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 6 — Variation etc. of orders
298

(c)
an application is made, before the end of 6 months beginning with
the date on which the maintenance calculation was made, for the
civil partner’s order to be varied or revoked,

the court may, in exercise of its powers under this Part to vary or revoke the
civil partner’s order, direct that the variation or revocation is to take effect
5
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.
Matters to which court is to have regard in exercising powers under this Part
34    (1)
In exercising the powers conferred by this Part the court must, so far as it
10
appears to the court just to do so, give effect to any agreement which has
been reached between the civil partners in relation to the application.
      (2)
If—
(a)
there is no such agreement, or
(b)
the court decides not to give effect to the agreement,
15

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)
Those circumstances include any change in any of the matters—
(a)
to which the court was required to have regard when making the
20
order to which the application relates, or
(b)
in the case of an application for the variation or revocation of an
order made under Part 2 or on an appeal, to which the court would
have been required to have regard if that order had been made under
Part 1.
25
Variation of orders for periodical payments: further provisions
35    (1)
The power of the court under paragraphs 30 to 34 to vary an order for the
making of periodical payments includes power, if the court is satisfied that
payment has not been made in accordance with the order, to exercise one of
its powers under Article 85(3)(a) to (d) of the Magistrates’ Courts (Northern
30
Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).
      (2)
Sub-paragraph (1) is subject to paragraph 37.
36    (1)
If—
(a)
a court of summary jurisdiction has made an order under this
Schedule for the making of periodical payments, and
35
(b)
payments under the order are required to be made by any method of
payment falling within Article 85(7) of the 1981 Order (standing
order, etc.),

an application may be made under this sub-paragraph to the clerk of petty
sessions for the order to be varied as mentioned in sub-paragraph (2).
40
      (2)
Subject to sub-paragraph (4), if an application is made under sub-paragraph
(1), the clerk, after—
(a)
serving written notice of the application on the respondent, and
(b)
allowing the respondent, within the period of 14 days from the date
of the serving of that notice, an opportunity to make written
45
representations,

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 6 — Variation etc. of orders
299


may vary the order to provide that payments under the order are to be made
to the collecting officer.
      (3)
The clerk may proceed with an application under sub-paragraph (1) even if
the respondent has not received written notice of the application.
      (4)
If an application has been made under sub-paragraph (1), the clerk may, if
5
he considers it inappropriate to exercise his power under sub-paragraph (2),
refer the matter to the court which, subject to paragraph 37, may vary the
order by exercising one of its powers under Article 85(3)(a) to (d) of the 1981
Order.
37    (1)
Before varying the order by exercising one of its powers under Article
10
85(3)(a) to (d) of the 1981 Order, the court must have regard to any
representations made by the parties to the application.
      (2)
If the court does not propose to exercise its power under Article 85(3)(c) or
(d) of the 1981 Order, the court must, unless upon representations expressly
made in that behalf by the person to whom payments under the order are
15
required to be made it is satisfied that it is undesirable to do so, exercise its
power under Article 85(5)(b).
38    (1)
Article 85(5) of the 1981 Order (power of court to order that account be
opened) applies for the purposes of paragraphs 35 and 36(4) as it applies for
the purposes of Article 85.
20
      (2)
None of the powers of the court, or of the clerk of petty sessions, conferred
by paragraphs 35 to 37 and sub-paragraph (1) is exercisable in relation to an
order under this Schedule for the making of periodical payments which is
not a qualifying maintenance order (within the meaning of Article 85 of the
1981 Order).
25
Persons who may apply under this Part
39
An application under paragraph 30, 31 or 36 may be made—
(a)
if it is for the variation or revocation of an order under Part 1, 2, 3 or
4 for periodical payments, by either civil partner, and
(b)
if it is for the variation of an order under paragraph 2(1)(c) or Part 2
30
or 3 for periodical payments to or in respect of a child, also by the
child himself, if he has reached 16.
Revival of orders for periodical payments
40    (1)
If an order made by the court under this Schedule for the making of
periodical payments to or in respect of a child (other than an interim order)
35
ceases to have effect—
(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 he
reaches 18,

the child may apply to the court for an order for its revival.
40
      (2)
If on such an application it appears to the court that—
(a)
the child is, will be or (if an order were made under this sub-
paragraph) would be receiving instruction at an educational
establishment or undergoing training for a trade, profession or
vocation, whether or not while in gainful employment, or
45
(b)
there are special circumstances which justify the making of an order
under this sub-paragraph,

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 7 — Arrears and repayments
300


the court may by order to revive the order from such date as the court may
specify, not being earlier than the date of the making of the application.
      (3)
Any order revived under this paragraph may be varied or revoked under
paragraphs 30 to 34 in the same way as it could have been varied or revoked
had it continued in being.
5
Variation of instalments or remission of lump sum
41    (1)
If in the exercise of its powers under Article 97 of the 1981 Order the court
orders that a lump sum required to be paid under this Schedule is to be paid
by instalments, the court, on an application made by either the person liable
to pay or the person entitled to receive that sum, may vary that order by
10
varying—
(a)
the number of instalments payable,
(b)
the amount of any instalment payable, and
(c)
the date on which any instalment becomes payable.
      (2)
On the hearing of a complaint for the enforcement, revocation, suspension
15
or variation of an order under this Schedule which provides for the payment
of a lump sum the court may remit the whole or any part of that sum.
Supplementary provisions with respect to variation and revocation of orders
42
The powers of a court of summary jurisdiction to revoke, suspend, revive or
vary an order for the periodical payment of money and the power of the
20
clerk of petty sessions to vary such an order under Article 86 of the 1981
Order do not apply in relation to an order made under this Schedule.
Part 7
Arrears and repayments
Enforcement etc. of orders for payment of money
25
43
Article 36 of the Domestic Proceedings (Northern Ireland) Order 1980 (S.I.
1980/563 (N.I. 5)) applies in relation to orders under this Schedule as it
applies in relation to orders under that Order.
Orders for repayment after cessation of order because of subsequent civil partnership etc.
44    (1)
Sub-paragraphs (3) and (4) apply if—
30
(a)
an order made under paragraph 2(1)(a) or Part 2 or 3 has, under
paragraph 26(2), ceased to have effect because of the formation of a
subsequent civil partnership or marriage by the party (“R”) in whose
favour it was made, and
(b)
the person liable to make payments under the order (“P”) made
35
payments in accordance with it 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
subsequent civil partnership or marriage.
      (3)
No proceedings in respect of a cause of action arising out of the
40
circumstances mentioned in sub-paragraph (1)(a) and (b) is maintainable by
P (or P’s personal representatives) against R (or R’s personal
representatives).

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 7 — Arrears and repayments
301

      (4)
But on an application made 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 an application made under this
paragraph to pay to the applicant a sum equal to the amount of the
payments made in respect of the relevant period, or
5
(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
(ii)
dismiss the application.
10
      (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—
(a)
may be made in proceedings in the High Court for leave to enforce,
15
or in proceedings in the High Court or a court of summary
jurisdiction for the enforcement of, the payment of arrears under an
order made under paragraph 2(1)(a) or Part 2 or 3, 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
20
the High Court or a county court or a court of summary jurisdiction, as the
circumstances require.
      (7)
The jurisdiction conferred on a county court by this paragraph is exercisable
by a county court even though, because of the amount claimed in an
application under this paragraph, the jurisdiction would not but for this sub-
25
paragraph be exercisable by a county court.
      (8)
A person dissatisfied with an order made by a county court in the exercise
of the jurisdiction conferred by this paragraph or with the dismissal of any
application instituted by him under the provisions of this paragraph shall be
entitled to appeal from the order or from the dismissal as if the order or
30
dismissal had been made in exercise of the jurisdiction conferred by Part 3
of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3))
and the appeal brought under Part 6 of that Order, and Articles 61 (cases
stated by county court judge) and 62 (cases stated by High Court on appeal
from county court) of that Order shall apply accordingly.
35
      (9)
Subject to sub-paragraph (10), the collecting officer of a court of summary
jurisdiction to whom any payments under an order made under paragraph
2(1)(a) or Part 2 or 3, or under an attachment of earnings order made to
secure payments under the first-mentioned order, are required to be made
is not liable—
40
(a)
for any act done by him in pursuance of the first-mentioned order
after the date on which that order or a provision of it ceased to have
effect because of the formation of a subsequent civil partnership or
marriage by the person entitled to payments under it, and
(b)
for any act done by him after that date in accordance with any
45
statutory provision specifying how payments made to him in
compliance with the attachment of earnings order are to be dealt
with.
     (10)
Sub-paragraph (9) applies if (but only if) the act—
(a)
was one which he would have been under a duty to do had the order
50
under paragraph 2(1)(a) or Part 2 or 3 not ceased to have effect, and

Civil Partnership Bill [HL]
Schedule 16 — Financial relief in court of summary jurisdiction etc.: Northern Ireland
Part 8 — Supplementary
302

(b)
was done before notice in writing of the formation of the subsequent
civil partnership or marriage was given to him by or on behalf of—
(i)
the person entitled to payments under the order,
(ii)
the person liable to make payments under it, or
(iii)
the personal representatives of either of them.
5
     (11)
In this paragraph—
“collecting officer” means the officer mentioned in Article 85(2) or (3)
of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/
1675 (N.I. 26)), and
“statutory provision” has the meaning given by section 1(f) of the
10
Interpretation Act (Northern Ireland) 1954 (c. 33(N.I.)).
Part 8
Supplementary
Restrictions on making of orders under this Schedule: welfare of children
45
If—
15
(a)
an application is made by a civil partner for an order under Part 1, 2
or 3, and
(b)
there is a child of the family who is under 18,

the court must not dismiss or make a final order on the application until it
has decided whether to exercise any of its powers under the Children
20
(Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) with respect to the
child.
Application of certain provisions of the Domestic Proceedings (Northern Ireland) Order 1980
46
Articles 30 to 35 of the Domestic Proceedings (Northern Ireland) Order 1980
(S.I. 1980/563 (N.I. 5)) apply for the purposes of this Schedule as they apply
25
for the purposes of that Order.
Interpretation
47    (1)
In this Schedule “child of the family”, in relation to two people who are civil
partners of each other, means—
(a)
a child of both of them, and
30
(b)
any other child, other than a child placed with them as foster parents
by an authority or a voluntary organisation, who has been treated by
both the civil partners as a child of their family.
      (2)
In sub-paragraph (1) “authority” and “voluntary organisation” have the
same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/
35
755 (N.I. 2)).
      (3)
In any provision of this Schedule “the court” (except where the context
otherwise requires) means a court of summary jurisdiction which by virtue
of this Schedule or of rules of court has jurisdiction for the purposes of that
provision.
40
      (4)
References in this Schedule to a subsequent civil partnership include a civil
partnership which is by law void or voidable.

Civil Partnership Bill [HL]
Schedule 17 — Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
303

      (5)
References in this Schedule to a subsequent marriage include a marriage
which is by law void or voidable.
Schedule 17
Section 196(4)

Financial relief in Northern Ireland after overseas dissolution etc. of a civil
partnership
5
Part 1
Financial relief
Part applies where civil partnership has been dissolved etc. overseas
1     (1)
This Part of this Schedule applies where—
(a)
a civil partnership has been dissolved or annulled, or the civil
10
partners have been legally separated, by means of judicial or other
proceedings in an overseas country, and
(b)
the dissolution, annulment or legal separation is entitled to be
recognised as valid in Northern Ireland.
      (2)
This Part of this Schedule applies even if the date of the dissolution,
15
annulment or legal separation is earlier than the date on which the Part
comes into force.
      (3)
In this Schedule “overseas country” means a country or territory outside the
United Kingdom, the Channel Islands and the Isle of Man.
      (4)
In this Part of this Schedule “child of the family” means—
20
(a)
a child of both of the civil partners, and
(b)
any other child, other than a child placed with them as foster parents
or by an authority or voluntary organisation, who has been treated
by both the civil partners as a child of their family.
      (5)
In sub-paragraph (4) “authority” and “voluntary organisation” have the
25
same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/
755 (N.I. 2)).
Either civil partner may make application for financial relief
2     (1)
Either of the civil partners may make an application to the court for an order
under paragraph 9 or 13.
30
      (2)
The rights conferred by sub-paragraph (1) are subject to—
(a)
paragraph 3 (civil partner may not apply after forming subsequent
civil partnership etc.), and
(b)
paragraph 4 (application may not be made until leave to make it has
been granted).
35
      (3)
An application for an order under paragraph 9 or 13 must be made in a
manner prescribed by rules of court.
No application after formation of subsequent civil partnership or marriage
3     (1)
If—

Civil Partnership Bill [HL]
Schedule 17 — Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership
Part 1 — Financial relief
304

(a)
the civil partnership has been dissolved or annulled, and
(b)
after the dissolution or annulment, one of the civil partners forms a
subsequent civil partnership or marriage,

that civil partner shall not be entitled to make, in relation to the civil
partnership, an application for an order under paragraph 9 or 13.
5
      (2)
The reference in sub-paragraph (1) to the forming of a subsequent civil
partnership or marriage includes a reference to the forming of a civil
partnership or marriage which is by law void or voidable.
Leave of court required for making of application
4     (1)
No application for an order under paragraph 9 or 13 shall be made unless
10
the leave of the court has been obtained in accordance with rules of court.
      (2)
The court shall not grant leave under this paragraph unless it considers that
there is substantial ground for the making of an application for such an
order.
      (3)
The court may grant leave under this paragraph notwithstanding that an
15
order has been made by a court in a country outside Northern Ireland
requiring the other civil partner to make any payment, or transfer any
property, to the applicant or to a child of the family.
      (4)
Leave under this paragraph may be granted subject to such conditions as the
court thinks fit.
20
Interim orders for maintenance
5     (1)
Where—
(a)
leave is granted under paragraph 4, and
(b)
it appears to the court that the civil partner who applied for leave, or
any child of the family, is in immediate need of financial assistance,
25

the court may, subject to sub-paragraph (4), make an interim order for
maintenance.
      (2)
An interim order for maintenance is one requiring the other civil partner to
make—
(a)
to the applicant, or
30
(b)
to the child,

such periodical payments as the court thinks reasonable for such term as the
court thinks reasonable.
      (3)
The term must be one—
(a)
beginning not earlier than the date of the grant of leave, and
35
(b)
ending with the date of the determination of the application made
under the leave.
      (4)
If it appears to the court that the court will, in the event of an application
being made under the leave, have jurisdiction to entertain the application
only under paragraph 7(4), the court shall not make an interim order under
40
this paragraph.
      (5)
An interim order under this paragraph may be made subject to such
conditions as the court thinks fit.