Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
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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 11 — Variation, discharge etc. of certain orders for financial relief
170

(i)
a pension sharing order made before the dissolution or nullity order
has been made final.
      (2)
If the court has made an order referred to in sub-paragraph (1)(f)(ii), this Part
ceases to apply to the order on the death of either of the civil partners.
      (3)
The powers exercisable by the court under this Part in relation to an order
5
are also exercisable in relation to any instrument executed in pursuance of
the order.
Powers to vary, discharge, suspend or revive order
51    (1)
If the court has made an order to which this Part applies, it may—
(a)
vary or discharge the order,
10
(b)
suspend any provision of it temporarily, or
(c)
revive the operation of any provision so suspended.
      (2)
Sub-paragraph (1) is subject to the provisions of this Part and paragraph
47(5).
Power to remit arrears
15
52    (1)
If the court has made an order referred to in paragraph 50(1)(a), (b), (c) or (d),
it may remit the payment of any arrears due under the order or under any
part of the order.
      (2)
Sub-paragraph (1) is subject to the provisions of this Part.
Additional powers on discharging or varying a periodical or secured periodical payments order
20
after dissolution of civil partnership
53    (1)
Sub-paragraph (2) applies if, after the dissolution of a civil partnership, the
court—
(a)
discharges a periodical payments order or secured periodical
payments order made in favour of a civil partner, or
25
(b)
varies such an order so that payments under the order are required
to be made or secured only for such further period as is determined
by the court.
      (2)
The court may make supplemental provision consisting of any of the
following—
30
(a)
an order for the payment of a lump sum in favour of one of the civil
partners;
(b)
one or more property adjustment orders in favour of one of the civil
partners;
(c)
one or more pension sharing orders;
35
(d)
a direction that the civil partner in whose favour the original order
discharged or varied was made is not entitled to make any further
application for—
(i)
a periodical payments or secured periodical payments order,
or
40
(ii)
an extension of the period to which the original order is
limited by any variation made by the court.
      (3)
The power under sub-paragraph (2) is in addition to any power the court has
apart from that sub-paragraph.

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
171

54    (1)
An order for the payment of a lump sum under paragraph 53 may—
(a)
provide for the payment of it by instalments of such amount as may
be specified, and
(b)
require the payment of the instalments to be secured to the
satisfaction of the court.
5
      (2)
Sub-paragraphs (5) and (6) of paragraph 3 (interest on deferred instalments)
apply where the court makes an order for the payment of a lump sum under
paragraph 53 as they apply where it makes such an order under Part 1.
      (3)
If under paragraph 53 the court makes more than one property adjustment
order in favour of the same civil partner, each of those orders must fall
10
within a different paragraph of paragraph 7(1) (types of property
adjustment orders).
      (4)
Part 3 (orders for the sale of property) and paragraph 76 (direction for
settlement of instrument) apply where the court makes a property
adjustment order under paragraph 53 as they apply where it makes any
15
other property adjustment order.
      (5)
Paragraph 18 (restrictions on making of pension sharing order) applies in
relation to a pension sharing order under paragraph 53 as it applies in
relation to any other pension sharing order.
Variation etc. of periodical or secured periodical payments orders made in cases of failure to
20
maintain
55    (1)
An application for the variation under paragraph 51 of a periodical
payments order or secured periodical payments order made under Part 9 in
favour of a child may, if the child has reached 16, be made by the child
himself.
25
      (2)
Sub-paragraph (3) applies if a periodical payments order made in favour of
a child under Part 9 ceases to have effect—
(a)
on the date on which the child reaches 16, or
(b)
at any time after that date but before or on the date on which the
child reaches 18.
30
      (3)
If, on an application made to the court for an order under this sub-
paragraph, it appears to the court that—
(a)
the child is, will be or, if an order were made under this sub-
paragraph, would be—
(i)
receiving instruction at an educational establishment, or
35
(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
under this sub-paragraph,
40

the court may by order revive the order mentioned in sub-paragraph (2)
from such date as it may specify.
      (4)
A date specified under sub-paragraph (3) must not be earlier than the date
of the application under that sub-paragraph.
      (5)
If under sub-paragraph (3) the court revives an order it may exercise its
45
power under paragraph 51 in relation to the revived order.

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
172

Variation etc. of property adjustment and pension sharing orders
56
The court must not exercise the powers conferred by this Part in relation to
a property adjustment order falling within paragraph 7(1)(b), (c) or (d)
(order for settlement or for variation of settlement) except on an application
made in proceedings—
5
(a)
for the rescission of the separation order by reference to which the
property adjustment order was made, or
(b)
for a dissolution order in relation to the civil partnership.
57    (1)
In relation to a pension sharing order which is made at a time before the
dissolution or nullity order has been made final—
10
(a)
the powers conferred by this Part (by virtue of paragraph 50(1)(i))
may be exercised—
(i)
only on an application made before the pension sharing order
has or, but for paragraph (b), would have taken effect, and
(ii)
only if, at the time when the application is made, the
15
dissolution or nullity order has not been made final, and
(b)
an application made in accordance with paragraph (a) prevents the
pension sharing order from taking effect before the application has
been dealt with.
      (2)
No variation of a pension sharing order is to be made so as to take effect
20
before the order is made final.
      (3)
The variation of a pension sharing order prevents the order taking effect
before the end of such period after the making of the variation as may be
prescribed by regulations made by the Lord Chancellor.
      (4)
The power to make regulations under sub-paragraph (3) is exercisable by
25
statutory instrument which is subject to annulment in pursuance of a
resolution of either House of Parliament.
58    (1)
Sub-paragraphs (2) and (3)—
(a)
are subject to paragraphs 53 and 54, and
(b)
do not affect any power exercisable by virtue of paragraph 50(e), (f),
30
(g) or (i) or otherwise than by virtue of this Part.
      (2)
No property adjustment order or pension sharing order may be made on an
application for the variation of a periodical payments or secured periodical
payments order made (whether in favour of a civil partner or in favour of a
child of the family) under Part 1.
35
      (3)
No order for the payment of a lump sum may be made on an application for
the variation of a periodical payments or secured periodical payments order
in favour of a civil partner (whether made under Part 1 or 9).
Matters to which court is to have regard in exercising powers under this Part
59    (1)
In exercising the powers conferred by this Part the court must have regard
40
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.
      (2)
The circumstances of the case include, in particular, any change in any of the
matters to which the court was required to have regard when making the
order to which the application relates.
45
      (3)
Sub-paragraph (4) applies in the case of—
(a)
a periodical payments order, or

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
173

(b)
a secured periodical payments order,

made on or after the making of a dissolution or nullity order.
      (4)
The court must consider whether in all the circumstances, and after having
regard to any such change, it would be appropriate to vary the order so that
payments under the order are required—
5
(a)
to be made, or
(b)
to be secured,

only for such further period as will in the opinion of the court be sufficient
to enable the civil partner in whose favour the order was made to adjust
without undue hardship to the termination of those payments.
10
      (5)
In considering what further period will be sufficient, the court must, if the
civil partnership has been dissolved, take into account any proposed
exercise by it of its powers under paragraph 53.
      (6)
If the civil partner against whom the order was made has died, the
circumstances of the case also include the changed circumstances resulting
15
from that civil partner’s death.
Variation of secured periodical payments order where person liable has died
60    (1)
This paragraph applies if the person liable to make payments under a
secured periodical payments order has died.
      (2)
Subject to sub-paragraph (3), an application under this Part relating to the
20
order (and to any sale of property order which requires the proceeds of sale
of property to be used for securing those payments) may be made by—
(a)
the person entitled to payments under the periodical payments
order, or
(b)
the personal representatives of the deceased person.
25
      (3)
No such application may be made without the leave of the court after the
end of 6 months from the date on which representation in regard to the
estate of that person is first taken out.
      (4)
The personal representatives of the person who has died are not liable for
having distributed any part of the estate of the deceased after the end of the
30
6 month period on the ground that they ought to have taken into account the
possibility that the court might allow an application under this paragraph to
be made after that period by the person entitled to payments under the
order.
      (5)
Sub-paragraph (4) does not affect any power to recover any part of the estate
35
so distributed arising by virtue of the making of an order in pursuance of
this paragraph.
      (6)
In considering for the purposes of sub-paragraph (3) the question when
representation was first taken out—
(a)
a grant limited to settled land or to trust property is to be
40
disregarded, and
(b)
a grant limited to real estate or to personal estate is to be disregarded
unless a grant limited to the remainder of the estate has previously
been made or is made at the same time.
Power to direct when variation etc. is to take effect
45
61    (1)
If the court, in exercise of its powers under this Part, decides—

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
174

(a)
to vary, or
(b)
to discharge,

a periodical payments or secured periodical payments order, it may direct
that the variation or discharge is not to take effect until the end of such
period as may be specified in the order.
5
      (2)
Sub-paragraph (1) is subject to paragraph 47(1) and (6).
62    (1)
If—
(a)
a periodical payments or secured periodical payments order in
favour of more than one child (“the order”) is in force,
(b)
the order requires payments specified in it to be made to or for the
10
benefit of more than one child without apportioning those payments
between them,
(c)
a maintenance calculation (“the calculation”) is made with respect to
one or more, but not all, of the children with respect to whom those
payments are to be made, and
15
(d)
an application is made, before the end of the period of 6 months
beginning with the date on which the calculation was made, for the
variation or discharge of the order,

the court may, in exercise of its powers under this Part to vary or discharge
the order, direct that the variation or discharge is to take effect from the date
20
on which the calculation took effect or any later date.
      (2)
If—
(a)
an order (“the child order”) of a kind prescribed for the purposes of
section 10(1) of the Child Support Act 1991 (c. 48) is affected by a
maintenance calculation,
25
(b)
on the date on which the child order became so affected there was in
force a periodical payments or secured periodical payments order
(“the civil partner’s order”) in favour of a civil partner having the
care of the child in whose favour the child order was made, and
(c)
an application is made, before the end of the period of 6 months
30
beginning with the date on which the maintenance calculation was
made, for the civil partner’s order to be varied or discharged,

the court may, in exercise of its powers under this Part to vary or discharge
the civil partner’s order, direct that the variation or discharge is to take effect
from the date on which the child order became so affected or any later date.
35
      (3)
For the purposes of sub-paragraph (2), an order is affected if it ceases to have
effect or is modified by or under section 10 of the 1991 Act.
      (4)
Sub-paragraphs (1) and (2) do not affect any other power of the court to
direct that the variation of discharge of an order under this Part is to take
effect from a date earlier than that on which the order for variation or
40
discharge was made.
      (5)
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.

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 12 — Arrears and repayments
175

Part 12
Arrears and repayments
Payment of certain arrears unenforceable without the leave of the court
63    (1)
This paragraph applies if any arrears are due under—
(a)
an order under Part 1 (financial provision on dissolution etc.),
5
(b)
an order under Part 8 (maintenance pending outcome of dissolution,
nullity or separation proceedings), or
(c)
an order under Part 9 (failure to maintain),

and the arrears became due more than 12 months before proceedings to
enforce the payment of them are begun.
10
      (2)
A person is not entitled to enforce through the High Court or any county
court the payment of the arrears without the leave of that court.
      (3)
The court hearing an application for the grant of leave under this paragraph
may—
(a)
refuse leave,
15
(b)
grant leave subject to such restrictions and conditions (including
conditions as to the allowing of time for payment or the making of
payment by instalments) as that court thinks proper, or
(c)
remit the payment of the arrears or of any part of them.
      (4)
An application for the grant of leave under this paragraph must be made in
20
such manner as may be prescribed by rules of court.
Orders for repayment in certain cases of sums paid under certain orders
64    (1)
This paragraph applies if—
(a)
a person (“R”) is entitled to receive payments under an order listed
in sub-paragraph (2), and
25
(b)
R’s circumstances or the circumstances of the person (“P”) liable to
make payments under the order have changed since the order was
made, or the circumstances have changed as a result of P’s death.
      (2)
The orders are—
(a)
any order under Part 8 (maintenance pending outcome of
30
dissolution, nullity or separation proceedings);
(b)
any interim order under Part 9;
(c)
any periodical payments order;
(d)
any secured periodical payments order.
      (3)
P or P’s personal representatives may (subject to sub-paragraph (7)) apply
35
for an order under this paragraph against R or R’s personal representatives.
      (4)
If it appears to the court that, because of the changed circumstances or P’s
death, the amount received by R in respect of a relevant period exceeds the
amount which P or P’s personal representatives should have been required
to pay, it may order the respondent to the application to pay to the applicant
40
such sum, not exceeding the amount of the excess, as it thinks just.
      (5)
“Relevant period” means a period after the circumstances changed or (as the
case may be) after P’s death.

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 12 — Arrears and repayments
176

      (6)
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.
      (7)
An application under this paragraph—
(a)
may be made in proceedings in the High Court or a county court
5
for—
(i)
the variation or discharge of the order listed in sub-
paragraph (2), or
(ii)
leave to enforce, or the enforcement of, the payment of
arrears under that order, but
10
(b)
if not made in such proceedings, must be made to a county court;

and accordingly references in this paragraph to the court are references to
the High Court or a county court, as the circumstances require.
      (8)
The jurisdiction conferred on a county court by this paragraph is exercisable
even though, because of the amount claimed in the application, the
15
jurisdiction would not but for this sub-paragraph be exercisable by a county
court.
Orders for repayment after cessation of order because of subsequent civil partnership etc.
65    (1)
Sub-paragraphs (3) and (4) apply if—
(a)
a periodical payments or secured periodical payments order in
20
favour of a civil partner (“R”) has ceased to have effect because of the
formation of a subsequent civil partnership or marriage by R, and
(b)
the person liable to make payments under the order (“P”) (or P’s
personal representatives) has made payments in accordance with it
in respect of a relevant period in the mistaken belief that the order
25
was still subsisting.
      (2)
“Relevant period” means a period after the date of the formation of the
subsequent civil partnership or marriage.
      (3)
P (or P’s personal representatives) is not entitled to bring proceedings in
respect of a cause of action arising out of the circumstances mentioned in
30
sub-paragraph (1)(a) and (b) against R (or R’s personal representatives).
      (4)
But, on an application 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 pay to the applicant a sum equal to the
amount of the payments made in respect of the relevant period, or
35
(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
(ii)
dismiss the application.
40
      (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—
(a)
may be made in proceedings in the High Court or a county court for
45
leave to enforce, or the enforcement of, payment of arrears under the
order in question, but
(b)
if not made in such proceedings, must be made to a county court;