Civil Partnership Act 2004 (c. 33)

(The document as of February, 2008)

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corresponding Northern Ireland legislation.

(2) References in this Part to the Board assuming responsibility for a scheme are to the Board assuming responsibility for the scheme in accordance with--

(a) Chapter 3 of Part 2 of the 2004 Act (pension protection), or

(b) corresponding Northern Ireland legislation.

Part 8 Maintenance pending outcome of dissolution, nullity or separation proceedings

38 On an application for a dissolution, nullity or separation order, the court may make an order requiring either civil partner to make to the other for the other's maintenance such periodical payments for such term--

(a) beginning no earlier than the date on which the application was made, and

(b) ending with the date on which the proceedings are determined,

as the court thinks reasonable.

Part 9 Failure to maintain: financial provision (and interim orders)

Circumstances in which orders under this Part may be made

39 (1) Either civil partner in a subsisting civil partnership may apply to the court for an order under this Part on the ground that the other civil partner ("the respondent")--

(a) has failed to provide reasonable maintenance for the applicant, or

(b) has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family.

(2) The court must not entertain an application under this paragraph unless--

(a) the applicant or the respondent is domiciled in England and Wales on the date of the application,

(b) the applicant has been habitually resident there throughout the period of 1 year ending with that date, or

(3) If, on an application under this paragraph, it appears to the court that--

(a) the applicant or any child of the family to whom the application relates is in immediate need of financial assistance, but

(b) it is not yet possible to determine what order, if any, should be made on the application,

the court may make an interim order.

(4) If, on an application under this paragraph, the applicant satisfies the court of a ground mentioned in sub-paragraph (1), the court may make one or more of the orders set out in paragraph 41.

Interim orders

40 An interim order is an order requiring the respondent to make to the applicant, until the determination of the application, such periodical payments as the court thinks reasonable.

Orders that may be made where failure to maintain established

41 (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;

(b) an order that the respondent must secure to the applicant, to the satisfaction of the court, such periodical payments for such term as may be specified;

(d) an order that the respondent must make such periodical payments for such term as may be specified--

(i) to such person as may be specified, for the benefit of the child to whom the application relates, or

(ii) to the child to whom the application relates;

(e) an order that the respondent must secure--

(i) to such person as may be specified for the benefit of the child to whom the application relates, or

(ii) to the child to whom the application relates,

to the satisfaction of the court, such periodical payments for such term as may be specified;

(f) an order that the respondent must pay such lump sum as may be specified--

(i) to such person as may be specified for the benefit of the child to whom the application relates, or

(ii) to the child to whom the application relates.

(2) In this Part "specified" means specified in the order.

Particular provision that may be made by lump sum orders

42 (1) An order under this Part for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the applicant or any child of the family to whom the application relates before the making of the application to be met.

(2) An order under this Part for the payment of a lump sum may--

(a) provide for its payment by instalments of such amount as may be specified, and

(b) require the payment of the instalments to be secured to the satisfaction of the court.

(3) Sub-paragraphs (1) and (2) do not restrict the power to make an order by virtue of paragraph 41(1)(c) or (f).

Matters to which the court is to have regard on application under paragraph 39(1)(a)

43 (1) This paragraph applies if an application under paragraph 39 is made on the ground mentioned in paragraph 39(1)(a).

(2) In deciding--

(a) whether the respondent has failed to provide reasonable maintenance for the applicant, and

(b) what order, if any, to make under this Part in favour of the applicant,

the court must have regard to all the circumstances of the case including the matters mentioned in paragraph 21(2).

(3) If an application is also made under paragraph 39 in respect of a child of the family who has not reached 18, the court must give first consideration to the welfare of the child while under 18.

(4) Paragraph 21(2)(c) has effect as if for the reference in it to the breakdown of the civil partnership there were substituted a reference to the failure to provide reasonable maintenance for the applicant.

Matters to which the court is to have regard on application under paragraph 39(1)(b)

44 (1) This paragraph applies if an application under paragraph 39 is made on the ground mentioned in paragraph 39(1)(b).

(2) In deciding--

(a) whether the respondent has failed to provide, or to make a proper contribution towards, reasonable maintenance for the child of the family to whom the application relates, and

(b) what order, if any, to make under this Part in favour of the child,

the court must have regard to all the circumstances of the case.

(3) Those circumstances include--

(a) the matters mentioned in paragraph 22(2)(a) to (e), and

(b) if the child of the family to whom the application relates is not the child of the respondent, the matters mentioned in paragraph 22(3).

(4) Paragraph 21(2)(c) (as it applies by virtue of paragraph 22(2)(e)) has effect as if for the reference in it to the breakdown of the civil partnership there were substituted a reference to--

(a) the failure to provide, or

(b) the failure to make a proper contribution towards,

reasonable maintenance for the child of the family to whom the application relates.

Restrictions on making orders under this Part

45 The power to make an order under paragraph 41(1)(d), (e) or (f) is subject to paragraph 49(1) and (5) (restrictions on orders in favour of children who have reached 18).

Part 10 Commencement of certain proceedings and duration of certain orders

Commencement of proceedings for ancillary relief, etc.

46 (1) Sub-paragraph (2) applies if an application for a dissolution, nullity or separation order has been made.

(2) Subject to sub-paragraph (3), proceedings for--

(a) an order under Part 1 (financial provision on dissolution etc.),

(b) a property adjustment order, or

may be begun (subject to and in accordance with rules of court) at any time after the presentation of the application.

(3) Rules of court may provide, in such cases as may be prescribed by the rules, that--

(a) an application for any such relief as is mentioned in sub-paragraph (2) must be made in the application or response, and

(b) an application for any such relief which--

(i) is not so made, or

(ii) is not made until after the end of such period following the presentation of the application or filing of the response as may be so prescribed,

may be made only with the leave of the court.

Duration of periodical and secured periodical payments orders for a civil partner

47 (1) The court may specify in a periodical payments or secured periodical payments order in favour of a civil partner such term as it thinks fit, except that the term must not--

(a) begin before the date of the making of an application for the order, or

(b) extend beyond the limits given in sub-paragraphs (2) and (3).

(2) The limits in the case of a periodical payments order are--

(a) the death of either civil partner;

(b) where the order is made on or after the making of a dissolution or nullity order, the formation of a subsequent civil partnership or marriage by the civil partner in whose favour the order is made.

(3) The limits in the case of a secured periodical payments order are--

(a) the death of the civil partner in whose favour the order is made;

(4) In the case of an order made on or after the making of a dissolution or nullity order, sub-paragraphs (1) to (3) are subject to paragraphs 23(3) and 59(4).

(5) If a periodical payments or secured periodical payments order in favour of a civil partner is made on or after the making of a dissolution or nullity order, the court may direct that that civil partner is not entitled to apply under paragraph 51 for the extension of the term specified in the order.

(6) If--

(a) a periodical payments or secured periodical payments order in favour of a civil partner is made otherwise than on or after the making of a dissolution or nullity order, and

(b) the civil partnership is subsequently dissolved or annulled but the order continues in force,

the order ceases to have effect (regardless of anything in it) on the formation of a subsequent civil partnership or marriage by that civil partner, except in relation to any arrears due under it on the date of its formation.

Subsequent civil partnership or marriage

48 If after the making of a dissolution or nullity order one of the civil partners forms a subsequent civil partnership or marriage, that civil partner is not entitled to apply, by reference to the dissolution or nullity order, for--

(a) an order under Part 1 in that civil partner's favour, or

(b) a property adjustment order,

against the other civil partner in the dissolved or annulled civil partnership.

Duration of continuing orders in favour of children, and age limit on making certain orders in their favour

49 (1) Subject to sub-paragraph (5)--

(a) no order under Part 1,

(b) no property adjustment order made by virtue of paragraph 7(1)(a) (transfer of property), and

is to be made in favour of a child who has reached 18.

(2) The term to be specified in a periodical payments or secured periodical payments order in favour of a child may begin with--

(a) the date of the making of an application for the order or a later date, or

(b) a date ascertained in accordance with sub-paragraph (7) or (8).

(3) The term to be specified in such an order--

(a) must not in the first instance extend beyond the date of the birthday of the child next following the child's reaching the upper limit of the compulsory school age unless the court considers that in the circumstances of the case the welfare of the child requires that it should extend to a later date, and

(b) must not in any event, subject to sub-paragraph (5), extend beyond the date of the child's 18th birthday.

(4) Sub-paragraph (3)(a) must be read with section 8 of the Education Act 1996 (c. 56) (which applies to determine for the purposes of any enactment whether a person is of compulsory school age).

(5) Sub-paragraphs (1) and (3)(b) do not apply in the case of a child if it appears to the court that--

(a) the child is, or will be, or, if an order were made without complying with either or both of those provisions, 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 employment, or

(b) there are special circumstances which justify the making of an order without complying with either or both of sub-paragraphs (1) and (3)(b).

(6) A periodical payments order in favour of a child, regardless of anything in the order, ceases to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the order on the date of the death.

(7) If--

(a) a maintenance calculation ("the current calculation") is in force with respect to a child, and

(b) an application is made under this Schedule for a periodical payments or secured periodical payments order in favour of that child--

(i) in accordance with section 8 of the Child Support Act 1991 (c. 48), and

(ii) before the end of 6 months beginning with the making of the current calculation,

the term to be specified in any such order made on that application may be expressed to begin on, or at any time after, the earliest permitted date.

(8) "The earliest permitted date" is whichever is the later of--

(a) the date 6 months before the application is made, or

(b) the date on which the current calculation took effect or, where successive maintenance calculations have been continuously in force with respect to a child, on which the first of those calculations took effect.

(9) If--

(a) a maintenance calculation ceases to have effect by or under any provision of the 1991 Act, and

(b) an application is made, before the end of 6 months beginning with the relevant date, for a periodical payments or secured periodical payments order in favour of a child with respect to whom that maintenance calculation was in force immediately before it ceased to have effect,

the term to be specified in any such order made on that application may begin with the date on which that maintenance calculation ceased to have effect or any later date.

(10) "The relevant date" means the date on which the maintenance calculation ceased to have effect.

(11) In this paragraph "maintenance calculation" has the same meaning as it has in the 1991 Act by virtue of section 54 of the 1991 Act as read with any regulations in force under that section.

Part 11 Variation, discharge etc. of certain orders for financial relief

Orders etc. to which this Part applies

50 (1) This Part applies to the following orders--

(a) a periodical payments order under Part 1 (financial provision on dissolution etc.) or Part 9 (failure to maintain);

(b) a secured periodical payments order under Part 1 or 9;

(d) an interim order under Part 9;

(e) an order made under Part 1 by virtue of paragraph 3(3) or under Part 9 by virtue of paragraph 42(2) (lump sum by instalments);

(f) a deferred order made under Part 1 by virtue of paragraph 2(1)(c) (lump sum for civil partner) which includes provision made by virtue of--

(i) paragraph 25(2), or

(ii) paragraph 26,

(provision in respect of pension rights);

(g) a property adjustment order made on or after the making of a separation order by virtue of paragraph 7(1)(b), (c) or (d) (order for settlement or variation of settlement);

(h) a sale of property order;

(i) a pension sharing order made before the dissolution or nullity order has been made final.

(2) If the court has made an order referred to in sub-paragraph (1)(f)(ii), this Part ceases to apply to the order on the death of either of the civil partners.

(3) The powers exercisable by the court under this Part in relation to an order are also exercisable in relation to any instrument executed in pursuance of the order.

Powers to vary, discharge, suspend or revive order

51 (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

(2) Sub-paragraph (1) is subject to the provisions of this Part and paragraph 47(5).

Power to remit arrears

52 (1) If the court has made an order referred to in paragraph 50(1)(a), (b), (c) or (d), it may remit the payment of any arrears due under the order or under any part of the order.

(2) Sub-paragraph (1) is subject to the provisions of this Part.

Additional powers on discharging or varying a periodical or secured periodical payments order after dissolution of civil partnership

53 (1) Sub-paragraph (2) applies if, after the dissolution of a civil partnership, the court--

(a) discharges a periodical payments order or secured periodical payments order made in favour of a civil partner, or

(b) varies such an order so that payments under the order are required to be made or secured only for such further period as is determined by the court.

(2) The court may make supplemental provision consisting of any of the following--

(a) an order for the payment of a lump sum in favour of one of the civil partners;

(b) one or more property adjustment orders in favour of one of the civil partners;

(d) a direction that the civil partner in whose favour the original order discharged or varied was made is not entitled to make any further application for--

(i) a periodical payments or secured periodical payments order, or

(ii) an extension of the period to which the original order is limited by any variation made by the court.

(3) The power under sub-paragraph (2) is in addition to any power the court has apart from that sub-paragraph.

54 (1) An order for the payment of a lump sum under paragraph 53 may--

(a) provide for the payment of it by instalments of such amount as may be specified, and

(b) require the payment of the instalments to be secured to the satisfaction of the court.

(2) Sub-paragraphs (5) and (6) of paragraph 3 (interest on deferred instalments) apply where the court makes an order for the payment of a lump sum under paragraph 53 as they apply where it makes such an order under Part 1.

(3) If under paragraph 53 the court makes more than one property adjustment order in favour of the same civil partner, each of those orders must fall within a different paragraph of paragraph 7(1) (types of property adjustment orders).

(4) Part 3 (orders for the sale of property) and paragraph 76 (direction for settlement of instrument) apply where the court makes a property adjustment order under paragraph 53 as they apply where it makes any other property adjustment order.

(5) Paragraph 18 (restrictions on making of pension sharing order) applies in relation to a pension sharing order under paragraph 53 as it applies in relation to any other pension sharing order.

Variation etc. of periodical or secured periodical payments orders made in cases of failure to maintain

55 (1) An application for the variation under paragraph 51 of a periodical payments order or secured periodical payments order made under Part 9 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 9 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 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--

(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 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 such date as it may specify.

(4) A 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 51 in relation to the revived order.

Variation etc. of property adjustment and pension sharing orders

56 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--

(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.

57 (1) In relation to a pension sharing order which is made at a time before the dissolution or nullity order has been made final--

(a) the powers conferred by this Part (by virtue of paragraph 50(1)(i)) 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 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 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 statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

58 (1) Sub-paragraphs (2) and (3)--

(a) are subject to paragraphs 53 and 54, and

(b) do not affect any power exercisable by virtue of paragraph 50(e), (f), (g) or (i) or otherwise than by virtue of this Part.

(2) 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.

(3) 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 9).

Matters to which court is to have regard in exercising powers under this Part

59 (1) In exercising the powers conferred by this Part 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.

(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.

(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 regard to any such change, it would be appropriate to vary the order so that payments under the order are required--

(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) In considering what further period will be sufficient, the court must, if the civil partnership has been dissolved, take into account any proposed exercise by it of its powers under paragraph 53.

(6) 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

60 (1) This paragraph applies if the person liable to make payments under a secured periodical payments order has died.

(2) Subject to sub-paragraph (3), an application under this Part relating to the order (and to any sale of property order which requires the proceeds of sale of property to be used for securing those payments) may be made by--

(a) the person entitled to payments under the periodical payments order, or

(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 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.

(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) a grant limited to settled land or to trust property is to be disregarded, and

(b) a grant limited to real estate or to personal estate is to be 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

61 (1) If the court, in exercise of its powers under this Part, decides--

(a) to vary, or

(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 in the order.

(2) Sub-paragraph (1) is subject to paragraph 47(1) and (6).

62 (1) If--

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