|
| |
|
Variation of orders for periodical payments: further provisions |
| |
35 (1) | The power of the court under paragraphs 30 to 34 to vary an order for the |
| |
making of periodical payments includes power, if the court is satisfied that |
| |
payment has not been made in accordance with the order, to exercise one of |
| |
its powers under section 59(3)(a) to (d) of the Magistrates’ Courts Act 1980 |
| 5 |
| |
(2) | Sub-paragraph (1) is subject to paragraph 37. |
| |
| |
(a) | a magistrates’ court has made an order under this Schedule for the |
| |
making of periodical payments, and |
| 10 |
(b) | payments under the order are required to be made by any method of |
| |
payment falling within section 59(6) of the 1980 Act (standing order, |
| |
| |
| an application may be made under this sub-paragraph to the court for the |
| |
order to be varied as mentioned in sub-paragraph (2). |
| 15 |
(2) | Subject to sub-paragraph (4), if an application is made under sub-paragraph |
| |
(1), a justices’ clerk, after— |
| |
(a) | giving written notice (by post or otherwise) of the application to the |
| |
| |
(b) | allowing the respondent, within the period of 14 days beginning |
| 20 |
with the date of the giving of that notice, an opportunity to make |
| |
| |
| may vary the order to provide that payments under the order are to be made |
| |
to the designated officer for the court. |
| |
(3) | The clerk may proceed with an application under sub-paragraph (1) even if |
| 25 |
the respondent has not received written notice of the application. |
| |
(4) | If an application has been made under sub-paragraph (1), the clerk may, if |
| |
he considers it inappropriate to exercise his power under sub-paragraph (2), |
| |
refer the matter to the court which, subject to paragraph 37, may vary the |
| |
order by exercising one of its powers under section 59(3)(a) to (d) of the 1980 |
| 30 |
| |
37 (1) | Before varying the order by exercising one of its powers under section |
| |
59(3)(a) to (d) of the 1980 Act, the court must have regard to any |
| |
representations made by the parties to the application. |
| |
(2) | If the court does not propose to exercise its power under section 59(3)(c), (cc) |
| 35 |
or (d) of the 1980 Act, the court must, unless upon representations expressly |
| |
made in that behalf by the person to whom payments under the order are |
| |
required to be made it is satisfied that it is undesirable to do so, exercise its |
| |
power under section 59(3)(b). |
| |
38 (1) | Section 59(4) of the 1980 Act (power of court to order that account be |
| 40 |
opened) applies for the purposes of paragraphs 35 and 36(4) as it applies for |
| |
the purposes of section 59. |
| |
(2) | None of the powers of the court, or of a justices’ clerk, conferred by |
| |
paragraphs 35 to 37 and sub-paragraph (1) is exercisable in relation to an |
| |
order under this Schedule for the making of periodical payments which is |
| 45 |
not a qualifying maintenance order (within the meaning of section 59 of the |
| |
| |
|
| |
|
| |
|
Persons who may apply under this Part |
| |
39 | An application under paragraph 30, 31 or 36 may be made— |
| |
(a) | if it is for the variation or revocation of an order under Part 1, 2, 3 or |
| |
4 for periodical payments, by either civil partner, and |
| |
(b) | if it is for the variation of an order under paragraph 2(1)(c) or Part 2 |
| 5 |
or 3 for periodical payments to or in respect of a child, also by the |
| |
child himself, if he has reached 16. |
| |
Revival of orders for periodical payments |
| |
40 (1) | If an order made by a magistrates’ court under this Schedule for the making |
| |
of periodical payments to or in respect of a child (other than an interim |
| 10 |
order) 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 he |
| |
| |
| the child may apply to the court which made the order for an order for its |
| 15 |
| |
(2) | If on such an application it appears to the court that— |
| |
(a) | the child is, will be or (if an order were made under this sub- |
| |
paragraph) would be receiving instruction at an educational |
| |
establishment or undergoing training for a trade, profession or |
| 20 |
vocation, whether or not while in gainful employment, or |
| |
(b) | there are special circumstances which justify the making of an order |
| |
under this sub-paragraph, |
| |
| the court may by order revive the order from such date as the court may |
| |
specify, not being earlier than the date of the making of the application. |
| 25 |
(3) | Any order revived under this paragraph may be varied or revoked under |
| |
paragraphs 30 to 34 in the same way as it could have been varied or revoked |
| |
had it continued in being. |
| |
Variation of instalments of lump sum |
| |
41 | If in the exercise of its powers under section 75 of the 1980 Act a magistrates’ |
| 30 |
court orders that a lump sum required to be paid under this Schedule is to |
| |
be paid by instalments, the court, on an application made by either the |
| |
person liable to pay or the person entitled to receive that sum, may vary that |
| |
| |
(a) | the number of instalments payable, |
| 35 |
(b) | the amount of any instalment payable, and |
| |
(c) | the date on which any instalment becomes payable. |
| |
Supplementary provisions with respect to variation and revocation of orders |
| |
42 | None of the following powers apply in relation to an order made under this |
| |
| 40 |
(a) | the powers of a magistrates’ court to revoke, revive or vary an order |
| |
for the periodical payment of money and the power of a justices’ |
| |
clerk to vary such an order under section 60 of the 1980 Act; |
| |
(b) | the power of a magistrates’ court to suspend or rescind certain other |
| |
orders under section 63(2) of the 1980 Act. |
| 45 |
|
| |
|
| |
|
| |
| |
Enforcement etc. of orders for payment of money |
| |
43 | Section 32 of the Domestic Proceedings and Magistrates’ Courts Act 1978 |
| |
(c. 22) applies in relation to orders under this Schedule as it applies in |
| 5 |
relation to orders under Part 1 of that Act. |
| |
Orders for repayment after cessation of order because of subsequent civil partnership etc. |
| |
44 (1) | Sub-paragraphs (3) and (4) apply if— |
| |
(a) | an order made under paragraph 2(1)(a) or Part 2 or 3 has, under |
| |
paragraph 26(2), ceased to have effect because of the formation of a |
| 10 |
subsequent civil partnership or marriage by the party (“R”) in whose |
| |
| |
(b) | the person liable to make payments under the order (“P”) made |
| |
payments in accordance with it in respect of a relevant period in the |
| |
mistaken belief that the order was still subsisting. |
| 15 |
(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 |
| 20 |
| |
(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 pay to the applicant a sum equal to the |
| |
amount of the payments made in respect of the relevant period, or |
| 25 |
(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 |
| |
| |
(ii) | dismiss the application. |
| 30 |
(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— |
| |
(a) | may be made in proceedings in the High Court or a county court for |
| 35 |
leave to enforce, or 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, |
| |
| and accordingly references in this paragraph to the court are references to |
| |
the High Court or a county court, as the circumstances require. |
| 40 |
(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 |
| |
application under this paragraph, the jurisdiction would not but for this sub- |
| |
paragraph be exercisable by a county court. |
| |
(8) | Subject to sub-paragraph (9)— |
| 45 |
|
| |
|
| |
|
(a) | the designated officer for a magistrates’ court to whom any |
| |
payments under an order made under paragraph 2(1)(a), or Part 2 or |
| |
3, are required to be made is not liable for any act done by him in |
| |
pursuance of the order after the date on which that order ceased to |
| |
have effect because of the formation of a subsequent civil partnership |
| 5 |
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 the order under paragraph 2(1)(a), or Part 2 |
| |
or 3, is not liable for any act done by him after that date in accordance |
| |
with any enactment or rule of court specifying how payments made |
| 10 |
to him in compliance with the attachment of earnings order are to be |
| |
| |
(9) | Sub-paragraph (8) applies if (but only if) the act— |
| |
(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 |
| 15 |
(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, |
| |
(ii) | the person liable to make payments under it, or |
| |
(iii) | the personal representatives of either of them. |
| 20 |
(10) | In this paragraph “collecting officer”, in relation to an attachment of |
| |
| |
(a) | the officer of the High Court, or |
| |
(b) | the officer designated by the Lord Chancellor, |
| |
| to whom a person makes payments in compliance with the order. |
| 25 |
| |
| |
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 |
| 30 |
| |
(b) | there is a child of the family who is under 18, |
| |
| 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 Act |
| |
1989 (c. 41) with respect to the child. |
| 35 |
Constitution of courts, powers of High Court and county court in relation to orders and appeals |
| |
46 | The following provisions of the Domestic Proceedings and Magistrates’ |
| |
Courts Act 1978 (c. 22) apply in relation to an order under this Schedule |
| |
relating to a civil partnership as they apply in relation to an order under Part |
| |
1 of that Act relating to a marriage— |
| 40 |
(a) | section 28 (powers of the High Court and a county court in relation |
| |
| |
(b) | section 29 (appeals), and |
| |
(c) | section 31 (constitution of courts). |
| |
|
| |
|
| |
|
Provisions as to jurisdiction and procedure |
| |
47 (1) | Subject to section 2 of the Family Law Act 1986 (c. 55) and section 70 of the |
| |
Magistrates’ Courts Act 1980 (c. 43) and any determination of the Lord |
| |
Chancellor, a magistrates’ court has jurisdiction to hear an application for an |
| |
order under this Schedule if it acts in, or is authorised by the Lord Chancellor |
| 5 |
to act for, a local justice area in which either the applicant or the respondent |
| |
ordinarily resides at the date of the making of the application. |
| |
(2) | Any jurisdiction conferred on a magistrates’ court by this Schedule is |
| |
exercisable even if any party to the proceedings is not domiciled in England |
| |
| 10 |
Meaning of “child of the family” |
| |
48 | In this Schedule “child of the family”, in relation to two people who are civil |
| |
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 |
| 15 |
by a local authority or voluntary organisation, who has been treated |
| |
by both the civil partners as a child of their family. |
| |
| |
| |
Financial relief in England and Wales after overseas dissolution etc. of a |
| |
| 20 |
| |
| |
Part applies where civil partnership has been dissolved etc. overseas |
| |
1 (1) | This Part of this Schedule applies where— |
| |
(a) | a civil partnership has been dissolved or annulled, or the civil |
| 25 |
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 England and Wales. |
| |
(2) | This Part of this Schedule applies even if the date of the dissolution, |
| 30 |
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 |
| |
| |
(4) | In this Part of this Schedule “child of the family” means— |
| 35 |
(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 a local authority or voluntary organisation, who has been |
| |
treated by both the civil partners as a child of their family. |
| |
|
| |
|
| |
|
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 |
| |
| |
(2) | The rights conferred by sub-paragraph (1) are subject to— |
| |
(a) | paragraph 3 (civil partner may not apply after forming subsequent |
| 5 |
civil partnership etc.), and |
| |
(b) | paragraph 4 (application may not be made until leave to make it has |
| |
| |
(3) | An application for an order under paragraph 9 or 13 must be made in a |
| |
manner prescribed by rules of court. |
| 10 |
No application after formation of subsequent civil partnership or marriage |
| |
| |
(a) | the civil partnership has been dissolved or annulled, and |
| |
(b) | after the dissolution or annulment, one of the civil partners forms a |
| |
subsequent civil partnership or marriage, |
| 15 |
| 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 |
| |
partnership or marriage includes a reference to the forming of a civil |
| |
partnership or marriage which is by law void or voidable. |
| 20 |
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. |
| |
(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 |
| 25 |
| |
(3) | The court may grant leave under this paragraph notwithstanding that an |
| |
order has been made by a court in a country outside England and Wales |
| |
requiring the other civil partner to make any payment, or transfer any |
| |
property, to the applicant or to a child of the family. |
| 30 |
(4) | Leave under this paragraph may be granted subject to such conditions as the |
| |
| |
Interim orders for maintenance |
| |
| |
(a) | leave is granted under paragraph 4, and |
| 35 |
(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 |
| |
| |
(2) | An interim order for maintenance is one requiring the other civil partner to |
| 40 |
| |
| |
| |
|
| |
|
| |
|
| 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 |
| 5 |
| |
(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 |
| |
| 10 |
(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 |
| |
6 | Paragraphs 7 and 8 apply where— |
| |
(a) | one of the civil partners has been granted leave under paragraph 4, |
| 15 |
| |
(b) | acting under the leave, that civil partner makes an application for an |
| |
order under paragraph 9 or 13. |
| |
Jurisdiction of the court |
| |
7 (1) | The court shall have jurisdiction to entertain the application only if one or |
| 20 |
more of the following jurisdictional requirements is satisfied. |
| |
(2) | The first requirement is that either of the civil partners— |
| |
(a) | was domiciled in England and Wales on the date when the leave was |
| |
| |
(b) | was domiciled in England and Wales on the date when the |
| 25 |
dissolution, annulment or legal separation took effect in the overseas |
| |
country in which it was obtained. |
| |
(3) | The second is that either of the civil partners— |
| |
(a) | was habitually resident in England and Wales throughout the period |
| |
of one year ending with the date when the leave was applied for, or |
| 30 |
(b) | was habitually resident in England and Wales 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 |
| |
| |
(4) | The third is that either or both of the civil partners had, at the date when the |
| 35 |
leave was applied for, a beneficial interest in possession in a dwelling-house |
| |
situated in England or Wales which was at some time during the civil |
| |
partnership a civil partnership home of the civil partners. |
| |
(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. |
| 40 |
Duty of the court to consider whether England and Wales 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 |
| |
applied for to be made by a court in England and Wales. |
| |
|
| |
|