|
| |
|
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, |
| |
| |
(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 |
| |
| |
(b) | was domiciled in Northern Ireland on the date when the dissolution, |
| |
annulment or legal separation took effect in the overseas country in |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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— |
| |
| |
(ii) | a child of the family, |
| 45 |
|
| |
|
| |
|
| 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 |
| |
(h) | the extent to which any order made under this Schedule is likely to |
| |
| |
(i) | the length of time which has elapsed since the date of the dissolution, |
| |
annulment or legal separation. |
| 20 |
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 |
| |
| |
| 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 |
| |
| |
(3) | The court, in exercising its powers under paragraph 9 in relation to one of |
| |
| |
(a) | must in particular have regard to the matters mentioned in |
| 45 |
paragraph 16(2) of Schedule 15, and |
| |
|
| |
|
| |
|
(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 |
| |
| |
| (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 |
| |
(a) | “pension arrangement” has the same meaning as in Part 3 of |
| |
| |
(b) | references to benefits under a pension arrangement include any |
| |
benefits by way of pension, whether under a pension arrangement or |
| 40 |
| |
(c) | “PPF compensation” has the same meaning as in Part 6 of Schedule |
| |
| |
Restriction of powers under paragraph 9 where jurisdiction depends on civil partnership home |
| |
| 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 |
| |
| |
|
| |
|
| |
|
(2) | The court may make under paragraph 9 any one or more of the following |
| |
| |
(a) | an order that one of the civil partners shall pay to the other a |
| |
| |
(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, |
| |
| |
(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 |
| |
| 10 |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| 35 |
| |
(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 |
| |
| |
(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 |
|
| |
|
| |
|
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 |
| |
| |
| “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 |
| |
| |
(4) | Sub-paragraph (1) applies despite paragraph 10. |
| |
| |
| “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 |
| |
(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 |
| |
(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 |
| |
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 |
|
| |
|
| |
|
(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) |
| |
| 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 |
| |
| |
(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, |
| |
| |
|
| |
|
| |
|
| it may make an order setting aside the disposition. |
| |
| |
(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 |
| |
| |
| 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- |
| |
| 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 |
| |
| 25 |
(9) | A reference in this paragraph to defeating a claim by one of the civil partners |
| |
| |
(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 |
| |
| |
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 |
| |
(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 |
| |
|
| |
|