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 5 — Financial relief in the High Court or a county court etc.
Part 7 — Pension protection fund compensation etc.
163

Assumption of responsibility by the Board not to affect power of court to vary order etc.
34    (1)
This paragraph applies where the court makes, in relation to an occupational
pension scheme—
(a)
a pension sharing order, or
(b)
an order including provision made by virtue of paragraph 25(2)
5
or (5).
      (2)
If the Board subsequently assumes responsibility for the scheme, that does
not affect—
(a)
the powers of the court under paragraph 51 to vary or discharge the
order or to suspend or revive any provision of it;
10
(b)
on an appeal, the powers of the appeal court to affirm, reinstate, set
aside or vary the order.
Regulations
35
Regulations may make such consequential modifications of any provision
of, or made by virtue of, this Schedule as appear to the Lord Chancellor
15
necessary or expedient to give effect to the provisions of this Part.
36    (1)
In this Part “regulations” means regulations made by the Lord Chancellor.
      (2)
A power to make regulations under this Part is exercisable by statutory
instrument which is subject to annulment in pursuance of a resolution of
either House of Parliament.
20
Interpretation
37    (1)
In this Part—
“assessment period” means—
(a)
an assessment period within the meaning of Part 2 of the
Pensions Act 2004 (pension protection), or
25
(b)
an equivalent period under corresponding Northern
Ireland legislation;
“the Board” means the Board of the Pension Protection Fund;
“the civil partner with pension rights” has the meaning given by
paragraph 29(1);
30
“occupational pension scheme” has the same meaning as in the
Pension Schemes Act 1993 (c. 48);
“transfer notice” has the same meaning as in—
(a)
Chapter 3 of Part 2 of the 2004 Act, or
(b)
corresponding Northern Ireland legislation.
35
      (2)
References in this Part to the Board assuming responsibility for a scheme are
to the Board assuming responsibility for the scheme in accordance with—
(a)
Chapter 3 of Part 2 of the 2004 Act (pension protection), or
(b)
corresponding Northern Ireland legislation.

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 9 — Failure to maintain: financial provision (and interim orders)
164

Part 8
Maintenance pending outcome of dissolution, nullity or separation
proceedings
38
On an application for a dissolution, nullity or separation order, the court
may make an order requiring either civil partner to make to the other for the
5
other’s maintenance such periodical payments for such term—
(a)
beginning no earlier than the date on which the application was
made, and
(b)
ending with the date on which the proceedings are determined,

as the court thinks reasonable.
10
Part 9
Failure to maintain: financial provision (and interim orders)
Circumstances in which orders under this Part may be made
39    (1)
Either civil partner in a subsisting civil partnership may apply to the court
for an order under this Part on the ground that the other civil partner (“the
15
respondent”)—
(a)
has failed to provide reasonable maintenance for the applicant, or
(b)
has failed to provide, or to make a proper contribution towards,
reasonable maintenance for any child of the family.
      (2)
The court must not entertain an application under this paragraph unless—
20
(a)
the applicant or the respondent is domiciled in England and Wales
on the date of the application,
(b)
the applicant has been habitually resident there throughout the
period of 1 year ending with that date, or
(c)
the respondent is resident there on that date.
25
      (3)
If, on an application under this paragraph, it appears to the court that—
(a)
the applicant or any child of the family to whom the application
relates is in immediate need of financial assistance, but
(b)
it is not yet possible to determine what order, if any, should be made
on the application,
30

the court may make an interim order.
      (4)
If, on an application under this paragraph, the applicant satisfies the court of
a ground mentioned in sub-paragraph (1), the court may make one or more
of the orders set out in paragraph 41.
Interim orders
35
40
An interim order is an order requiring the respondent to make to the
applicant, until the determination of the application, such periodical
payments as the court thinks reasonable.
Orders that may be made where failure to maintain established
41    (1)
The orders are—
40
(a)
an order that the respondent must make to the applicant such
periodical payments for such term as may be specified;

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 9 — Failure to maintain: financial provision (and interim orders)
165

(b)
an order that the respondent must secure to the applicant, to the
satisfaction of the court, such periodical payments for such term as
may be specified;
(c)
an order that the respondent must pay to the applicant such lump
sum as may be specified;
5
(d)
an order that the respondent must make such periodical payments
for such term as may be specified—
(i)
to such person as may be specified, for the benefit of the child
to whom the application relates, or
(ii)
to the child to whom the application relates;
10
(e)
an order that the respondent must secure—
(i)
to such person as may be specified for the benefit of the child
to whom the application relates, or
(ii)
to the child to whom the application relates,

to the satisfaction of the court, such periodical payments for such
15
term as may be specified;
(f)
an order that the respondent must pay such lump sum as may be
specified—
(i)
to such person as may be specified for the benefit of the child
to whom the application relates, or
20
(ii)
to the child to whom the application relates.
      (2)
In this Part “specified” means specified in the order.
Particular provision that may be made by lump sum orders
42    (1)
An order under this Part for the payment of a lump sum may be made for
the purpose of enabling any liabilities or expenses reasonably incurred in
25
maintaining the applicant or any child of the family to whom the application
relates before the making of the application to be met.
      (2)
An order under this Part for the payment of a lump sum may—
(a)
provide for its payment by instalments of such amount as may be
specified, and
30
(b)
require the payment of the instalments to be secured to the
satisfaction of the court.
      (3)
Sub-paragraphs (1) and (2) do not restrict the power to make an order by
virtue of paragraph 41(1)(c) or (f).
Matters to which the court is to have regard on application under paragraph 39(1)(a)
35
43    (1)
This paragraph applies if an application under paragraph 39 is made on the
ground mentioned in paragraph 39(1)(a).
      (2)
In deciding—
(a)
whether the respondent has failed to provide reasonable
maintenance for the applicant, and
40
(b)
what order, if any, to make under this Part in favour of the applicant,

the court must have regard to all the circumstances of the case including the
matters mentioned in paragraph 21(2).
      (3)
If an application is also made under paragraph 39 in respect of a child of the
family who has not reached 18, the court must give first consideration to the
45
welfare of the child while under 18.

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 10 — Commencement of certain proceedings and duration of certain orders
166

      (4)
Paragraph 21(2)(c) has effect as if for the reference in it to the breakdown of
the civil partnership there were substituted a reference to the failure to
provide reasonable maintenance for the applicant.
Matters to which the court is to have regard on application under paragraph 39(1)(b)
44    (1)
This paragraph applies if an application under paragraph 39 is made on the
5
ground mentioned in paragraph 39(1)(b).
      (2)
In deciding—
(a)
whether the respondent has failed to provide, or to make a proper
contribution towards, reasonable maintenance for the child of the
family to whom the application relates, and
10
(b)
what order, if any, to make under this Part in favour of the child,

the court must have regard to all the circumstances of the case.
      (3)
Those circumstances include—
(a)
the matters mentioned in paragraph 22(2)(a) to (e), and
(b)
if the child of the family to whom the application relates is not the
15
child of the respondent, the matters mentioned in paragraph 22(3).
      (4)
Paragraph 21(2)(c) (as it applies by virtue of paragraph 22(2)(e)) has effect as
if for the reference in it to the breakdown of the civil partnership there were
substituted a reference to—
(a)
the failure to provide, or
20
(b)
the failure to make a proper contribution towards,

reasonable maintenance for the child of the family to whom the application
relates.
Restrictions on making orders under this Part
45
The power to make an order under paragraph 41(1)(d), (e) or (f) is subject to
25
paragraph 49(1) and (5) (restrictions on orders in favour of children who
have reached 18).
Part 10
Commencement of certain proceedings and duration of certain orders
Commencement of proceedings for ancillary relief, etc.
30
46    (1)
Sub-paragraph (2) applies if an application for a dissolution, nullity or
separation order has been made.
      (2)
Subject to sub-paragraph (3), proceedings for—
(a)
an order under Part 1 (financial provision on dissolution etc.),
(b)
a property adjustment order, or
35
(c)
an order under Part 8 (maintenance pending outcome of dissolution,
nullity or separation proceedings),

may be begun (subject to and in accordance with rules of court) at any time
after the presentation of the application.
      (3)
Rules of court may provide, in such cases as may be prescribed by the rules,
40
that—
(a)
an application for any such relief as is mentioned in sub-paragraph
(2) must be made in the application or response, and

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 10 — Commencement of certain proceedings and duration of certain orders
167

(b)
an application for any such relief which—
(i)
is not so made, or
(ii)
is not made until after the end of such period following the
presentation of the application or filing of the response as
may be so prescribed,
5

may be made only with the leave of the court.
Duration of periodical and secured periodical payments orders for a civil partner
47    (1)
The court may specify in a periodical payments or secured periodical
payments order in favour of a civil partner such term as it thinks fit, except
that the term must not—
10
(a)
begin before the date of the making of an application for the order, or
(b)
extend beyond the limits given in sub-paragraphs (2) and (3).
      (2)
The limits in the case of a periodical payments order are—
(a)
the death of either civil partner;
(b)
where the order is made on or after the making of a dissolution or
15
nullity order, the formation of a subsequent civil partnership or
marriage by the civil partner in whose favour the order is made.
      (3)
The limits in the case of a secured periodical payments order are—
(a)
the death of the civil partner in whose favour the order is made;
(b)
where the order is made on or after the making of a dissolution or
20
nullity order, the formation of a subsequent civil partnership or
marriage by the civil partner in whose favour the order is made.
      (4)
In the case of an order made on or after the making of a dissolution or nullity
order, sub-paragraphs (1) to (3) are subject to paragraphs 23(3) and 59(4).
      (5)
If a periodical payments or secured periodical payments order in favour of
25
a civil partner is made on or after the making of a dissolution or nullity
order, the court may direct that that civil partner is not entitled to apply
under paragraph 51 for the extension of the term specified in the order.
      (6)
If—
(a)
a periodical payments or secured periodical payments order in
30
favour of a civil partner is made otherwise than on or after the
making of a dissolution or nullity order, and
(b)
the civil partnership is subsequently dissolved or annulled but the
order continues in force,

the order ceases to have effect (regardless of anything in it) on the formation
35
of a subsequent civil partnership or marriage by that civil partner, except in
relation to any arrears due under it on the date of its formation.
Subsequent civil partnership or marriage
48
If after the making of a dissolution or nullity order one of the civil partners
forms a subsequent civil partnership or marriage, that civil partner is not
40
entitled to apply, by reference to the dissolution or nullity order, for—
(a)
an order under Part 1 in that civil partner’s favour, or
(b)
a property adjustment order,

against the other civil partner in the dissolved or annulled civil partnership.

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 10 — Commencement of certain proceedings and duration of certain orders
168

Duration of continuing orders in favour of children, and age limit on making certain orders in
their favour
49    (1)
Subject to sub-paragraph (5)—
(a)
no order under Part 1,
(b)
no property adjustment order made by virtue of paragraph 7(1)(a)
5
(transfer of property), and
(c)
no order made under Part 9 (failure to maintain) by virtue of
paragraph 41,

is to be made in favour of a child who has reached 18.
      (2)
The term to be specified in a periodical payments or secured periodical
10
payments order in favour of a child may begin with—
(a)
the date of the making of an application for the order or a later date,
or
(b)
a date ascertained in accordance with sub-paragraph (7) or (8).
      (3)
The term to be specified in such an order—
15
(a)
must not in the first instance extend beyond the date of the birthday
of the child next following the child’s reaching the upper limit of the
compulsory school age unless the court considers that in the
circumstances of the case the welfare of the child requires that it
should extend to a later date, and
20
(b)
must not in any event, subject to sub-paragraph (5), extend beyond
the date of the child’s 18th birthday.
      (4)
Sub-paragraph (3)(a) must be read with section 8 of the Education Act 1996
(c. 56) (which applies to determine for the purposes of any enactment
whether a person is of compulsory school age).
25
      (5)
Sub-paragraphs (1) and (3)(b) do not apply in the case of a child if it appears
to the court that—
(a)
the child is, or will be, or, if an order were made without complying
with either or both of those provisions, would be—
(i)
receiving instruction at an educational establishment, or
30
(ii)
undergoing training for a trade, profession or vocation,

whether or not the child also is, will be or would be in gainful
employment, or
(b)
there are special circumstances which justify the making of an order
without complying with either or both of sub-paragraphs (1) and
35
(3)(b).
      (6)
A periodical payments order in favour of a child, regardless of anything in
the order, ceases to have effect on the death of the person liable to make
payments under the order, except in relation to any arrears due under the
order on the date of the death.
40
      (7)
If—
(a)
a maintenance calculation (“the current calculation”) is in force with
respect to a child, and
(b)
an application is made under this Schedule for a periodical payments
or secured periodical payments order in favour of that child—
45
(i)
in accordance with section 8 of the Child Support Act 1991
(c. 48), and
(ii)
before the end of 6 months beginning with the making of the
current calculation,

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 11 — Variation, discharge etc. of certain orders for financial relief
169


the term to be specified in any such order made on that application may be
expressed to begin on, or at any time after, the earliest permitted date.
      (8)
“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
5
successive maintenance calculations have been continuously in force
with respect to a child, on which the first of those calculations took
effect.
      (9)
If—
(a)
a maintenance calculation ceases to have effect by or under any
10
provision of the 1991 Act, and
(b)
an application is made, before the end of 6 months beginning with
the relevant date, for a periodical payments or secured periodical
payments order in favour of a child with respect to whom that
maintenance calculation was in force immediately before it ceased to
15
have effect,

the term to be specified in any such order made on that application may
begin with the date on which that maintenance calculation ceased to have
effect or any later date.
     (10)
“The relevant date” means the date on which the maintenance calculation
20
ceased to have effect.
     (11)
In this paragraph “maintenance calculation” has the same meaning as it has
in the 1991 Act by virtue of section 54 of the 1991 Act as read with any
regulations in force under that section.
Part 11
25
Variation, discharge etc. of certain orders for financial relief
Orders etc. to which this Part applies
50    (1)
This Part applies to the following orders—
(a)
a periodical payments order under Part 1 (financial provision on
dissolution etc.) or Part 9 (failure to maintain);
30
(b)
a secured periodical payments order under Part 1 or 9;
(c)
an order under Part 8 (maintenance pending outcome of dissolution
proceedings etc.);
(d)
an interim order under Part 9;
(e)
an order made under Part 1 by virtue of paragraph 3(3) or under Part
35
9 by virtue of paragraph 42(2) (lump sum by instalments);
(f)
a deferred order made under Part 1 by virtue of paragraph 2(1)(c)
(lump sum for civil partner) which includes provision made by
virtue of—
(i)
paragraph 25(2), or
40
(ii)
paragraph 26,

(provision in respect of pension rights);
(g)
a property adjustment order made on or after the making of a
separation order by virtue of paragraph 7(1)(b), (c) or (d) (order for
settlement or variation of settlement);
45
(h)
a sale of property order;