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 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 1 — Failure to maintain etc.: financial provision
284

Schedule 16
Section 196(3)

Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 1
Failure to maintain etc.: financial provision
Circumstances in which orders under this Part may be made
5
1     (1)
On an application to it by one of the civil partners, the court may make any
one or more of the orders set out in paragraph 2 if it is satisfied that the other
civil partner—
(a)
has failed to provide reasonable maintenance for the applicant,
(b)
has failed to provide, or to make a proper contribution towards,
10
reasonable maintenance for any child of the family,
(c)
has behaved in such a way that the applicant cannot reasonably be
expected to live with the respondent, or
(d)
has deserted the applicant.
      (2)
The power of the court under sub-paragraph (1) is subject to the following
15
provisions of this Schedule.
The orders: periodical and secured periodical payments and lump sums
2     (1)
The orders are—
(a)
an order that the respondent must make to the applicant such
periodical payments for such term as may be specified;
20
(b)
an order that the respondent must pay to the applicant such lump
sum as may be specified;
(c)
an order that the respondent must make—
(i)
to the applicant for the benefit of a child of the family to
whom the application relates, or
25
(ii)
to a child of the family to whom the application relates, such
periodical payments for such term as may be specified;
(d)
an order that the respondent must pay such lump sum as may be
specified—
(i)
to the applicant for the benefit of a child of the family to
30
whom the application relates, or
(ii)
to a child of the family to whom the application relates.
      (2)
The amount of a lump sum specified under sub-paragraph (1)(b) or (d) must
not exceed—
(a)
£1,000, or
35
(b)
such larger amount as the Lord Chancellor may from time to time by
order fix for the purposes of this sub-paragraph.
      (3)
The power to make an order under sub-paragraph (2) is exercisable by
statutory rule for the purposes of the Statutory Rules (Northern Ireland)
Order 1979 (S.I. 1979/1573 (N.I. 12)).
40
      (4)
An order under sub-paragraph (2) is 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. 36)
applies accordingly.

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 1 — Failure to maintain etc.: financial provision
285

      (5)
“Specified” means specified in the order.
Particular provision that may be made by lump sum orders
3     (1)
An order under this Part for the payment of a lump sum may be made for
the purpose of enabling any liability or expenses reasonably incurred in
maintaining the applicant or any child of the family to whom the application
5
relates before the making of the order to be met.
      (2)
Sub-paragraph (1) does not restrict the power to make the orders set out in
paragraph 2(1)(b) and (d).
Matters to which court is to have regard in exercising its powers under this Part - general
4
If an application is made for an order under this Part, the court, in
10
deciding—
(a)
whether to exercise its powers under this Part, and
(b)
if so, in what way,

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
15
has not reached 18.
Particular matters to be taken into account when exercising powers in relation to civil partners
5     (1)
This paragraph applies in relation to the exercise by the court of its power to
make an order by virtue of paragraph 2(1)(a) or (b).
      (2)
The court must in particular have regard to—
20
(a)
the income, earning capacity, property and other financial resources
which each civil partner—
(i)
has, or
(ii)
is likely to have in the foreseeable future,

including, in the case of earning capacity, any increase in that
25
capacity which it would in the opinion of the court be reasonable to
expect the civil partner to take steps to acquire;
(b)
the financial needs, obligations and responsibilities which each civil
partner has or is likely to have in the foreseeable future;
(c)
the standard of living enjoyed by the civil partners before the
30
occurrence of the conduct which is alleged as the ground of the
application;
(d)
the age of each civil partner and the duration of the civil partnership;
(e)
any physical or mental disability of either civil partner;
(f)
the contributions which each civil partner has made or is likely in the
35
foreseeable future to make to the welfare of the family, including any
contribution by looking after the home or caring for the family;
(g)
the conduct of each civil partner, if that conduct is such that it would
in the opinion of the court be inequitable to disregard it.
Particular matters to be taken into account when exercising powers in relation to children
40
6     (1)
This paragraph applies in relation to the exercise by the court of its power to
make an order by virtue of paragraph 2(1)(c) or (d).
      (2)
The court must in particular have regard to—

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 1 — Failure to maintain etc.: financial provision
286

(a)
the financial needs of the child;
(b)
the income, earning capacity (if any), property and other financial
resources of the child;
(c)
any physical or mental disability of the child;
(d)
the standard of living enjoyed by the family before the occurrence of
5
the conduct which is alleged as the ground of the application;
(e)
the way in which the child was being and in which the civil partners
expected the child to be educated or trained;
(f)
the considerations mentioned in relation to the civil partners in
paragraph 5(2)(a) and (b).
10
      (3)
In relation to the exercise of its power to make an order in favour of a child
of the family who is not the respondent’s child, the court must also have
regard to—
(a)
whether the respondent has assumed any responsibility for the
child’s maintenance,
15
(b)
if so, the extent to which, and the basis on which, the respondent
assumed that responsibility and the length of time during which the
respondent discharged that responsibility;
(c)
whether in assuming and discharging that responsibility the
respondent did so knowing that the child was not the respondent’s
20
child;
(d)
the liability of any other person to maintain the child.
Reconciliation
7     (1)
If before the hearing of any evidence in proceedings on an application for an
order under this Part a statement is made to the court by or on behalf of the
25
civil partners showing a possibility of reconciliation between them, the court
must adjourn the proceedings for such period as it thinks fit.
      (2)
If at any stage of the proceedings on an application for an order under this
Part it appears to the court that there is a reasonable possibility of a
reconciliation between the civil partners, the court may adjourn the
30
proceedings for such period as it thinks fit to enable attempts to be made to
effect a reconciliation.
      (3)
If the court adjourns any proceedings under sub-paragraph (1) or (2), it may
request that—
(a)
a suitably qualified person acting under arrangements made by the
35
Department of Health, Social Services and Public Safety, or
(b)
any other person, willing and able to do so and acceptable to both
parties, whom the court may appoint,

should attempt to effect a reconciliation between the civil partners.
      (4)
If any such request is made, the person—
40
(a)
must report in writing to the court whether the attempt has been
successful, but
(b)
must not include in the report any other information.
      (5)
The powers conferred by this paragraph are additional to any other power
of the court to adjourn proceedings.
45

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 2 — Orders for agreed financial provision
287

Refusal of order in case more suitable for High Court
8     (1)
If on hearing an application for an order under this Part a court of summary
jurisdiction is of the opinion that any of the matters in question between the
civil partners would be more suitably dealt with by the High Court, the court
of summary jurisdiction must refuse to make any order on the application.
5
      (2)
No appeal lies from a refusal under sub-paragraph (1).
      (3)
But, in any proceedings in the High Court relating to or comprising the same
subject matter as an application in respect of which a court of summary
jurisdiction has refused to make any order, the High Court may order the
application to be reheard and determined by a court of summary jurisdiction
10
acting for the same petty sessions district as the court which refused to make
any order.
Part 2
Orders for agreed financial provision
Orders for payments which have been agreed by the parties
15
9     (1)
Either civil partner may apply to the court for an order under this Part on the
ground that that civil partner or the other civil partner has agreed to make
such financial provision as may be specified in the application.
      (2)
On such an application or on a request under paragraph 14, the court may
order that the applicant or the respondent (as the case may be) is to make the
20
financial provision specified in the application or request, if—
(a)
it is satisfied that the applicant or the respondent (as the case may be)
has agreed in writing to make that provision, and
(b)
it has no reason to think that it would be contrary to the interests of
justice to do so.
25
      (3)
Sub-paragraph (2) is subject to paragraph 12.
      (4)
The making of an order under this Part (“Part 2 order”) does not prevent the
making of an order under Part 1 (“Part 1 order”) on a subsequent application
for a Part 1 order.
      (5)
On the making of a Part 2 order, the Part 1 order ceases to have effect.
30
      (6)
Sub-paragraph (5) does not affect the power of the court under Part 6 to
revoke the Part 1 order.
Meaning of “financial provision” and of references to specified financial provision
10    (1)
In this Part “financial provision” means any one or more of the following—
(a)
the making of periodical payments by one civil partner to the other;
35
(b)
the payment of a lump sum by one civil partner to the other;
(c)
the making of periodical payments by one civil partner to a child of
the family or to the other civil partner for the benefit of such a child;
(d)
the payment by one party of a lump sum to a child of the family or
to the other civil partner for the benefit of such a child.
40
      (2)
Any reference in this Part to the financial provision specified in an
application under this Part or a request under paragraph 14 or specified by
the court is a reference—

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 2 — Orders for agreed financial provision
288

(a)
to the type of provision specified in the application or request or by
the court,
(b)
to the amount so specified as the amount of any payment to be made
under the application or order, and
(c)
in the case of periodical payments, to the term so specified as the
5
term for which the payments are to be made.
Evidence to be produced where respondent not present etc.
11    (1)
This paragraph applies if the respondent—
(a)
is not present, or
(b)
is not represented by counsel or a solicitor,
10

at the hearing of an application for an order under this Part.
      (2)
The court must not make an order under this Part unless there is produced
to it such evidence as may be prescribed by rules of court of—
(a)
the consent of the respondent to the making of the order,
(b)
the financial resources of the respondent, and
15
(c)
if the financial provision specified in the application includes or
consists of provision in respect of a child of the family to be made by
the applicant to the respondent for the benefit of the child or to the
child, the financial resources of the child.
Exercise of powers in relation to children
20
12    (1)
This paragraph applies if the financial provision specified in an application
under this Part or a request under paragraph 14—
(a)
includes, or
(b)
consists of,

provision in respect of a child of the family.
25
      (2)
The court must not make an order under this Part unless it considers that the
provision which the applicant or the respondent (as the case may be) has
agreed to make in respect of the child provides for, or makes a proper
contribution towards, the financial needs of the child.
Power to make alternative orders
30
13    (1)
This paragraph applies if on an application under this Part or a request
under paragraph 14 the court decides—
(a)
that it would be contrary to the interests of justice to make an order
for the making of the financial provision specified in the application
or request, or
35
(b)
that any financial provision which the applicant or the respondent
(as the case may be) has agreed to make in respect of a child of the
family does not provide for, or make a proper contribution towards,
the financial needs of that child.
      (2)
If the court is of the opinion—
40
(a)
that it would not be contrary to the interests of justice to make an
order for the making of some other financial provision specified by
the court, and

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 3 — Orders of court where civil partners living apart by agreement
289

(b)
that, in so far as that other financial provision contains any provision
for a child of the family, it provides for, or makes a proper
contribution towards, the financial needs of that child,

then, if both the civil partners agree, the court may order the applicant or the
respondent (as the case may be) is to make that other financial provision.
5
Request for order under this Part in proceedings under Part 1
14    (1)
On an application for an order under Part 1, both civil partners may, before
the determination of the application, request the court to make an order
under this Part that the applicant or the respondent (as the case may be) is to
make the financial provision specified in the request.
10
      (2)
If an order is made under this Part on a request under this paragraph the
application for the Part 1 order is to be treated as if it had been withdrawn.
      (3)
In any of the following provisions of this Schedule —
(a)
references to an application for an order under this Part include a
request under this paragraph, and
15
(b)
references to an applicant or respondent, in relation to any such
request, are to the applicant or respondent in relation to the pending
application under Part 1.
Part 3
Orders of court where civil partners living apart by agreement
20
Powers of court where civil partners are living apart by agreement
15    (1)
If—
(a)
the civil partners have been living apart for a continuous period
exceeding 3 months, neither civil partner having deserted the other,
and
25
(b)
one of the civil partners has been making periodical payments for the
benefit of the other civil partner or of a child of the family,

the other civil partner may apply to the court for an order under this Part.
      (2)
An application made under sub-paragraph (1) must specify the total amount
of the payments made by the respondent during the period of 3 months
30
immediately preceding the date of the making of the application.
      (3)
If on an application for an order under this Part the court is satisfied that the
respondent has made the payments specified in the application, the court
may make one or both of the orders set out in paragraph 16.
      (4)
Sub-paragraph (3) is subject to the provisions of this Schedule.
35
The orders that may be made under this Part
16    (1)
The orders are—
(a)
an order that the respondent is to make to the applicant such
periodical payments for such term as may be specified;
(b)
an order that the respondent is to make—
40
(i)
to the applicant for the benefit of a child of the family to
whom the application relates, or
(ii)
to a child of the family to whom the application relates,

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 4 — Interim orders
290


such periodical payments for such term as may be specified.
      (2)
“Specified” means specified in the order.
Restrictions on orders under this Part
17
The court in the exercise of its powers under this Part must not require—
(a)
the respondent to make payments whose total amount during any
5
period of 3 months exceeds the total amount paid by him for the
benefit of—
(i)
the applicant, or
(ii)
a child of the family,

during the period of 3 months immediately preceding the date of the
10
making of the application;
(b)
the respondent to make payments to or for the benefit of any person
which exceed in amount the payments which the court considers that
it would have required the respondent to make to or for the benefit
of that person on an application under Part 1;
15
(c)
payments to be made to or for the benefit of a child of the family who
is not the respondent’s child, unless the court considers that it would
have made an order in favour of that child on an application under
Part 1.
Relationship with powers under Part 1
20
18    (1)
Sub-paragraph (2) applies if on an application under this Part the court
considers that the orders which it has the power to make under this Part—
(a)
would not provide reasonable maintenance for the applicant, or
(b)
if the application relates to a child of the family, would not provide,
or make a proper contribution towards, reasonable maintenance for
25
that child.
      (2)
The court—
(a)
must refuse to make an order under this Part, but
(b)
may treat the application as if it were an application for an order
under Part 1.
30
Matters to be taken into consideration
19
Paragraphs 4 to 6 apply in relation to an application for an order under this
Part as they apply in relation to an application for an order under Part 1,
subject to the modification that for the reference in paragraph 5(2)(c) to the
occurrence of the conduct which is alleged as the ground of the application
35
substitute a reference to the living apart of the civil partners.
Part 4
Interim orders
Circumstances in which interim orders may be made
20    (1)
This paragraph applies if an application has been made for an order under
40
Part 1, 2 or 3.
      (2)
The court may make an interim order—