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 15 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 10 — Variation, discharge etc. of certain orders for financial relief
270

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
42(5).
Power to remit arrears
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
part of the order.
      (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
maintain
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
himself.
      (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
child reaches 18.
      (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-
paragraph, would be—
(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
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 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
made in proceedings—

Civil Partnership Bill [HL]
Schedule 15 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 10 — Variation, discharge etc. of certain orders for financial relief
271

(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))
may be exercised—
(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
been dealt with.
      (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
36) applies accordingly.
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—

Civil Partnership Bill [HL]
Schedule 15 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 10 — Variation, discharge etc. of certain orders for financial relief
272

(a)
to be made, or
(b)
to be secured,

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
order may be made by—
(a)
the person entitled to payments under the periodical payments
order, or
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
order.
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
this paragraph.
      (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—
(a)
to vary, or
35
(b)
to discharge,

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
55    (1)
If—
(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
between them,

Civil Partnership Bill [HL]
Schedule 15 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 11 — Arrears and repayments
273

(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.
      (2)
If—
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
discharge was made.
Part 11
30
Arrears and repayments
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
may—
(a)
refuse leave,
(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

Civil Partnership Bill [HL]
Schedule 15 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 11 — Arrears and repayments
274

(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.
      (2)
The orders are—
(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-
paragraph (2), or
(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
court.
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

Civil Partnership Bill [HL]
Schedule 15 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 11 — Arrears and repayments
275

in respect of a relevant period in the mistaken belief that the order
was still subsisting.
      (2)
“Relevant period” means a period after the date of the formation of the civil
partnership or marriage.
      (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,
may—
(i)
order the respondent to pay to the applicant such lesser sum
as it thinks fit, or
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
in the order.
      (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
question, 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
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
court.
      (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
with.
      (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.
     (10)
In this paragraph—

Civil Partnership Bill [HL]
Schedule 15 — Financial relief in the High Court or a county court etc.: Northern Ireland
Part 12 — Consent orders and maintenance agreements
276

“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.)).
Part 12
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.
      (3)
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;
20
“order for financial relief” means an order under any of Parts 1, 2, 3
and 8.
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—