|
| |
|
Powers to vary, discharge, suspend or revive order |
| |
46 (1) | If the court has made an order to which this Part applies, it may— |
| |
(a) | vary or discharge the order, |
| |
(b) | suspend any provision of it temporarily, or |
| |
(c) | revive the operation of any provision so suspended. |
| 5 |
(2) | Sub-paragraph (1) is subject to the provisions of this Part and paragraph |
| |
| |
| |
47 (1) | If the court has made an order referred to in paragraph 45(1)(a), (b), (c) or (d), |
| |
it may remit the payment of any arrears due under the order or under any |
| 10 |
| |
(2) | Sub-paragraph (1) is subject to the provisions of this Part. |
| |
Variation etc. of periodical or secured periodical payments orders made in cases of failure to |
| |
| |
48 (1) | An application for the variation under paragraph 46 of a periodical |
| 15 |
payments order or secured periodical payments order made under Part 8 in |
| |
favour of a child may, if the child has reached 16, be made by the child |
| |
| |
(2) | Sub-paragraph (3) applies if a periodical payments order made in favour of |
| |
a child under Part 8 ceases to have effect— |
| 20 |
(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 the |
| |
| |
(3) | If, on an application made to the court for an order under this sub- |
| |
paragraph, it appears to the court that— |
| 25 |
(a) | the child is, will be or, if an order were made under this sub- |
| |
| |
(i) | receiving instruction at an educational establishment, or |
| |
(ii) | undergoing training for a trade, profession or vocation, |
| |
| whether or not the child also is, will be or would be in gainful |
| 30 |
| |
(b) | there are special circumstances which justify the making of an order |
| |
under this sub-paragraph, |
| |
| the court may by order revive the order mentioned in sub-paragraph (2) |
| |
from a date specified by it. |
| 35 |
(4) | The date specified under sub-paragraph (3) must not be earlier than the date |
| |
of the application under that sub-paragraph. |
| |
(5) | If under sub-paragraph (3) the court revives an order it may exercise its |
| |
power under paragraph 46 in relation to the revived order. |
| |
Variation etc. of property adjustment and pension sharing orders |
| 40 |
49 | The court must not exercise the powers conferred by this Part in relation to |
| |
a property adjustment order falling within paragraph 7(1)(b), (c) or (d) |
| |
(order for settlement or for variation of settlement) except on an application |
| |
| |
|
| |
|
| |
|
(a) | for the rescission of the separation order by reference to which the |
| |
property adjustment order was made, or |
| |
(b) | for a dissolution order in relation to the civil partnership. |
| |
50 (1) | In relation to a pension sharing order which is made at a time before the |
| |
dissolution or nullity order has been made final— |
| 5 |
(a) | the powers conferred by this Part (by virtue of paragraph 45(1)(h)) |
| |
| |
(i) | only on an application made before the pension sharing order |
| |
has or, but for paragraph (b), would have taken effect, and |
| |
(ii) | only if, at the time when the application is made, the |
| 10 |
dissolution or nullity order has not been made final, and |
| |
(b) | an application made in accordance with paragraph (a) prevents the |
| |
pension sharing order from taking effect before the application has |
| |
| |
(2) | No variation of a pension sharing order is to be made so as to take effect |
| 15 |
before the order is made final. |
| |
(3) | The variation of a pension sharing order prevents the order taking effect |
| |
before the end of such period after the making of the variation as may be |
| |
prescribed by regulations made by the Lord Chancellor. |
| |
(4) | The power to make regulations under sub-paragraph (3) is exercisable by |
| 20 |
statutory rule for the purposes of the Statutory Rules (Northern Ireland) |
| |
Order 1979 (S.I. 1979/1573 (N.I. 12)). |
| |
(5) | Regulations under sub-paragraph (3) are subject to annulment in pursuance |
| |
of a resolution of either House of Parliament in the same manner as a |
| |
statutory instrument; and section 5 of the Statutory Instruments Act 1946 (c. |
| 25 |
| |
51 (1) | No property adjustment order or pension sharing order may be made on an |
| |
application for the variation of a periodical payments or secured periodical |
| |
payments order made (whether in favour of a civil partner or in favour of a |
| |
child of the family) under Part 1. |
| 30 |
(2) | No order for the payment of a lump sum may be made on an application for |
| |
the variation of a periodical payments or secured periodical payments order |
| |
in favour of a civil partner (whether made under Part 1 or 8). |
| |
Matters to which court is to have regard in exercising powers under this Part |
| |
52 (1) | In exercising the powers conferred by this Part the court must have regard |
| 35 |
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. |
| |
(2) | The circumstances of the case include, in particular, any change in any of the |
| |
matters to which the court was required to have regard when making the |
| |
order to which the application relates. |
| 40 |
(3) | Sub-paragraph (4) applies in the case of— |
| |
(a) | a periodical payments order, or |
| |
(b) | a secured periodical payments order, |
| |
| made on or after the making of a dissolution or nullity order. |
| |
(4) | The court must consider whether in all the circumstances, and after having |
| 45 |
regard to any such change, it would be appropriate to vary the order so that |
| |
payments under the order are required— |
| |
|
| |
|
| |
|
| |
| |
| only for such further period as will in the opinion of the court be sufficient |
| |
to enable the civil partner in whose favour the order was made to adjust |
| |
without undue hardship to the termination of those payments. |
| 5 |
(5) | If the civil partner against whom the order was made has died, the |
| |
circumstances of the case also include the changed circumstances resulting |
| |
from that civil partner’s death. |
| |
Variation of secured periodical payments order where person liable has died |
| |
53 (1) | This paragraph applies if the person liable to make payments under a |
| 10 |
secured periodical payments order has died. |
| |
(2) | Subject to sub-paragraph (3), an application under this Part relating to the |
| |
| |
(a) | the person entitled to payments under the periodical payments |
| |
| 15 |
(b) | the personal representatives of the deceased person. |
| |
(3) | No such application may be made without the leave of the court after the |
| |
end of 6 months from the date on which representation in regard to the |
| |
estate of that person is first taken out. |
| |
(4) | The personal representatives of the person who has died are not liable for |
| 20 |
having distributed any part of the estate of the deceased after the end of the |
| |
6 month period on the ground that they ought to have taken into account the |
| |
possibility that the court might allow an application under this paragraph to |
| |
be made after that period by the person entitled to payments under the |
| |
| 25 |
(5) | Sub-paragraph (4) 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 |
| |
| |
(6) | In considering for the purposes of sub-paragraph (3) the question when |
| |
representation was first taken out a grant limited to part of the estate is to be |
| 30 |
disregarded unless a grant limited to the remainder of the estate has |
| |
previously been made or is made at the same time. |
| |
Power to direct when variation etc. is to take effect |
| |
54 (1) | If the court, in exercise of its powers under this Part, decides— |
| |
| 35 |
| |
| a periodical payments or secured periodical payments order, it may direct |
| |
that the variation or discharge is not to take effect until the end of such |
| |
period as may be specified. |
| |
(2) | Sub-paragraph (1) is subject to paragraph 42(1) and (6). |
| 40 |
| |
(a) | a periodical payments or secured periodical payments order in |
| |
favour of more than one child (“the order”) is in force, |
| |
(b) | the order requires payments specified in it to be made to or for the |
| |
benefit of more than one child without apportioning those payments |
| 45 |
| |
|
| |
|
| |
|
(c) | a maintenance calculation (“the calculation”) is made with respect to |
| |
one or more, but not all, of the children with respect to whom those |
| |
payments are to be made, and |
| |
(d) | an application is made, before the end of the period of 6 months |
| |
beginning with the date on which the calculation was made, for the |
| 5 |
variation or discharge of the order, |
| |
| the court may, in exercise of its powers under this Part to vary or discharge |
| |
the order, direct that the variation or discharge is to take effect from the date |
| |
on which the calculation took effect or any later date. |
| |
| 10 |
(a) | an order (“the child order”) of a kind prescribed for the purposes of |
| |
Article 12(1) of the Child Support (Northern Ireland) Order 1991 (S.I. |
| |
1991/2628 (N.I. 23)) is affected by a maintenance calculation, |
| |
(b) | on the date on which the child order became so affected there was in |
| |
force a periodical payments or secured periodical payments order |
| 15 |
(“the civil partner’s order”) in favour of a civil partner having the |
| |
care of the child in whose favour the child order was made, and |
| |
(c) | an application is made, before the end of the period of 6 months |
| |
beginning with the date on which the maintenance calculation was |
| |
made, for the civil partner’s order to be varied or discharged, |
| 20 |
| the court may, in exercise of its powers under this Part to vary or discharge |
| |
the civil partner’s order, direct that the variation or discharge is to take effect |
| |
from the date on which the child order became so affected or any later date. |
| |
(3) | For the purposes of sub-paragraph (2), an order is affected if it ceases to have |
| |
effect or is modified by or under Article 12 of the 1991 Order. |
| 25 |
(4) | Sub-paragraphs (1) and (2) do not affect any other power of the court to |
| |
direct that the variation or discharge of an order under this Part is to take |
| |
effect from a date earlier than that on which the order for variation or |
| |
| |
| 30 |
| |
Payment of certain arrears unenforceable without the leave of the court |
| |
56 (1) | This paragraph applies if any arrears are due under— |
| |
(a) | an order under Part 1 (financial provision on dissolution etc.), |
| |
(b) | an order under Part 7 (maintenance pending outcome of dissolution, |
| 35 |
nullity or separation proceedings), or |
| |
(c) | an interim order under Part 8 (failure to maintain), |
| |
| and the arrears became due more than 12 months before proceedings to |
| |
enforce the payment of them are begun. |
| |
(2) | A person is not entitled to enforce through the court the payment of the |
| 40 |
arrears without the leave of that court. |
| |
(3) | The court hearing an application for the grant of leave under this paragraph |
| |
| |
| |
(b) | grant leave subject to such restrictions and conditions (including |
| 45 |
conditions as to the allowing of time for payment or the making of |
| |
payment by instalments) as that court thinks proper, or |
| |
|
| |
|
| |
|
(c) | remit the payment of the arrears or of any part of them. |
| |
Orders for repayment in certain cases of sums paid under certain orders |
| |
57 (1) | This paragraph applies if— |
| |
(a) | a person (“R”) is entitled to receive payments under an order listed |
| |
in sub-paragraph (4), and |
| 5 |
(b) | R’s circumstances or the circumstances of the person (“P”) liable to |
| |
make payments under the order have changed since the order was |
| |
made, or the circumstances have changed as a result of P’s death. |
| |
| |
(a) | any order under Part 7 (maintenance pending outcome of |
| 10 |
dissolution, nullity or separation proceedings); |
| |
(b) | any interim order under Part 8; |
| |
(c) | any periodical payments order; |
| |
(d) | any secured periodical payments order. |
| |
(3) | P or P’s personal representatives may (subject to sub-paragraph (7)) apply |
| 15 |
for an order under this paragraph against R or R’s personal representatives. |
| |
(4) | If it appears to the court that, because of the changed circumstances or P’s |
| |
death, the amount received by R in respect of a relevant period exceeds the |
| |
amount which P or P’s personal representatives should have been required |
| |
to pay, it may order the respondent to the application to pay to the applicant |
| 20 |
such sum, not exceeding the amount of the excess, as it thinks just. |
| |
(5) | “Relevant period” means a period after the circumstances changed or (as the |
| |
case may be) after P’s death. |
| |
(6) | An order under this paragraph for the payment of any sum may provide for |
| |
the payment of that sum by instalments of an amount specified in the order. |
| 25 |
(7) | An application under this paragraph— |
| |
(a) | may be made in proceedings in the High Court for— |
| |
(i) | the variation or discharge of the order listed in sub- |
| |
| |
(ii) | leave to enforce, or the enforcement of, the payment of |
| 30 |
arrears under that order, 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 (whether a civil partnership proceedings |
| |
county court or not), as the circumstances require. |
| 35 |
(8) | 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 |
| |
| |
Orders for repayment after cessation of order because of subsequent civil partnership etc. |
| 40 |
58 (1) | Sub-paragraphs (3) and (4) apply if— |
| |
(a) | a periodical payments or secured periodical payments order in |
| |
favour of a civil partner (“R”) has ceased to have effect because of the |
| |
formation of a subsequent civil partnership or marriage by R, and |
| |
(b) | the person liable to make payments under the order (“P”) (or P’s |
| 45 |
personal representatives) has made payments in accordance with it |
| |
|
| |
|
| |
|
in respect of a relevant period in the mistaken belief that the order |
| |
| |
(2) | “Relevant period” means a period after the date of the formation of the civil |
| |
| |
(3) | P (or P’s personal representatives) is not entitled to bring proceedings in |
| 5 |
respect of a cause of action arising out of the circumstances mentioned in |
| |
sub-paragraph (1)(a) and (b) against R (or R’s personal representatives). |
| |
(4) | But, on an application 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 |
| 10 |
amount of the payments made in respect of the relevant period, or |
| |
(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 |
| |
| 15 |
(ii) | dismiss the application. |
| |
(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— |
| 20 |
(a) | may be made in proceedings in the High Court for leave to enforce, |
| |
or the enforcement of, payment of arrears under the order in |
| |
| |
(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 |
| 25 |
the High Court or a county court (whether a civil partnership proceedings |
| |
county court or not), 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 |
| 30 |
| |
(8) | Subject to sub-paragraph (9), the collecting officer of a court of summary |
| |
jurisdiction to whom any payments under a payments order, or under an |
| |
attachment of earnings order made to secure payments under a payments |
| |
order, are required to be made is not liable— |
| 35 |
(a) | for any act done by him in pursuance of the payments order after the |
| |
date on which that order ceased to have effect because of the |
| |
formation of a subsequent civil partnership or marriage by R, or |
| |
(b) | for any act done by him after that date in accordance with any |
| |
statutory provision specifying how payments made to him in |
| 40 |
compliance with the attachment of earnings order are to be dealt |
| |
| |
(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 |
| |
the payments order not ceased to have effect, and |
| 45 |
(b) | was done before notice in writing of the formation of the civil |
| |
partnership or marriage, was given to him by or on behalf of R, P, or |
| |
R or P’s personal representatives. |
| |
| |
|
| |
|
| |
|
| “collecting officer” means the officer mentioned in section 15(2) of the |
| |
Maintenance and Affiliation Orders Act (Northern Ireland) 1966 (c. |
| |
35) or Article 85(2) of the Magistrates’ Courts (Northern Ireland) |
| |
Order 1981 (S.I. 1981/1675 (N.I. 26)); |
| |
| “statutory provision” has the meaning given by section 1(f) of the |
| 5 |
Interpretation Act (Northern Ireland) 1954 (1954 c. 33 (N.I.)). |
| |
| |
Consent orders and maintenance agreements |
| |
Consent orders for financial relief |
| |
59 (1) | Regardless of anything in the preceding provisions of this Schedule, on an |
| 10 |
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 |
| |
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 |
| 15 |
discharging an order for financial relief as it applies to an application for an |
| |
order for financial relief. |
| |
| |
| “consent order”, in relation to an application for an order, means an |
| |
order in the terms applied for to which the respondent agrees; |
| 20 |
| “order for financial relief” means an order under any of Parts 1, 2, 3 |
| |
| |
Meaning of “maintenance agreement” and “financial arrangements” |
| |
60 (1) | In this Part “maintenance agreement” means any written agreement |
| |
between the civil partners in a civil partnership which— |
| 25 |
(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. |
| 30 |
(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 |
| 35 |
(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 |
| 40 |
61 | 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— |
| |
|
| |
|