Civil Partnership Act 2004 (c. 33)

(The document as of February, 2008)

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(b) a direction given under sub-paragraph (4),

a magistrates' court may, on an application made by either civil partner, make an order declaring that the order ceased to have effect from such date as the court may specify.

Part 6 Variation etc. of orders

Power to vary, revoke, suspend or revive order

30 (1) If a magistrates' court has made an order for the making of periodical payments under Part 1, 2 or 3, the court may, on an application made under this Part--

(a) vary or revoke the order,

(b) suspend any provision of it temporarily, or

(2) If a magistrates' court has made an interim order under Part 4, the court may, on an application made under this Part--

(a) vary or revoke the order,

(b) suspend any provision of it temporarily, or

except that it may not by virtue of this sub-paragraph extend the period for which the order is in force.

Powers to order lump sum on variation

31 (1) If a magistrates' court has made an order under paragraph 2(1)(a) or (c) for the making of periodical payments, the court may, on an application made under this Part, make an order for the payment of a lump sum under paragraph 2(1)(b) or (d).

(2) If a magistrates' court has made an order under Part 2 for the making of periodical payments by a civil partner the court may, on an application made under this Part, make an order for the payment of a lump sum by that civil partner--

(a) to the other civil partner, or

(b) to a child of the family or to that other civil partner for the benefit of that child.

(3) Where the court has power by virtue of this paragraph to make an order for the payment of a lump sum--

(a) the amount of the lump sum must not exceed the maximum amount that may at that time be required to be paid under Part 1, but

(b) the court may make an order for the payment of a lump sum not exceeding that amount even if the person required to pay it was required to pay a lump sum by a previous order under this Schedule.

(4) Where--

(a) the court has power by virtue of this paragraph to make an order for the payment of a lump sum, and

(b) the respondent or the applicant (as the case may be) has agreed to pay a lump sum of an amount exceeding the maximum amount that may at that time be required to be paid under Part 1,

the court may, regardless of sub-paragraph (3), make an order for the payment of a lump sum of that amount.

Power to specify when order as varied is to take effect

32 An order made under this Part which varies an order for the making of periodical payments may provide that the payments as so varied are to be made from such date as the court may specify, except that, subject to paragraph 33, the date must not be earlier than the date of the making of the application under this Part.

33 (1) If--

(a) there is in force an order ("the order")--

(i) under paragraph 2(1)(c),

(ii) under Part 2 making provision of a kind set out in paragraph 10(1)(c) (regardless of whether it makes provision of any other kind mentioned in paragraph 10(1)(c)),

(iii) under paragraph 16(1)(b), or

(iv) which is an interim order under Part 4 under which the payments are to be made to a child or to the applicant for the benefit of a child,

(b) the order requires payments specified in it to be made to or for the benefit of more than one child without apportioning those payments between them,

(c) a maintenance calculation ("the calculation") is made with respect to one or more, but not all, of the children with respect to whom those payments are to be made, and

(d) an application is made, before the end of 6 months beginning with the date on which the calculation was made, for the variation or revocation of the order,

the court may, in exercise of its powers under this Part to vary or revoke the order, direct that the variation or revocation is to take effect from the date on which the calculation took effect or any later date.

(2) If--

(a) an order ("the child order") of a kind prescribed for the purposes of section 10(1) of the Child Support Act 1991 is affected by a maintenance calculation,

(b) on the date on which the child order became so affected there was in force an order ("the civil partner's order")--

(i) under paragraph 2(1)(a),

(ii) under Part 2 making provision of a kind set out in paragraph 10(1)(a) (regardless of whether it makes provision of any other kind mentioned in paragraph 10(1)(a)),

(iii) under paragraph 16(1)(a), or

(iv) which is an interim order under Part 4 under which the payments are to be made to the applicant (otherwise than for the benefit of a child), and

(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 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 section 10 of the 1991 Act.

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 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) if the court decides not to give effect to the agreement,

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 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 made by virtue of paragraph 46, to which the court would have been required to have regard if that order had been made under Part 1.

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 section 59(3)(a) to (d) of the Magistrates' Courts Act 1980 (c. 43).

(2) Sub-paragraph (1) is subject to paragraph 37.

36 (1) If--

(a) a magistrates' court has made an order under this Schedule for the making of periodical payments, and

(b) payments under the order are required to be made by any method of payment falling within section 59(6) of the 1980 Act (standing order, etc.),

an application may be made under this sub-paragraph to the court for the order to be varied as mentioned in sub-paragraph (2).

(2) Subject to sub-paragraph (4), if an application is made under sub-paragraph (1), a justices' clerk, after--

(a) giving written notice (by post or otherwise) of the application to the respondent, and

(b) allowing the respondent, within the period of 14 days beginning with the date of the giving of that notice, an opportunity to make written representations,

may vary the order to provide that payments under the order are to be made to the designated officer for the court.

(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 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 section 59(3)(a) to (d) of the 1980 Act.

37 (1) Before varying the order by exercising one of its powers under section 59(3)(a) to (d) of the 1980 Act, 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 section 59(3)(c), (cc) or (d) of the 1980 Act, the court must, unless upon representations expressly made in that behalf by the person to whom payments under the order are required to be made it is satisfied that it is undesirable to do so, exercise its power under section 59(3)(b).

38 (1) Section 59(4) of the 1980 Act (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 section 59.

(2) None of the powers of the court, or of a justices' clerk, 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 section 59 of the 1980 Act).

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 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 a magistrates' court under this Schedule for the making of periodical payments to or in respect of a child (other than an interim order) 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 which made the order for an order for its revival.

(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

(b) there are special circumstances which justify the making of an order under this sub-paragraph,

the court may by order 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.

Variation of instalments of lump sum

41 If in the exercise of its powers under section 75 of the 1980 Act a magistrates' 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 varying--

(a) the number of instalments payable,

(b) the amount of any instalment payable, and

Supplementary provisions with respect to variation and revocation of orders

42 None of the following powers apply in relation to an order made under this Schedule--

(a) the powers of a magistrates' court to revoke, revive or vary an order for the periodical payment of money and the power of a justices' clerk to vary such an order under section 60 of the 1980 Act;

(b) the power of a magistrates' court to suspend or rescind certain other orders under section 63(2) of the 1980 Act.

Part 7 Arrears and repayments

Enforcement etc. of orders for payment of money

43 Section 32 of the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22) applies in relation to orders under this Schedule as it applies in relation to orders under Part 1 of that Act.

Orders for repayment after cessation of order because of subsequent civil partnership etc.

44 (1) Sub-paragraphs (3) and (4) apply if--

(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 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 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).

(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 pay to the applicant a sum equal to the amount of the payments made in respect of the relevant period, or

(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.

(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 or a county court for leave to enforce, or 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 the High Court or a county court, 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-paragraph be exercisable by a county court.

(8) Subject to sub-paragraph (9)--

(a) the designated officer for a magistrates' court to whom any payments under an order made under paragraph 2(1)(a), or Part 2 or 3, are required to be made is not liable for any act done by him in pursuance of the order after the date on which that order 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) the collecting officer under an attachment of earnings order made to secure payments under the order under paragraph 2(1)(a), or Part 2 or 3, is not liable for any act done by him after that date in accordance with any enactment or rule of court specifying how payments made to him in compliance with the attachment of earnings order are to be dealt with.

(9) Sub-paragraph (8) applies if (but only if) the act--

(a) was one which he would have been under a duty to do had the order under paragraph 2(1)(a) or Part 2 or 3 not ceased to have effect, and

(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.

(10) In this paragraph "collecting officer", in relation to an attachment of earnings order, means--

(a) the officer of the High Court, or

(b) the officer designated by the Lord Chancellor,

to whom a person makes payments in compliance with the order.

Part 8 Supplementary

Restrictions on making of orders under this Schedule: welfare of children

45 If--

(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 Act 1989 (c. 41) with respect to the child.

Constitution of courts, powers of High Court and county court in relation to orders and appeals

46 The following provisions of the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22) apply in relation to an order under this Schedule relating to a civil partnership as they apply in relation to an order under Part 1 of that Act relating to a marriage--

(a) section 28 (powers of the High Court and a county court in relation to certain orders),

(b) section 29 (appeals), and

Provisions as to jurisdiction and procedure

47 (1) Subject to section 2 of the Family Law Act 1986 (c. 55) and section 70 of the Magistrates' Courts Act 1980 (c. 43) and any determination of the Lord Chancellor, a magistrates' court has jurisdiction to hear an application for an order under this Schedule if it acts in, or is authorised by the Lord Chancellor to act for, a local justice area in which either the applicant or the respondent ordinarily resides at the date of the making of the application.

(2) Any jurisdiction conferred on a magistrates' court by this Schedule is exercisable even if any party to the proceedings is not domiciled in England and Wales.

Meaning of "child of the family"

48 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

(b) any other child, other than a child placed with them as foster parents by a local authority or voluntary organisation, who has been treated by both the civil partners as a child of their family.

Section 72(4)

SCHEDULE 7 Financial relief in England and Wales after overseas dissolution etc. of a civil partnership

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 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 England and Wales.

(2) This Part of this Schedule applies even if the date of the dissolution, 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 British Islands.

(4) In this Part of this Schedule "child of the family" means--

(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 a local authority or voluntary organisation, who has been treated by both the civil partners as a child of their family.

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.

(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).

(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--

(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.

(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 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 order has been made by a court in a country outside England and Wales 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.

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,

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

(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

(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 this paragraph.

(5) An interim order under this paragraph may be made subject to such conditions as the court thinks fit.

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 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--

(a) was domiciled in England and Wales on the date when the leave was applied for, or

(b) was domiciled in England and Wales on the date when the dissolution, annulment or legal separation took effect in the overseas country in which it was obtained.

(3) The second is that either of the civil partners--

(a) was habitually resident in England and Wales throughout the period of one year ending with the date when the leave was applied for, or

(b) was habitually resident in England and Wales throughout the period of one year ending with the date on which the dissolution, annulment 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 England or Wales which was at some time during the civil 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 England and Wales is appropriate venue for application

8 (1) Before deciding the application, the court must consider whether in all the circumstances of the case it would be appropriate for an order of the kind applied for to be made by a court in England and Wales.

(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--

(a) the connection which the civil partners have with England and Wales;

(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;

(d) any financial benefit which, in consequence of the dissolution, annulment or legal separation--

(i) the applicant, or

(ii) a child of the family,

has received, or is likely to receive, by virtue of any agreement or the operation of the law of a country outside England and Wales;

(e) in a case where an order has been made by a court in a country outside England and Wales requiring the other civil partner--

(i) to make any payment, or

(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 relief from the other civil partner under the law of any country outside England and Wales and, if the applicant has omitted to exercise that right, the reason for that omission;

(g) the availability in England and Wales of any property in respect of which an order under this Schedule in favour of the applicant could 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.

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 Part 1, 2 or 4 of Schedule 5 (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 2 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 Part 1 or 2 of Schedule 5 (financial provision and property adjustment) if a separation order had been made in respect of the civil partners under Chapter 2 of Part 2 of this Act.

(4) Where under sub-paragraph (2) or (3) the court makes--

(a) an order which, if made under Schedule 5, would be a secured periodical payments order,

(b) an order for the payment of a lump sum, or

then, on making that order or at any time afterwards, the court may make any order which it could make under Part 3 of Schedule 5 (sale of property) if the order under sub-paragraph (2) or (3) had been made under that Schedule.

(5) The powers under sub-paragraphs (2) to (4) are subject to paragraph 11.

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

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 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 paragraph 21(2) of Schedule 5, and

(b) shall be under duties corresponding to those imposed by sub-paragraphs (2) and (3) of paragraph 23 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.

(4) The matters to which the court is to have regard under sub-paragraph (3)(a), so far as relating to paragraph 21(2)(a) of Schedule 5 (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

(b) any PPF compensation to which a civil partner is or is likely to be entitled,

(whether or not in the foreseeable future).

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