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Civil Partnership Bill [HL]


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

305

 

Paragraphs 7 and 8 apply where application made for relief under paragraph 9 or 13

6          

Paragraphs 7 and 8 apply where—

(a)   

one of the civil partners has been granted leave under paragraph 4,

and

(b)   

acting under the leave, that civil partner makes an application for an

5

order under paragraph 9 or 13.

Jurisdiction of the court

7     (1)  

The court shall have jurisdiction to entertain the application only if one or

more of the following jurisdictional requirements is satisfied.

      (2)  

The first requirement is that either of the civil partners—

10

(a)   

was domiciled in Northern Ireland on the date when the leave was

applied for, or

(b)   

was domiciled in Northern Ireland on the date when the dissolution,

annulment or legal separation took effect in the overseas country in

which it was obtained.

15

      (3)  

The second is that either of the civil partners—

(a)   

was habitually resident in Northern Ireland throughout the period of

one year ending with the date when the leave was applied for, or

(b)   

was habitually resident in Northern Ireland throughout the period of

one year ending with the date on which the dissolution, annulment

20

or legal separation took effect in the overseas country in which it was

obtained.

      (4)  

The third is that either or both of the civil partners had, at the date when the

leave was applied for, a beneficial interest in possession in a dwelling-house

situated in Northern Ireland which was at some time during the civil

25

partnership a civil partnership home of the civil partners.

      (5)  

In sub-paragraph (4) “possession” includes receipt of, or the right to receive,

rents and profits, but here “rent” does not include mortgage interest.

Duty of the court to consider whether Northern Ireland is appropriate venue for application

8     (1)  

Before deciding the application, the court must consider whether in all the

30

circumstances of the case it would be appropriate for an order of the kind

applied for to be made by a court in Northern Ireland.

      (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—

35

(a)   

the connection which the civil partners have with Northern Ireland;

(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

40

outside Northern Ireland;

(d)   

any financial benefit which, in consequence of the dissolution,

annulment or legal separation—

(i)   

the applicant, or

(ii)   

a child of the family,

45

 

 

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

306

 

   

has received, or is likely to receive, by virtue of any agreement or the

operation of the law of a country outside Northern Ireland;

(e)   

in a case where an order has been made by a court in a country

outside Northern Ireland requiring the other civil partner— 

(i)   

to make any payment, or

5

(ii)   

to transfer any property,

   

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

10

relief from the other civil partner under the law of any country

outside Northern Ireland and, if the applicant has omitted to exercise

that right, the reason for that omission;

(g)   

the availability in Northern Ireland of any property in respect of

which an order under this Schedule in favour of the applicant could

15

be made;

(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.

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Orders for financial provision, property adjustment and pension sharing

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

25

Part 1, 2 or 3 of Schedule 15 (financial provision, property adjustment and

pension sharing) if a dissolution order or nullity order had been made in

respect of the civil partnership under Chapter 2 of Part 4 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

30

Part 1 or 2 of Schedule 15 (financial provision and property adjustment) if a

separation order had been made in respect of the civil partners under

Chapter 2 of Part 4 of this Act.

      (4)  

The powers under sub-paragraphs (2) and (3) are subject to paragraph 11.

Matters to which court is to have regard in exercising its powers under paragraph 9

35

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.

      (2)  

The court must have regard to all the circumstances of the case, giving first

40

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—

(a)   

must in particular have regard to the matters mentioned in

45

paragraph 16(2) of Schedule 15, and

 

 

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

307

 

(b)   

shall be under duties corresponding to those imposed by sub-

paragraphs (2) and (3) of paragraph 18 of that Schedule (duties to

consider termination of financial obligations) where it decides to

exercise under paragraph 9 powers corresponding to the powers

referred to in those sub-paragraphs.

5

      (4)  

The matters to which the court is to have regard under sub-paragraph (3)(a),

so far as relating to paragraph 16(2)(a) of Schedule 15 (regard to be had to

financial resources), include—

(a)   

any benefits under a pension arrangement which either of the civil

partners has or is likely to have, and

10

(b)   

any PPF compensation to which a civil partner is or is likely to be

entitled,

           

(whether or not in the foreseeable future).

      (5)  

The matters to which the court is to have regard under sub-paragraph (3)(a),

so far as relating to paragraph 16(2)(h) of Schedule 15 (regard to be had to

15

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

partners will lose the chance of acquiring, and

(b)   

any PPF compensation which, because of the making of the

20

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

of the family, must in particular have regard to the matters mentioned in

paragraph 17(2) of Schedule 15.

25

      (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 17(3) of Schedule 15.

      (8)  

Where an order has been made by a court outside Northern Ireland for—

(a)   

the making of payments, or

30

(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.

35

      (9)  

In this paragraph—

(a)   

“pension arrangement” has the same meaning as in Part 3 of

Schedule 15,

(b)   

references to benefits under a pension arrangement include any

benefits by way of pension, whether under a pension arrangement or

40

not, and

(c)   

“PPF compensation” has the same meaning as in Part 6 of Schedule

15.

Restriction of powers under paragraph 9 where jurisdiction depends on civil partnership home

in Northern Ireland

45

11    (1)  

Sub-paragraphs (2) to (4) apply where the court has jurisdiction to 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

Northern Ireland.

 

 

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

308

 

      (2)  

The court may make under paragraph 9 any one or more of the following

orders (but no other)—

(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

5

family, or to a specified person for the benefit of a child of the family,

a specified lump sum;

(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—

10

(i)   

to the other, 

(ii)   

to a child of the family, or

(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

15

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

(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

20

(ii)   

either or any of them,

   

a relevant settlement so far as that settlement relates to an interest in

the dwelling-house;

(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

25

interest in the dwelling-house;

(g)   

an order for the sale of the interest of one of the civil partners in the

dwelling-house.

      (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

30

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

of the amounts of the lump sums must not exceed the amount specified in

sub-paragraph (5).

35

      (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

amount of the proceeds of sale of that interest after deducting from

those proceeds any costs incurred in the sale of that interest;

40

(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

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

45

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

(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

50

 

 

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

309

 

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)—

“relevant settlement” means a settlement made, during the

subsistence of the civil partnership or in anticipation of its

5

formation, on the civil partners, including one made by will or

codicil;

“specified” means specified in the order.

Consent orders under paragraph 9

12    (1)  

On an application for a consent order under paragraph 9, the court may

10

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

are other circumstances into which it ought to inquire.

      (3)  

Sub-paragraph (1) applies to an application for a consent order varying or

15

discharging an order under paragraph 9 as it applies to an application for

such an order.

      (4)  

Sub-paragraph (1) applies despite paragraph 10.

      (5)  

In this paragraph—

“consent order”, in relation to an application for an order, means an

20

order in the terms applied for to which the respondent agrees;

“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

25

this paragraph, and

(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 Northern

Ireland by virtue of a tenancy which is a tenancy mentioned in

Schedule 2 to the Family Homes and Domestic Violence (Northern

30

Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)).

      (2)  

The court may make in relation to that dwelling-house any order which it

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 15 to this Act with respect to the civil

35

partnership.

      (3)  

The provisions of paragraphs 9, 10 and 13(1) of Schedule 2 to the Family

Homes and Domestic Violence (Northern Ireland) Order 1998 (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

40

Part 2 of that Schedule.

Application to orders under paragraphs 5 and 9 of provisions of Schedule 15

14    (1)  

The following provisions of Schedule 15 apply in relation to an order made

under paragraph 5 or 9 of this Schedule as they apply in relation to a like

order made under that Schedule—

45

 

 

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

310

 

(a)   

paragraph 3(1) to (3) and (7) (lump sums);

(b)   

paragraphs 12, 13 and 14(2) to (4) (pension sharing);

(c)   

paragraphs 20 and 21 (orders under Part 1 relating to pensions);

(d)   

paragraphs 26 to 32 (orders under Part 1 relating to pensions where

Board has assumed responsibility for scheme);

5

(e)   

paragraphs 42(1) to (4) and (6) and 44 (duration of orders);

(f)   

paragraphs 45 to 47, and 50 to 55, except paragraph 45(1)(g)

(variation etc. of orders);

(g)   

paragraphs 56 to 58 (arrears and repayments);

(h)   

paragraphs 71 to 74 (drafting of instruments, bankruptcy, mental

10

disorder, and pension-sharing appeals).

      (2)  

Sub-paragraph (1)(d) does not apply where the court has jurisdiction to

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 Northern Ireland.

15

      (3)  

Paragraph 22 of Schedule 15 (change of pension arrangement under which

rights are shared) applies in relation to an order made under paragraph 9 of

this Schedule by virtue of sub-paragraph (1)(d) as it applies to an order made

under Part 1 of Schedule 15 by virtue of paragraph 20 or 21 of that Schedule.

      (4)  

The Lord Chancellor may by regulations make for the purposes of this

20

Schedule provision corresponding to any provision which may be made by

him under paragraph 23(1) to (3) of Schedule 15 (supplementary provision

about orders relating to pensions under Part 1 of that Schedule).

      (5)  

The power to make regulations under this paragraph is exercisable by

statutory rule for the purposes of the Statutory Rules (Northern Ireland)

25

Order 1979 (S.I. 1979/1573 (N.I. 12)).

      (6)  

Regulations under this paragraph 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. 36)

applies accordingly.

30

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

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”)

35

is, with the intention of defeating a claim by A, about to—

(a)   

make any disposition, or

(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.

40

      (3)  

If the court is satisfied, on application by A—

(a)   

that the other civil partner (“B”) has, with the intention of defeating

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

45

(ii)   

different financial relief under paragraph 5 or 9,

   

would be granted to A,

 

 

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

311

 

           

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

5

(“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

10

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

15

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).

20

      (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.

25

      (9)  

A reference in this paragraph to defeating a claim by one of the civil partners

is a reference to—

(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

30

(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

civil partner.

Presumptions for the purposes of paragraph 15

16    (1)  

Sub-paragraph (3) applies where—

35

(a)   

an application is made under paragraph 15(2) or (3) by one of the

civil partners with respect to—

(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

40

take place, and

(b)   

the court is satisfied that the disposition or other dealing would

(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—

45

(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

years before the date of the application, and

 

 

 
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