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 7 Maintenance pending outcome of dissolution, nullity or separation proceedings

33 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 8 Failure to maintain: financial provision (and interim orders)

Circumstances in which orders under this Part may be made

34 (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 Northern Ireland 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 36.

Interim orders

35 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

36 (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

37 (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 36(1)(c) or (f).

Matters to which the court is to have regard on application under paragraph 34(1)(a)

38 (1) This paragraph applies if an application under paragraph 34 is made on the ground mentioned in paragraph 34(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 16(2).

(3) If an application is also made under paragraph 34 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 16(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 34(1)(b)

39 (1) This paragraph applies if an application under paragraph 34 is made on the ground mentioned in paragraph 34(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 17(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 17(3).

(4) Paragraph 16(2)(c) (as it applies by virtue of paragraph 17(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

40 The power to make an order under paragraph 36(1)(d), (e) or (f) is subject to paragraph 44(1) and (5) (restrictions on orders in favour of children who have reached 18).

Part 9 Commencement of certain proceedings and duration of certain orders

Commencement of proceedings for ancillary relief, etc.

41 (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 defence, 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 defence 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

42 (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 18(3) and 52(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 46 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

43 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

44 (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) In sub-paragraph (3)(a) "compulsory school age" has the meaning given in Article 46 of the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3)).

(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 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 Child Support (Northern Ireland) Order 1991 (S.I. 1991/2628 (N.I. 23)), 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 Schedule "maintenance calculation" has the same meaning as it has in the 1991 Order.

Part 10 Variation, discharge etc. of certain orders for financial relief

Orders etc. to which this Part applies

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

(a) a periodical payments order under Part 1 (financial provision on dissolution etc.) or Part 8 (failure to maintain);

(b) a secured periodical payments order under Part 1 or 8;

(d) an interim order under Part 8;

(e) an order made under Part 1 by virtue of paragraph 3(3) or under Part 8 by virtue of paragraph 37(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 20(2), or

(ii) paragraph 21,

(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 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

46 (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 42(5).

Power to remit arrears

47 (1) If the court has made an order referred to in paragraph 45(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.

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

48 (1) An application for the variation under paragraph 46 of a periodical payments order or secured periodical payments order made under Part 8 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 8 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 a date specified by it.

(4) The 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 46 in relation to the revived order.

Variation etc. of property adjustment and pension sharing orders

49 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.

50 (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 45(1)(h)) 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 rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(5) Regulations under sub-paragraph (3) 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.

51 (1) 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.

(2) 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 8).

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

52 (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) 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

53 (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 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 grant limited to part of the 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

54 (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.

(2) Sub-paragraph (1) is subject to paragraph 42(1) and (6).

55 (1) If--

(a) a periodical payments or secured periodical payments order in favour of more than one child ("the order") is in force,

(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 the period of 6 months beginning with the date on which the calculation was made, for the variation or discharge of the order,

the court may, in exercise of its powers under this Part to vary or discharge the order, direct that the variation or discharge 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 Article 12(1) of the Child Support (Northern Ireland) Order 1991 (S.I. 1991/2628 (N.I. 23)) is affected by a maintenance calculation,

(b) on the date on which the child order became so affected there was in force a periodical payments or secured periodical payments order ("the civil partner's order") in favour of a civil partner having the care of the child in whose favour the child order was made, and

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

the court may, in exercise of its powers under this Part to vary or discharge the civil partner's order, direct that the variation or discharge 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 Article 12 of the 1991 Order.

(4) Sub-paragraphs (1) and (2) do not affect any other power of the court to direct that the variation or discharge of an order under this Part is to take effect from a date earlier than that on which the order for variation or discharge was made.

Part 11 Arrears and repayments

Payment of certain arrears unenforceable without the leave of the court

56 (1) This paragraph applies if any arrears are due under--

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

(b) an order under Part 7 (maintenance pending outcome of dissolution, nullity or separation proceedings), or

and the arrears became due more than 12 months before proceedings to enforce the payment of them are begun.

(2) A person is not entitled to enforce through the court the payment of the arrears without the leave of that court.

(3) The court hearing an application for the grant of leave under this paragraph may--

(a) refuse leave,

(b) grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment or the making of payment by instalments) as that court thinks proper, or

Orders for repayment in certain cases of sums paid under certain orders

57 (1) This paragraph applies if--

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