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 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
205

      (2)
If the court is not satisfied that it would be appropriate, the court shall
dismiss the application.
      (3)
The court must, in particular, have regard to the following matters—
(a)
the connection which the civil partners have with England and
Wales;
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—
(i)
the applicant, or
(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
be made;
30
(h)
the extent to which any order made under this Schedule is likely to
be enforceable;
(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—

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
206

(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
adjustment order,
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
Schedule.
      (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
(b)
if so, in what way,

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
has not reached 18.
      (3)
The court, in exercising its powers under paragraph 9 in relation to one of
the civil partners—
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
entitled,

(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.

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
207

      (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
      (9)
In this paragraph—
(a)
“pension arrangement” has the same meaning as in Part 4 of
Schedule 5,
(b)
references to benefits under a pension arrangement include any
benefits by way of pension, whether under a pension arrangement or
15
not, and
(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
in England or Wales
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
England or Wales.
      (2)
The court may make under paragraph 9 any one or more of the following
orders (but no other)—
25
(a)
an order that one of the civil partners shall pay to the other a
specified lump sum;
(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,
a specified lump sum;
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
interest—
(i)
to the other,
(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
the dwelling-house;

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
208

(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
dwelling-house.
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
sub-paragraph (5).
      (5)
That amount is—
(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
dwelling-house, and
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
codicil;
“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
such an order.
      (4)
Sub-paragraph (1) applies despite paragraph 10.
45
      (5)
In this paragraph—
“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 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
209

“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
this paragraph, and
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
partnership.
      (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
etc. of orders);
(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
Schedule.
      (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).

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
210

      (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
paragraph 9.
      (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,

would be granted to A,
20

it may make an order setting aside the disposition.
      (4)
If—
(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
reviewable disposition,

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-
paragraph).
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
defeat A’s claim.
45
      (9)
A reference in this paragraph to defeating a claim by one of the civil partners
is a reference to—

Civil Partnership Bill [HL]
Schedule 7 — Financial relief in England and Wales after overseas dissolution etc. of a civil partnership
Part 2 — Steps to prevent avoidance prior to application for leave under paragraph 4
211

(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
civil partner.
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
take place, and
(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—
(a)
disposed of, or
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
Part 2
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
claim, about to—
(i)
make any disposition, or