|
| |
|
(2) | If the court is not satisfied that it would be appropriate, the court shall |
| |
| |
(3) | The court must, in particular, have regard to the following matters— |
| |
(a) | the connection which the civil partners have with England and |
| |
| 5 |
(b) | the connection which the civil partners have with the country in |
| |
which the civil partnership was dissolved or annulled or in which |
| |
they were legally separated; |
| |
(c) | the connection which the civil partners have with any other country |
| |
outside England and Wales; |
| 10 |
(d) | any financial benefit which, in consequence of the dissolution, |
| |
annulment or legal separation— |
| |
| |
(ii) | a child of the family, |
| |
| has received, or is likely to receive, by virtue of any agreement or the |
| 15 |
operation of the law of a country outside England and Wales; |
| |
(e) | in a case where an order has been made by a court in a country |
| |
outside England and Wales requiring the other civil partner— |
| |
(i) | to make any payment, or |
| |
(ii) | to transfer any property, |
| 20 |
| for the benefit of the applicant or a child of the family, the financial |
| |
relief given by the order and the extent to which the order has been |
| |
complied with or is likely to be complied with; |
| |
(f) | any right which the applicant has, or has had, to apply for financial |
| |
relief from the other civil partner under the law of any country |
| 25 |
outside England and Wales and, if the applicant has omitted to |
| |
exercise that right, the reason for that omission; |
| |
(g) | the availability in England and Wales of any property in respect of |
| |
which an order under this Schedule in favour of the applicant could |
| |
| 30 |
(h) | the extent to which any order made under this Schedule is likely to |
| |
| |
(i) | the length of time which has elapsed since the date of the dissolution, |
| |
annulment or legal separation. |
| |
Orders for financial provision, property adjustment and pension sharing |
| 35 |
9 (1) | Sub-paragraphs (2) and (3) apply where one of the civil partners has made |
| |
an application for an order under this paragraph. |
| |
(2) | If the civil partnership has been dissolved or annulled, the court may on the |
| |
application make any one or more of the orders which it could make under |
| |
Part 1, 2 or 4 of Schedule 5 (financial provision, property adjustment and |
| 40 |
pension sharing) if a dissolution order or nullity order had been made in |
| |
respect of the civil partnership under Chapter 2 of Part 2 of this Act. |
| |
(3) | If the civil partners have been legally separated, the court may on the |
| |
application make any one or more of the orders which it could make under |
| |
Part 1 or 2 of Schedule 5 (financial provision and property adjustment) if a |
| 45 |
separation order had been made in respect of the civil partners under |
| |
Chapter 2 of Part 2 of this Act. |
| |
(4) | Where under sub-paragraph (2) or (3) the court makes— |
| |
|
| |
|
| |
|
(a) | an order which, if made under Schedule 5, would be a secured |
| |
periodical payments order, |
| |
(b) | an order for the payment of a lump sum, or |
| |
(c) | an order which, if made under that Schedule, would be a property |
| |
| 5 |
| then, on making that order or at any time afterwards, the court may make |
| |
any order which it could make under Part 3 of Schedule 5 (sale of property) |
| |
if the order under sub-paragraph (2) or (3) had been made under that |
| |
| |
(5) | The powers under sub-paragraphs (2) to (4) are subject to paragraph 11. |
| 10 |
Matters to which court is to have regard in exercising its powers under paragraph 9 |
| |
10 (1) | The court, in deciding— |
| |
(a) | whether to exercise its powers under paragraph 9, and |
| |
| |
| must act in accordance with this paragraph. |
| 15 |
(2) | The court must have regard to all the circumstances of the case, giving first |
| |
consideration to the welfare, while under 18, of any child of the family who |
| |
| |
(3) | The court, in exercising its powers under paragraph 9 in relation to one of |
| |
| 20 |
(a) | must in particular have regard to the matters mentioned in |
| |
paragraph 21(2) of Schedule 5, and |
| |
(b) | shall be under duties corresponding to those imposed by sub- |
| |
paragraphs (2) and (3) of paragraph 23 of that Schedule (duties to |
| |
consider termination of financial obligations) where it decides to |
| 25 |
exercise under paragraph 9 powers corresponding to the powers |
| |
referred to in those sub-paragraphs. |
| |
(4) | The matters to which the court is to have regard under sub-paragraph (3)(a), |
| |
so far as relating to paragraph 21(2)(a) of Schedule 5 (regard to be had to |
| |
financial resources), include— |
| 30 |
(a) | any benefits under a pension arrangement which either of the civil |
| |
partners has or is likely to have, and |
| |
(b) | any PPF compensation to which a civil partner is or is likely to be |
| |
| |
| (whether or not in the foreseeable future). |
| 35 |
(5) | The matters to which the court is to have regard under sub-paragraph (3)(a), |
| |
so far as relating to paragraph 21(2)(h) of Schedule 5 (regard to be had to |
| |
benefits that cease to be acquirable), include— |
| |
(a) | any benefits under a pension arrangement which, because of the |
| |
dissolution or annulment of the civil partnership, one of the civil |
| 40 |
partners will lose the chance of acquiring, and |
| |
(b) | any PPF compensation which, because of the making of the |
| |
dissolution or nullity order, a civil partner will lose the chance of |
| |
acquiring entitlement to. |
| |
(6) | The court, in exercising its powers under paragraph 9 in relation to a child |
| 45 |
of the family, must in particular have regard to the matters mentioned in |
| |
paragraph 22(2) of Schedule 5. |
| |
|
| |
|
| |
|
(7) | The court, in exercising its powers under paragraph 9 against a civil partner |
| |
(“A”) in favour of a child of the family who is not A’s child, must also have |
| |
regard to the matters mentioned in paragraph 22(3) of Schedule 5. |
| |
(8) | Where an order has been made by a court outside England and Wales for— |
| |
(a) | the making of payments, or |
| 5 |
(b) | the transfer of property, |
| |
| by one of the civil partners, the court in considering in accordance with this |
| |
paragraph the financial resources of the other civil partner, or of a child of |
| |
the family, shall have regard to the extent to which that order has been |
| |
complied with or is likely to be complied with. |
| 10 |
| |
(a) | “pension arrangement” has the same meaning as in Part 4 of |
| |
| |
(b) | references to benefits under a pension arrangement include any |
| |
benefits by way of pension, whether under a pension arrangement or |
| 15 |
| |
(c) | “PPF compensation” has the same meaning as in Part 7 of Schedule 5. |
| |
Restriction of powers under paragraph 9 where jurisdiction depends on civil partnership home |
| |
| |
11 (1) | Sub-paragraphs (2) to (4) apply where the court has jurisdiction to entertain |
| 20 |
an application for an order under paragraph 9 only because a dwelling- |
| |
house which was a civil partnership home of the civil partners is situated in |
| |
| |
(2) | The court may make under paragraph 9 any one or more of the following |
| |
| 25 |
(a) | an order that one of the civil partners shall pay to the other a |
| |
| |
(b) | an order that one of the civil partners shall pay to a child of the |
| |
family, or to a specified person for the benefit of a child of the family, |
| |
| 30 |
(c) | an order that one of the civil partners shall transfer that civil |
| |
partner’s interest in the dwelling-house, or a specified part of that |
| |
| |
| |
(ii) | to a child of the family, or |
| 35 |
(iii) | to a specified person for the benefit of a child of the family; |
| |
(d) | an order that a settlement of the interest of one of the civil partners |
| |
in the dwelling-house, or a specified part of that interest, be made to |
| |
the satisfaction of the court for the benefit of any one or more of— |
| |
(i) | the other civil partner and the children of the family, or |
| 40 |
(ii) | either or any of them; |
| |
(e) | an order varying for the benefit of any one or more of— |
| |
(i) | the civil partners and the children of the family, or |
| |
(ii) | either or any of them, |
| |
| a relevant settlement so far as that settlement relates to an interest in |
| 45 |
| |
|
| |
|
| |
|
(f) | an order extinguishing or reducing the interest of either of the civil |
| |
partners under a relevant settlement so far as that interest is an |
| |
interest in the dwelling-house; |
| |
(g) | an order for the sale of the interest of one of the civil partners in the |
| |
| 5 |
(3) | Where under paragraph 9 the court makes just one order for the payment of |
| |
a lump sum by one of the civil partners, the amount of the lump sum must |
| |
not exceed the amount specified in sub-paragraph (5). |
| |
(4) | Where under paragraph 9 the court makes two or more orders each of which |
| |
is an order for the payment of a lump sum by the same civil partner, the total |
| 10 |
of the amounts of the lump sums must not exceed the amount specified in |
| |
| |
| |
(a) | if the interest of the paying civil partner in the dwelling-house is sold |
| |
in pursuance of an order made under sub-paragraph (2)(g), the |
| 15 |
amount of the proceeds of sale of that interest after deducting from |
| |
those proceeds any costs incurred in the sale of that interest; |
| |
(b) | if that interest is not so sold, the amount which in the opinion of the |
| |
court represents the value of that interest. |
| |
(6) | Where the interest of one of the civil partners in the dwelling-house is held |
| 20 |
jointly or in common with any other person or persons— |
| |
(a) | the reference in sub-paragraph (2)(g) to the interest of one of the civil |
| |
partners shall be construed as including a reference to the interest of |
| |
that other person, or the interest of those other persons, in the |
| |
| 25 |
(b) | the reference in sub-paragraph (5)(a) to the amount of the proceeds |
| |
of a sale ordered under sub-paragraph (2)(g) shall be construed as a |
| |
reference to that part of those proceeds which is attributable to the |
| |
interest of that civil partner in the dwelling-house. |
| |
(7) | In sub-paragraph (2)— |
| 30 |
| “relevant settlement” means a settlement made, during the |
| |
subsistence of the civil partnership or in anticipation of its |
| |
formation, on the civil partners, including one made by will or |
| |
| |
| “specified” means specified in the order. |
| 35 |
Consent orders under paragraph 9 |
| |
12 (1) | On an application for a consent order under paragraph 9, the court may |
| |
make an order in the terms agreed on the basis only of the prescribed |
| |
information furnished with the application. |
| |
(2) | Sub-paragraph (1) does not apply if the court has reason to think that there |
| 40 |
are other circumstances into which it ought to inquire. |
| |
(3) | Sub-paragraph (1) applies to an application for a consent order varying or |
| |
discharging an order under paragraph 9 as it applies to an application for |
| |
| |
(4) | Sub-paragraph (1) applies despite paragraph 10. |
| 45 |
| |
| “consent order”, in relation to an application for an order, means an |
| |
order in the terms applied for to which the respondent agrees; |
| |
|
| |
|
| |
|
| “prescribed” means prescribed by rules of court. |
| |
Orders for transfers of tenancies of dwelling-houses |
| |
13 (1) | This paragraph applies if— |
| |
(a) | an application is made by one of the civil partners for an order under |
| |
| 5 |
(b) | one of the civil partners is entitled, either in his own right or jointly |
| |
with the other civil partner, to occupy a dwelling-house in England |
| |
or Wales by virtue of a tenancy which is a relevant tenancy within the |
| |
meaning of Schedule 7 to the Family Law Act 1996 (c. 27). |
| |
(2) | The court may make in relation to that dwelling-house any order which it |
| 10 |
could make under Part 2 of that Schedule (order transferring tenancy or |
| |
switching statutory tenants) if it had power to make a property adjustment |
| |
order under Part 2 of Schedule 5 to this Act with respect to the civil |
| |
| |
(3) | The provisions of paragraphs 10, 11 and 14(1) of Schedule 7 to the Family |
| 15 |
Law Act 1996 (payments by transferee, pre-transfer liabilities and right of |
| |
landlord to be heard) apply in relation to any order under this paragraph as |
| |
they apply to any order under Part 2 of that Schedule. |
| |
Application to orders under paragraphs 5 and 9 of provisions of Schedule 5 |
| |
14 (1) | The following provisions of Schedule 5 apply in relation to an order made |
| 20 |
under paragraph 5 or 9 of this Schedule as they apply in relation to a like |
| |
order made under that Schedule— |
| |
(a) | paragraph 3(1) to (3) and (7) (lump sums); |
| |
(b) | paragraph 11(2) to (4), 12(2), 13 and 14 (orders for sale); |
| |
(c) | paragraphs 17, 18 and 19(2) and (3) (pension sharing); |
| 25 |
(d) | paragraphs 25 and 26 (orders under Part 1 relating to pensions); |
| |
(e) | paragraphs 31 to 37 (orders under Part 1 relating to pensions where |
| |
Board has assumed responsibility for scheme); |
| |
(f) | paragraphs 47(1) to (4) and (6) and 49 (duration of orders); |
| |
(g) | paragraphs 50 to 54 and 57 to 62, except paragraph 50(1)(g) (variation |
| 30 |
| |
(h) | paragraphs 63 to 65 (arrears and repayments); |
| |
(i) | paragraphs 76 to 79 (drafting of instruments, bankruptcy, mental |
| |
disorder, and pension-sharing appeals). |
| |
(2) | Sub-paragraph (1)(d) does not apply where the court has jurisdiction to |
| 35 |
entertain an application for an order under paragraph 9 only because a |
| |
dwelling-house which was a civil partnership home of the civil partners is |
| |
situated in England or Wales. |
| |
(3) | Paragraph 27 of Schedule 5 (change of pension arrangement under which |
| |
rights are shared) applies in relation to an order made under paragraph 9 of |
| 40 |
this Schedule by virtue of sub-paragraph (1)(d) above as it applies to an |
| |
order made under Part 1 of Schedule 5 by virtue of paragraph 25 or 26 of that |
| |
| |
(4) | The Lord Chancellor may by regulations make for the purposes of this |
| |
Schedule provision corresponding to any provision which may be made by |
| 45 |
him under paragraph 28(1) to (3) of Schedule 5 (supplementary provision |
| |
about orders relating to pensions under Part 1 of that Schedule). |
| |
|
| |
|
| |
|
(5) | The power to make regulations under this paragraph is exercisable by |
| |
statutory instrument which is subject to annulment in pursuance of a |
| |
resolution of either House of Parliament. |
| |
Avoidance of transactions designed to defeat claims under paragraphs 5 and 9 |
| |
15 (1) | Sub-paragraphs (2) and (3) apply where one of the civil partners (“A”) is |
| 5 |
granted leave under paragraph 4 to make an application for an order under |
| |
| |
(2) | If the court is satisfied, on application by A, that the other civil partner (“B”) |
| |
is, with the intention of defeating a claim by A, about to— |
| |
(a) | make any disposition, or |
| 10 |
(b) | transfer out of the jurisdiction, or otherwise deal with, any property, |
| |
| 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 application by A— |
| |
(a) | that the other civil partner (“B”) has, with the intention of defeating |
| 15 |
a claim by A, made a reviewable disposition, and |
| |
(b) | that, if the disposition were set aside— |
| |
(i) | financial relief under paragraph 5 or 9, or |
| |
(ii) | different financial relief under paragraph 5 or 9, |
| |
| 20 |
| it may make an order setting aside the disposition. |
| |
| |
(a) | an order under paragraph 5 or 9 has been made by the court at the |
| |
instance of one of the civil partners (“A”), and |
| |
(b) | the court is satisfied, on application by A, that the other civil partner |
| 25 |
(“B”) has, with the intention of defeating a claim by A, made a |
| |
| |
| the court may make an order setting aside the disposition. |
| |
(5) | Where the court has jurisdiction to entertain an application for an order |
| |
under paragraph 9 only under paragraph 7(4), it shall not make any order |
| 30 |
under sub-paragraph (2), (3) or (4) in respect of any property other than the |
| |
dwelling-house concerned. |
| |
(6) | Where the court makes an order under sub-paragraph (3) or (4) setting aside |
| |
a disposition, it shall give such consequential directions as it thinks fit for |
| |
giving effect to the order (including directions requiring the making of any |
| 35 |
payments or the disposal of any property). |
| |
(7) | For the purposes of sub-paragraphs (3) and (4), but subject to sub-paragraph |
| |
(8), any disposition made by B is a “reviewable disposition” (whether made |
| |
before or after the commencement of A’s application under that sub- |
| |
| 40 |
(8) | A disposition made by B is not a reviewable disposition for those purposes |
| |
if made for valuable consideration (other than formation of a civil |
| |
partnership) 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 the part of B to |
| |
| 45 |
(9) | A reference in this paragraph to defeating a claim by one of the civil partners |
| |
| |
|
| |
|
| |
|
(a) | preventing financial relief being granted, or reducing the amount of |
| |
financial relief which might be granted, under paragraph 5 or 9 at the |
| |
instance of that civil partner, or |
| |
(b) | frustrating or impeding the enforcement of any order which might |
| |
be, or has been, made under paragraph 5 or 9 at the instance of that |
| 5 |
| |
Presumptions for the purposes of paragraph 15 |
| |
16 (1) | Sub-paragraph (3) applies where— |
| |
(a) | an application is made under paragraph 15(2) or (3) by one of the |
| |
civil partners with respect to— |
| 10 |
(i) | a disposition which took place less than 3 years before the |
| |
date of the application, or |
| |
(ii) | a disposition or other dealing with property which is about to |
| |
| |
(b) | the court is satisfied that the disposition or other dealing would |
| 15 |
(apart from paragraph 15 and this paragraph of this Schedule) have |
| |
the consequence of defeating a claim by the applicant. |
| |
(2) | Sub-paragraph (3) also applies where— |
| |
(a) | an application is made under paragraph 15(4) by one of the civil |
| |
partners with respect to a disposition which took place less than 3 |
| 20 |
years before the date of the application, and |
| |
(b) | the court is satisfied that the disposition has had the consequence of |
| |
defeating a claim by the applicant. |
| |
(3) | It shall be presumed, unless the contrary is shown, that the person who— |
| |
| 25 |
(b) | 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 the applicant’s claim. |
| |
(4) | A reference in this paragraph to defeating a claim by one of the civil partners |
| |
has the meaning given by paragraph 15(9). |
| 30 |
| |
Steps to prevent avoidance prior to application for leave under paragraph 4 |
| |
Prevention of transactions intended to defeat prospective claims under paragraphs 5 and 9 |
| |
17 (1) | If it appears to the court, on application by one of the persons (“A”) who |
| |
formed a civil partnership— |
| 35 |
(a) | that the civil partnership has been dissolved or annulled, or that the |
| |
civil partners have been legally separated, by means of judicial or |
| |
other proceedings in an overseas country, |
| |
(b) | that A intends to apply for leave to make an application for an order |
| |
under paragraph 9 as soon as he or she has been habitually resident |
| 40 |
in England and Wales for the period of one year, and |
| |
(c) | that the other civil partner (“B”) is, with the intention of defeating A’s |
| |
| |
(i) | make any disposition, or |
| |
|
| |
|