
| |
(2) | An interim order for maintenance is one requiring the other civil partner to |
| |
| |
| |
| 35 |
| such periodical payments as the court thinks reasonable for such term as the |
| |
| |
(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 |
| |
(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 |
| |
|
| |
|
| |
|
only under paragraph 7(4), the court shall not make an interim order under |
| |
| |
(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, |
| |
| |
(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 |
| |
(b) | was domiciled in Northern Ireland on the date when the dissolution, |
| |
annulment or legal separation took effect in the overseas country in |
| |
| |
(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 |
| |
(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 |
| |
| |
(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 |
|
| |
|
| |
|
(d) | any financial benefit which, in consequence of the dissolution, |
| |
annulment or legal separation— |
| |
| |
(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 |
| |
| 20 |
(h) | the extent to which any order made under this Schedule is likely to |
| |
| |
(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 |
| |
| |
| 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 |
| |
|
| |
|
| |
|
(3) | The court, in exercising its powers under paragraph 9 in relation to one of |
| |
| |
(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 |
| |
(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 |
| |
| 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. |
| |
| |
(a) | “pension arrangement” has the same meaning as in Part 3 of |
| 35 |
| |
(b) | references to benefit under a pension arrangement include any |
| |
benefits by way of pension, whether under a pension arrangement or |
| |
| |
Restriction of powers under paragraph 9 where jurisdiction depends on civil partnership home |
| 40 |
| |
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 |
| |
| 45 |
(2) | The court may make under paragraph 9 any one or more of the following |
| |
| |
(a) | an order that one of the civil partners shall pay to the other a |
| |
| |
|
| |
|