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 6 — Financial relief in magistrates’ courts etc.
Part 6 — Variation etc. of orders
198

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
(c. 43).
      (2)
Sub-paragraph (1) is subject to paragraph 37.
36    (1)
If—
(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,
etc.),

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
respondent, and
(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
written representations,

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
Act.
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
1980 Act).

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in magistrates’ courts etc.
Part 6 — Variation etc. of orders
199

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
reaches 18,

the child may apply to the court which made the order for an order for its
15
revival.
      (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
order by varying—
(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
Schedule—
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

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in magistrates’ courts etc.
Part 7 — Arrears and repayments
200

Part 7
Arrears and repayments
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
favour it was made, and
(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
representatives).
      (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,
may—
(i)
order the respondent to pay to the applicant such lesser sum
as it thinks fit, or
(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
in the order.
      (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

Civil Partnership Bill [HL]
Schedule 6 — Financial relief in magistrates’ courts etc.
Part 8 — Supplementary
201

(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
dealt with.
      (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
earnings order, means—
(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
Part 8
Supplementary
Restrictions on making of orders under this Schedule: welfare of children
45
If—
(a)
an application is made by a civil partner for an order under Part 1, 2
30
or 3, and
(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
to certain orders),
(b)
section 29 (appeals), and
(c)
section 31 (constitution of courts).

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
202

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
and Wales.
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.
Schedule 7
Section 72(4)

Financial relief in England and Wales after overseas dissolution etc. of a
civil partnership
20
Part 1
Financial relief
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
comes into force.
      (3)
In this Schedule “overseas country” means a country or territory outside the
British Islands.
      (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.

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
203

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
under paragraph 9 or 13.
      (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
been granted).
      (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
3     (1)
If—
(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
order.
      (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
court thinks fit.
Interim orders for maintenance
5     (1)
Where—
(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
maintenance.
      (2)
An interim order for maintenance is one requiring the other civil partner to
40
make—
(a)
to the applicant, or
(b)
to the child,

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
204


such periodical payments as the court thinks reasonable for such term as the
court thinks reasonable.
      (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
under the leave.
      (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
this paragraph.
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
and
(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
applied for, or
(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
which it was obtained.
      (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.