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 13 — Consent orders and maintenance agreements
177


and accordingly references in this paragraph to the court are references to
the High Court or a county court, as the circumstances require.
      (7)
The jurisdiction conferred on a county court by this paragraph is exercisable
even though, because of the amount claimed in the application, the
jurisdiction would not but for this sub-paragraph be exercisable by a county
5
court.
      (8)
Subject to sub-paragraph (9)—
(a)
the designated officer for a magistrates’ court to whom any
payments under a payments order are required to be made is not
liable for any act done by him in pursuance of the payments order
10
after the date on which that order ceased to have effect because of the
formation of a subsequent civil partnership or marriage by the
person entitled to payments under it, and
(b)
the collecting officer under an attachment of earnings order made to
secure payments under a payments order is not liable for any act
15
done by him after that date in accordance with any enactment or rule
of court specifying how payments made to him in compliance with
the attachment of earnings order are to be dealt with.
      (9)
Sub-paragraph (8) applies if (and only if) the act—
(a)
was one which the officer would have been under a duty to do had
20
the payments order 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 payments order,
(ii)
the person liable to make payments under it, or
25
(iii)
the personal representatives of either of them.
     (10)
In sub-paragraphs (8) and (9) “payments order” means a periodical
payments order or secured periodical payments order and “collecting
officer”, in relation to an attachment of earnings order, means—
(a)
the officer of the High Court,
30
(b)
the district judge of a county court, or
(c)
the designated officer for a magistrates’ court,

to whom a person makes payments in compliance with the order.
Part 13
Consent orders and maintenance agreements
35
Consent orders for financial relief
66    (1)
Regardless of anything in the preceding provisions of this Schedule, on an
application for a consent order for financial relief, the court may, unless it
has reason to think that there are other circumstances into which it ought to
inquire, make an order in the terms agreed on the basis only of such
40
information supplied with the application as is required by rules of court.
      (2)
Sub-paragraph (1) applies to an application for a consent order varying or
discharging an order for financial relief as it applies to an application for an
order for financial relief.
      (3)
In this paragraph—
45
“consent order”, in relation to an application for an order, means an
order in the terms applied for to which the respondent agrees;

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 13 — Consent orders and maintenance agreements
178

“order for financial relief” means an order under any of Parts 1, 2, 3, 4
and 9.
Meaning of “maintenance agreement” and “financial arrangements”
67    (1)
In this Part “maintenance agreement” means any agreement in writing
between the civil partners in a civil partnership which—
5
(a)
is made during the continuance or after the dissolution or annulment
of the civil partnership and contains financial arrangements, or
(b)
is a separation agreement which contains no financial arrangements
but is made in a case where no other agreement in writing between
the civil partners contains financial arrangements.
10
      (2)
In this Part “financial arrangements” means provisions governing the rights
and liabilities towards one another when living separately of the civil
partners in a civil partnership (including a civil partnership which has been
dissolved or annulled) in respect of—
(a)
the making or securing of payments, or
15
(b)
the disposition or use of any property,

including such rights and liabilities with respect to the maintenance or
education of a child (whether or not a child of the family).
      (3)
“Education” includes training.
Validity of maintenance agreements
20
68
If a maintenance agreement includes a provision purporting to restrict any
right to apply to a court for an order containing financial arrangements—
(a)
that provision is void, but
(b)
any other financial arrangements contained in the agreement—
(i)
are not void or unenforceable as a result, and
25
(ii)
unless void or unenforceable for any other reason, are
(subject to paragraphs 69 and 73) binding on the parties to the
agreement.
Alteration of agreements by court during lives of parties
69    (1)
Either party to a maintenance agreement may apply to the court or, subject
30
to sub-paragraph (6), to a magistrates’ court for an order under this
paragraph if—
(a)
the maintenance agreement is for the time being subsisting, and
(b)
each of the parties to the agreement is for the time being domiciled
or resident in England and Wales.
35
      (2)
The court may make an order under this paragraph if it is satisfied that—
(a)
because of a change in the circumstances in the light of which—
(i)
any financial arrangements contained in the agreement were
made, or
(ii)
financial arrangements were omitted from it,
40

the agreement should be altered so as to make different financial
arrangements or so as to contain financial arrangements, or
(b)
that the agreement does not contain proper financial arrangements
with respect to any child of the family.

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 13 — Consent orders and maintenance agreements
179

      (3)
In sub-paragraph (2)(a) the reference to a change in the circumstances
includes a change foreseen by the parties when making the agreement.
      (4)
An order under this paragraph may make such alterations in the
agreement—
(a)
by varying or revoking any financial arrangements contained in it, or
5
(b)
by inserting in it financial arrangements for the benefit of one of the
parties to the agreement or of a child of the family,

as appear to the court to be just having regard to all the circumstances,
including, if relevant, the matters mentioned in paragraph 22(3).
      (5)
The effect of the order is that the agreement is to be treated as if any
10
alteration made by the order had been made by agreement between the
partners and for valuable consideration.
      (6)
The power to make an order under this paragraph is subject to paragraphs
70 and 71.
Restrictions on applications to and orders by magistrates’ courts under paragraph 69
15
70    (1)
A magistrates’ court must not entertain an application under paragraph
69(1) unless—
(a)
both the parties to the agreement are resident in England and Wales,
and
(b)
the court acts in, or is authorised by the Lord Chancellor to act for, a
20
local justice area in which at least one of the parties is resident.
      (2)
A magistrates’ court must not make any order on such an application other
than—
(a)
if the agreement includes no provision for periodical payments by
either of the parties, an order inserting provision for the making by
25
one of the parties of periodical payments for the maintenance of—
(i)
the other party, or
(ii)
any child of the family;
(b)
if the agreement includes provision for the making by one of the
parties of periodical payments, an order increasing or reducing the
30
rate of, or terminating, any of those payments.
Provisions relating to periodical and secured periodical payments: duration
71    (1)
If a court decides to make an order under paragraph 69 altering an
agreement—
(a)
by inserting provision for the making or securing by one of the
35
parties to the agreement of periodical payments for the maintenance
of the other party, or
(b)
by increasing the rate of the periodical payments which the
agreement provides shall be made by one of the parties for the
maintenance of the other,
40

it may specify such term as it thinks fit as the term for which the payments
or, as the case may be, the additional payments attributable to the increase
are to be made under the altered agreement, except that the term must not
extend beyond the limits in sub-paragraphs (2) and (3).
      (2)
The limits if the payments are not to be secured are—
45
(a)
the death of either of the parties to the agreement, or

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 13 — Consent orders and maintenance agreements
180

(b)
the formation of a subsequent civil partnership or marriage by the
party to whom the payments are to be made.
      (3)
The limits if the payments are to be secured are—
(a)
the death of the party to whom the payments are to be made, or
(b)
the formation of a subsequent civil partnership or marriage by that
5
party.
      (4)
Sub-paragraph (5) applies if a court decides to make an order under
paragraph 69 altering an agreement by—
(a)
inserting provision for the making or securing by one of the parties
to the agreement of periodical payments for the maintenance of a
10
child of the family, or
(b)
increasing the rate of the periodical payments which the agreement
provides shall be made or secured by one of the parties for the
maintenance of such a child.
      (5)
The court, in deciding the term for which under the agreement as altered by
15
the order—
(a)
the payments are to be made or secured for the benefit of the child, or
(b)
the additional payments attributable to the increase are to be made
or secured for the benefit of the child,

must apply paragraph 49(2) to (5) (age limits) as if the order in question were
20
a periodical payments or secured periodical payments order in favour of the
child.
Saving
72
Nothing in paragraphs 68 to 71 affects—
(a)
any power of a court before which any proceedings between the
25
parties to a maintenance agreement are brought under any other
enactment (including a provision of this Schedule) to make an order
containing financial arrangements, or
(b)
any right of either party to apply for such an order in such
proceedings.
30
Alteration of agreements by court after death of one party
73    (1)
This paragraph applies if—
(a)
a maintenance agreement provides for the continuation of payments
under the agreement after the death of one of the parties, and
(b)
that party (“A”) dies domiciled in England and Wales.
35
      (2)
Subject to sub-paragraph (4), the surviving party or A’s personal
representatives may apply to the High Court or a county court for an order
under paragraph 69.
      (3)
If a maintenance agreement is altered by a court on an application made
under sub-paragraph (2), the same consequences follow as if the alteration
40
had been made immediately before the death by agreement between the
parties and for valuable consideration.
      (4)
An application under this paragraph may not, without the leave of the High
Court or a county court, be made after the end of 6 months from the date on
which representation in regard to A’s estate is first taken out.
45

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 14 — Miscellaneous and supplementary
181

      (5)
A’s personal representatives are not liable for having distributed any part of
A’s estate after the end of the 6 month period on the ground that they ought
to have taken into account the possibility that a court might allow an
application by virtue of this paragraph to be made by the surviving party
after that period.
5
      (6)
Sub-paragraph (5) does not affect any power to recover any part of the estate
so distributed arising by virtue of the making of an order in pursuance of
this paragraph.
      (7)
Paragraph 60(6) applies for the purposes of sub-paragraph (4) as it applies
for the purposes of paragraph 60(3).
10
Part 14
Miscellaneous and supplementary
Avoidance of transactions intended to prevent or reduce financial relief
74    (1)
This paragraph applies if proceedings for relief (“financial relief”) are
brought by one person (“A”) against another (“B”) under Part 1, 2, 4, 8, 9, or
15
11 (other than paragraph 60(2)), or paragraph 69.
      (2)
If the court is satisfied, on an application by A, that B is, with the intention
of defeating A’s claim for financial relief, about to—
(a)
make any disposition, or
(b)
transfer out of the jurisdiction or otherwise deal with any property,
20

it may make such order as it thinks fit for restraining B from doing so or
otherwise for protecting the claim.
      (3)
If the court is satisfied, on an application by A, that—
(a)
B has, with the intention of defeating A’s claim for financial relief,
made a reviewable disposition, and
25
(b)
if the disposition were set aside, financial relief or different financial
relief would be granted to A,

it make an order setting aside the disposition.
      (4)
If the court is satisfied, on an application by A in a case where an order has
been obtained by A against B under any of the provisions mentioned in sub-
30
paragraph (1), that B has, with the intention of defeating A’s claim for
financial relief, made a reviewable disposition, it may make an order setting
aside the disposition.
      (5)
An application for the purposes of sub-paragraph (3) must be made in the
proceedings for the financial relief in question.
35
      (6)
If the court makes an order under sub-paragraph (3) or (4) setting aside a
disposition it must give such consequential directions as it thinks fit for
giving effect to the order (including directions requiring the making of any
payments or the disposal of any property).
75    (1)
Any reference in paragraph 74 to defeating A’s claim for financial relief is
40
to—
(a)
preventing financial relief from being granted to A, or to A for the
benefit of a child of the family,
(b)
reducing the amount of any financial relief which might be so
granted, or
45

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 14 — Miscellaneous and supplementary
182

(c)
frustrating or impeding the enforcement of any order which might
be or has been made at A’s instance under any of those provisions.
      (2)
In paragraph 74 and this paragraph “disposition”—
(a)
does not include any provision contained in a will or codicil, but
(b)
subject to paragraph (a), includes any conveyance, assurance or gift
5
of property of any description (whether made by an instrument or
otherwise).
      (3)
Any disposition made by B (whether before or after the commencement of
the proceedings for financial relief) is a reviewable disposition for the
purposes of paragraphs 74(3) and (4) unless it was made—
10
(a)
for valuable consideration (other than formation of a civil
partnership), and
(b)
to a person who, at the time of the disposition, acted in relation to it
in good faith and without notice of any intention on B’s part to defeat
A’s claim for financial relief.
15
      (4)
If an application is made under paragraph 74 with respect to a disposition
which took place less than 3 years before the date of the application or with
respect to a disposition or other dealing with property which is about to take
place and the court is satisfied—
(a)
in a case falling within paragraph 74(2) or (3), that the disposition or
20
other dealing would (apart from paragraph 74) have the
consequence of defeating A’s claim for financial relief, or
(b)
in a case falling within paragraph 74(4), that the disposition has had
the consequence of defeating A’s claim for financial relief,

it is presumed, unless the contrary is shown, that the person who disposed
25
of or is about to dispose of or deal with the property did so or, as the case
may be, is about to do so, with the intention of defeating A’s claim for
financial relief.
Direction for settlement of instrument for securing payments or effecting property adjustment
76    (1)
This paragraph applies if the court decides to make—
30
(a)
an order under Part 1 or 9 requiring any payments to be secured, or
(b)
a property adjustment order.
      (2)
The court may direct that the matter be referred to one of the conveyancing
counsel of the court for him to settle a proper instrument to be executed by
all necessary parties.
35
      (3)
If the order referred to in sub-paragraph (1) is to be made in proceedings for
a dissolution, nullity or separation order, the court may, if it thinks fit, defer
the making of the dissolution, nullity or separation order until the
instrument has been duly executed.
Settlement, etc., made in compliance with a property adjustment order may be avoided on
40
bankruptcy of settlor
77
The fact that—
(a)
a settlement, or
(b)
a transfer of property,

had to be made in order to comply with a property adjustment order does
45
not prevent the settlement or transfer from being a transaction in respect of

Civil Partnership Bill [HL]
Schedule 5 — Financial relief in the High Court or a county court etc.
Part 14 — Miscellaneous and supplementary
183

which an order may be made under section 339 or 340 of the Insolvency Act
1986 (c. 45) (transfers at an undervalue and preferences).
Payments, etc., under order made in favour of person suffering from mental disorder
78    (1)
This paragraph applies if—
(a)
the court makes an order under this Schedule requiring—
5
(i)
payments (including a lump sum payment) to be made, or
(ii)
property to be transferred,

to a civil partner, and
(b)
the court is satisfied that the person in whose favour the order is
made is incapable, because of mental disorder, of managing and
10
administering his or her property and affairs.
      (2)
“Mental disorder” has the same meaning as in the Mental Health Act 1983
(c. 20).
      (3)
Subject to any order, direction or authority made or given in relation to that
person under Part 8 of the 1983 Act, the court may order the payments to be
15
made or, as the case may be, the property to be transferred to such persons
having charge of that person as the court may direct.
Appeals relating to pension sharing orders which have taken effect
79    (1)
Sub-paragraphs (2) and (3) apply if an appeal against a pension sharing
order is begun on or after the day on which the order takes effect.
20
      (2)
If the pension sharing order relates to a person’s rights under a pension
arrangement, the appeal court may not set aside or vary the order if the
person responsible for the pension arrangement has acted to his detriment
in reliance on the order taking effect.
      (3)
If the pension sharing order relates to a person’s shareable state scheme
25
rights, the appeal court may not set aside or vary the order if the Secretary
of State has acted to his detriment in reliance on the taking effect of the order.
      (4)
In determining for the purposes of sub-paragraph (2) or (3) whether a person
has acted to his detriment in reliance on the taking effect of the order, the
appeal court may disregard any detriment which in its opinion is
30
insignificant.
      (5)
Where sub-paragraph (2) or (3) applies, the appeal court may make such
further orders (including one or more pension sharing orders) as it thinks fit
for the purpose of putting the parties in the position it considers appropriate.
      (6)
Paragraph 19 only applies to a pension sharing order under this paragraph
35
if the decision of the appeal court can itself be the subject of an appeal.
      (7)
In sub-paragraph (2), the reference to the person responsible for the pension
arrangement is to be read in accordance with paragraph 29(3).
Interpretation
80    (1)
References in this Schedule to—
40
(a)
periodical payments orders,
(b)
secured periodical payments orders, and
(c)
orders for the payment of a lump sum,