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Other Bills before Parliament

Civil Partnership Bill [HL]


Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 5 — Matters to which court is to have regard under Parts 1 to 4

156

 

Pension sharing orders: apportionment of charges

17         

If a pension sharing order relates to rights under a pension arrangement, the

court may include in the order provision about the apportionment between

the civil partners of any charge under—

(a)   

section 41 of the 1999 Act (charges in respect of pension sharing

5

costs), or

(b)   

corresponding Northern Ireland legislation.

Restrictions on making of pension sharing orders

18    (1)  

A pension sharing order may not be made in relation to a pension

arrangement which—

10

(a)   

is the subject of a pension sharing order in relation to the civil

partnership, or

(b)   

has been the subject of pension sharing between the civil partners.

      (2)  

A pension sharing order may not be made in relation to shareable state

scheme rights if—

15

(a)   

such rights are the subject of a pension sharing order in relation to

the civil partnership, or

(b)   

such rights have been the subject of pension sharing between the

civil partners.

      (3)  

A pension sharing order may not be made in relation to the rights of a person

20

under a pension arrangement if there is in force a requirement imposed by

virtue of Part 6 which relates to benefits or future benefits to which that

person is entitled under the pension arrangement.

When pension sharing orders may take effect

19    (1)  

A pension sharing order is not to take effect unless the dissolution or nullity

25

order on or after which it is made has been made final.

      (2)  

No pension sharing order may be made so as to take effect before the end of

such period after the making of the order as may be prescribed by

regulations made by the Lord Chancellor.

      (3)  

The power to make regulations under sub-paragraph (2) is exercisable by

30

statutory instrument which is subject to annulment in pursuance of a

resolution of either House of Parliament.

Part 5

Matters to which court is to have regard under Parts 1 to 4

General

35

20         

The court in deciding—

(a)   

whether to exercise its powers under—

(i)   

Part 1 (financial provision on dissolution etc.),

(ii)   

Part 2 (property adjustment orders),

(iii)   

Part 3 (sale of property orders), or

40

(iv)   

any provision of Part 4 (pension sharing orders) other than

paragraph 17 (apportionment of charges), and

 

 

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 5 — Matters to which court is to have regard under Parts 1 to 4

157

 

(b)   

if so, in what way,

           

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.

Particular matters to be taken into account when exercising powers in relation to civil partners

5

21    (1)  

This paragraph applies to the exercise by the court in relation to a civil

partner of its powers under—

(a)   

Part 1 (financial provision on dissolution etc.) by virtue of paragraph

2(1)(a), (b) or (c),

(b)   

Part 2 (property adjustment orders),

10

(c)   

Part 3 (sale of property orders), or

(d)   

Part 4 (pension sharing orders).

      (2)  

The court must in particular have regard to—

(a)   

the income, earning capacity, property and other financial resources

which each civil partner—

15

(i)   

has, or

(ii)   

is likely to have in the foreseeable future,

   

including, in the case of earning capacity, any increase in that

capacity which it would in the opinion of the court be reasonable to

expect a civil partner in the civil partnership to take steps to acquire;

20

(b)   

the financial needs, obligations and responsibilities which each civil

partner has or is likely to have in the foreseeable future;

(c)   

the standard of living enjoyed by the family before the breakdown of

the civil partnership;

(d)   

the age of each civil partner and the duration of the civil partnership;

25

(e)   

any physical or mental disability of either of the civil partners;

(f)   

the contributions which each civil partner has made or is likely in the

foreseeable future to make to the welfare of the family, including any

contribution by looking after the home or caring for the family;

(g)   

the conduct of each civil partner, if that conduct is such that it would

30

in the opinion of the court be inequitable to disregard it;

(h)   

in the case of proceedings for a dissolution or nullity order, the value

to each civil partner of any benefit which, because of the dissolution

or annulment of the civil partnership, that civil partner will lose the

chance of acquiring.

35

Particular matters to be taken into account when exercising powers in relation to children

22    (1)  

This paragraph applies to the exercise by the court in relation to a child of

the family of its powers under—

(a)   

Part 1 (financial provision on dissolution etc.) by virtue of paragraph

2(1)(d), (e) or (f)),

40

(b)   

Part 2 (property adjustment orders), or

(c)   

Part 3 (sale of property orders).

      (2)  

The court must in particular have regard to—

(a)   

the financial needs of the child;

(b)   

the income, earning capacity (if any), property and other financial

45

resources of the child;

(c)   

any physical or mental disability of the child;

 

 

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 5 — Matters to which court is to have regard under Parts 1 to 4

158

 

(d)   

the way in which the child was being and in which the civil partners

expected the child to be educated or trained;

(e)   

the considerations mentioned in relation to the civil partners in

paragraph 21(2)(a), (b), (c) and (e).

      (3)  

In relation to the exercise of any of those powers against a civil partner (“A”)

5

in favour of a child of the family who is not A’s child, the court must also

have regard to—

(a)   

whether A has assumed any responsibility for the child’s

maintenance;

(b)   

if so, the extent to which, and the basis upon which, A assumed such

10

responsibility and the length of time for which A discharged such

responsibility;

(c)   

whether in assuming and discharging such responsibility A did so

knowing that the child was not A’s child;

(d)   

the liability of any other person to maintain the child.

15

Terminating financial obligations

23    (1)  

Sub-paragraphs (2) and (3) apply if, on or after the making of a dissolution

or nullity order, the court decides to exercise its powers under—

(a)   

Part 1 (financial provision on dissolution etc.) by virtue of paragraph

2(1)(a), (b) or (c),

20

(b)   

Part 2 (property adjustment orders),

(c)   

Part 3 (sale of property orders), or

(d)   

Part 4 (pension sharing orders),

           

in favour of one of the civil partners.

      (2)  

The court must consider whether it would be appropriate to exercise those

25

powers in such a way that the financial obligations of each civil partner

towards the other will be terminated as soon after the making of the

dissolution or nullity order as the court considers just and reasonable.

      (3)  

If the court decides to make—

(a)   

a periodical payments order, or

30

(b)   

a secured periodical payments order,

           

in favour of one of the civil partners (“A”), it must in particular consider

whether it would be appropriate to require the payments to be made or

secured only for such term as would in its opinion be sufficient to enable A

to adjust without undue hardship to the termination of A’s financial

35

dependence on the other civil partner.

      (4)  

If—

(a)   

on or after the making of a dissolution or nullity order, an application

is made by one of the civil partners for a periodical payments or

secured periodical payments order in that civil partner’s favour, but

40

(b)   

the court considers that no continuing obligation should be imposed

on either civil partner to make or secure periodical payments in

favour of the other,

           

the court may dismiss the application with a direction that the applicant is

not entitled to make any future application in relation to that civil

45

partnership for an order under Part 1 by virtue of paragraph 2(1)(a) or (b).

 

 

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 6 — Making of Part 1 orders having regard to pension benefits

159

 

Part 6

Making of Part 1 orders having regard to pension benefits

Pension benefits to be included in matters to which court is to have regard

24    (1)  

The matters to which the court is to have regard under paragraph 21(2)(a)

include any pension benefits under a pension arrangement or by way of

5

pension which a civil partner has or is likely to have; and, accordingly, in

relation to any pension benefits paragraph 21(2)(a)(ii) has effect as if “in the

foreseeable future” were omitted.

      (2)  

The matters to which the court is to have regard under paragraph 21(2)(h)

include any pension benefits which, because of the making of a dissolution

10

or nullity order, a civil partner will lose the chance of acquiring.

      (3)  

“Pension benefits” means—

(a)   

benefits under a pension arrangement, or

(b)   

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

not).

15

Provisions applying where pension benefits taken into account in decision to make Part 1 order

25    (1)  

This paragraph applies if, having regard to any benefits under a pension

arrangement, the court decides to make an order under Part 1.

      (2)  

To the extent to which the Part 1 order is made having regard to any benefits

under a pension arrangement, it may require the person responsible for the

20

pension arrangement, if at any time any payment in respect of any benefits

under the arrangement becomes due to the civil partner with pension rights,

to make a payment for the benefit of the other civil partner.

      (3)  

The Part 1 order must express the amount of any payment required to be

made by virtue of sub-paragraph (2) as a percentage of the payment which

25

becomes due to the civil partner with pension rights.

      (4)  

Any such payment by the person responsible for the arrangement—

(a)   

discharges so much of his liability to the civil partner with pension

rights as corresponds to the amount of the payment, and

(b)   

is to be treated for all purposes as a payment made by the civil

30

partner with pension rights in or towards the discharge of that civil

partner’s liability under the order.

      (5)  

If the civil partner with pension rights has a right of commutation under the

arrangement, the Part 1 order may require that civil partner to exercise it to

any extent.

35

      (6)  

This paragraph applies to any payment due in consequence of commutation

in pursuance of the Part 1 order as it applies to other payments in respect of

benefits under the arrangement.

      (7)  

The power conferred by sub-paragraph (5) may not be exercised for the

purpose of commuting a benefit payable to the civil partner with pension

40

rights to a benefit payable to the other civil partner.

      (8)  

The powers conferred by sub-paragraphs (2) and (5) may not be exercised in

relation to a pension arrangement which—

(a)   

is the subject of a pension sharing order in relation to the civil

partnership, or

45

 

 

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 6 — Making of Part 1 orders having regard to pension benefits

160

 

(b)   

has been the subject of pension sharing between the civil partners.

Pensions: lump sums

26    (1)  

This paragraph applies if the benefits which the civil partner with pension

rights has or is likely to have under a pension arrangement include any lump

sum payable in respect of that civil partner’s death.

5

      (2)  

The court’s power under Part 1 to order a civil partner to pay a lump sum to

the other civil partner includes the power to make by the order any

provision in sub-paragraph (3) to (5).

      (3)  

If the person responsible for the pension arrangement has power to

determine the person to whom the sum, or any part of it, is to be paid, the

10

court may require him to pay the whole or part of that sum, when it becomes

due, to the other civil partner.

      (4)  

If the civil partner with pension rights has power to nominate the person to

whom the sum, or any part of it, is to be paid, the court may require the civil

partner with pension rights to nominate the other civil partner in respect of

15

the whole or part of that sum.

      (5)  

In any other case, the court may require the person responsible for the

pension arrangement in question to pay the whole or part of that sum, when

it becomes due, for the benefit of the other civil partner instead of to the

person to whom, apart from the order, it would be paid.

20

      (6)  

Any payment by the person responsible for the arrangement under an order

made under Part 1 made by virtue of this paragraph discharges so much of

his liability in respect of the civil partner with pension rights as corresponds

to the amount of the payment.

      (7)  

The powers conferred by this paragraph may not be exercised in relation to

25

a pension arrangement which—

(a)   

is the subject of a pension sharing order in relation to the civil

partnership, or

(b)   

has been the subject of pension sharing between the civil partners.

Pensions: supplementary

30

27         

If—

(a)   

a Part 1 order made by virtue of paragraph 25 or 26 imposes any

requirement on the person responsible for a pension arrangement

(“the first arrangement”),

(b)   

the civil partner with pension rights acquires rights under another

35

pension arrangement (“the new arrangement”) which are derived

(directly or indirectly) from the whole of that civil partner’s rights

under the first arrangement, and

(c)   

the person responsible for the new arrangement has been given

notice in accordance with regulations made by the Lord Chancellor,

40

           

the Part 1 order has effect as if it had been made instead in respect of the

person responsible for the new arrangement.

Regulations

28    (1)  

The Lord Chancellor may by regulations—

 

 

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 7 — Pension protection fund compensation etc.

161

 

(a)   

make provision, in relation to any provision of paragraph 25 or 26

which authorises the court making a Part 1 order to require the

person responsible for a pension arrangement to make a payment for

the benefit of the other civil partner, as to—

(i)   

the person to whom, and

5

(ii)   

the terms on which,

   

the payment is to be made;

(b)   

make provision, in relation to payment under a mistaken belief as to

the continuation in force of a provision included by virtue of

paragraph 25 or 26 in a Part 1 order, about the rights or liabilities of

10

the payer, the payee or the person to whom the payment was due;

(c)   

require notices to be given in respect of changes of circumstances

relevant to Part 1 orders which include provision made by virtue of

paragraphs 25 and 26;

(d)   

make provision for the person responsible for a pension

15

arrangement to be discharged in prescribed circumstances from a

requirement imposed by virtue of paragraph 25 or 26;

(e)   

make provision about calculation and verification in relation to the

valuation of—

(i)   

benefits under a pension arrangement, or

20

(ii)   

shareable state scheme rights (within the meaning of

paragraph 16(3)),

   

for the purposes of the court’s functions in connection with the

exercise of any of its powers under this Schedule.

      (2)  

Regulations under sub-paragraph (1)(e) may include—

25

(a)   

provision for calculation or verification in accordance with guidance

from time to time prepared by a prescribed person, and

(b)   

provision by reference to regulations under section 30 or 49(4) of the

1999 Act.

      (3)  

The power to make regulations under paragraph 27 or this paragraph is

30

exercisable by statutory instrument which is subject to annulment in

pursuance of a resolution of either House of Parliament.

      (4)  

“Prescribed” means prescribed by regulations.

Interpretation of provisions relating to pensions

29    (1)  

In this Part “the civil partner with pension rights” means the civil partner

35

who has or is likely to have benefits under a pension arrangement.

      (2)  

In this Part “pension arrangement” has the same meaning as in Part 4.

      (3)  

In this Part, references to the person responsible for a pension arrangement

are to be read in accordance with section 26 of the Welfare Reform and

Pensions Act 1999 (c. 30).

40

Part 7

Pension protection fund compensation etc.

PPF compensation to be included in matters to which court is to have regard

30    (1)  

The matters to which a court is to have regard under paragraph 21(2)(a)

include any PPF compensation to which a civil partner is or is likely to be

45

 

 

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 7 — Pension protection fund compensation etc.

162

 

entitled; and, accordingly, in relation to any PPF compensation paragraph

21(2)(a)(ii) has effect as if “in the foreseeable future” were omitted.

      (2)  

The matters to which a court is to have regard under paragraph 21(2)(h)

include any PPF compensation which, because of the making of a

dissolution or nullity order, a civil partner will lose the chance of acquiring

5

entitlement to.

      (3)  

In this Part “PPF compensation” means compensation payable under—

(a)   

Chapter 3 of Part 2 of the Pensions Act 2004 (pension protection), or

(b)   

corresponding Northern Ireland legislation.

Assumption of responsibility by PPF Board in paragraph 25(2) cases

10

31    (1)  

This paragraph applies to an order under Part 1 so far as it includes

provision made by virtue of paragraph 25(2) which—

(a)   

imposed requirements on the trustees or managers of an

occupational pension scheme for which the Board has assumed

responsibility, and

15

(b)   

was made before the trustees or managers received the transfer

notice.

      (2)  

From the time the trustees or managers of the scheme receive the transfer

notice, the order has effect—

(a)   

except in descriptions of case prescribed by regulations, with the

20

modifications set out in sub-paragraph (3), and

(b)   

with such other modifications as may be prescribed by regulations.

      (3)  

The modifications are that—

(a)   

references in the order to the trustees or managers of the scheme

have effect as references to the Board, and

25

(b)   

references in the order to any pension or lump sum to which the civil

partner with pension rights is or may become entitled under the

scheme have effect as references to any PPF compensation to which

that person is or may become entitled in respect of the pension or

lump sum.

30

Assumption of responsibility by PPF Board in paragraph 25(5) cases

32    (1)  

This paragraph applies to an order under Part 1 if—

(a)   

it includes provision made by virtue of paragraph 25(5) which

requires the civil partner with pension rights to exercise his right of

commutation under an occupational pension scheme to any extent,

35

and

(b)   

before the requirement is complied with the Board has assumed

responsibility for the scheme.

      (2)  

From the time the trustees or managers of the scheme receive the transfer

notice, the order has effect with such modifications as may be prescribed by

40

regulations.

Lump sums: power to modify paragraph 26 in respect of assessment period

33         

Regulations may modify paragraph 26 in its application to an occupational

pension scheme during an assessment period in relation to the scheme.

 

 

 
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