Civil Partnership Act 2004 (c. 33)

(The document as of February, 2008)

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57 (1) This paragraph applies if--

(a) a person ("R") is entitled to receive payments under an order listed in sub-paragraph (4), and

(b) R's circumstances or the circumstances of the person ("P") liable to make payments under the order have changed since the order was made, or the circumstances have changed as a result of P's death.

(2) The orders are--

(a) any order under Part 7 (maintenance pending outcome of dissolution, nullity or separation proceedings);

(b) any interim order under Part 8;

(d) any secured periodical payments order.

(3) P or P's personal representatives may (subject to sub-paragraph (7)) apply for an order under this paragraph against R or R's personal representatives.

(4) If it appears to the court that, because of the changed circumstances or P's death, the amount received by R in respect of a relevant period exceeds the amount which P or P's personal representatives should have been required to pay, it may order the respondent to the application to pay to the applicant such sum, not exceeding the amount of the excess, as it thinks just.

(5) "Relevant period" means a period after the circumstances changed or (as the case may be) after P's death.

(6) An order under this paragraph for the payment of any sum may provide for the payment of that sum by instalments of an amount specified in the order.

(7) An application under this paragraph--

(a) may be made in proceedings in the High Court for--

(i) the variation or discharge of the order listed in sub-paragraph (2), or

(ii) leave to enforce, or the enforcement of, the payment of arrears under that order, 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 (whether a civil partnership proceedings county court or not), as the circumstances require.

(8) The jurisdiction conferred on a county court by this paragraph is exercisable even though, because of the amount claimed in the application, the jurisdiction would not but for this sub-paragraph be exercisable by a county court.

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

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

(a) a periodical payments or secured periodical payments order in favour of a civil partner ("R") has ceased to have effect because of the formation of a subsequent civil partnership or marriage by R, and

(b) the person liable to make payments under the order ("P") (or P's personal representatives) has 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 civil partnership or marriage.

(3) P (or P's personal representatives) is not entitled to bring proceedings in respect of a cause of action arising out of the circumstances mentioned in sub-paragraph (1)(a) and (b) against R (or R's personal representatives).

(4) But, on an application 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 for leave to enforce, or the enforcement of, payment of arrears under the order in question, but

(b) if not made in such proceedings, must be made to a county court;

(7) The jurisdiction conferred on a county court by this paragraph is exercisable even though, because of the amount claimed in the application, the jurisdiction would not but for this sub-paragraph be exercisable by a county court.

(8) Subject to sub-paragraph (9), the collecting officer of a court of summary jurisdiction to whom any payments under a payments order, or under an attachment of earnings order made to secure payments under a payments order, are required to be made is not liable--

(a) for any act done by him in pursuance of the payments order after the date on which that order ceased to have effect because of the formation of a subsequent civil partnership or marriage by R, or

(b) for any act done by him after that date in accordance with any statutory provision 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 (and only if) the act--

(a) was one which the officer would have been under a duty to do had the payments order not ceased to have effect, and

(b) was done before notice in writing of the formation of the civil partnership or marriage, was given to him by or on behalf of R, P, or R or P's personal representatives.

(10) In this paragraph--

"collecting officer" means the officer mentioned in section 15(2) of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966 (c. 35) or Article 85(2) of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26));
"statutory provision" has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (1954 c. 33 (N.I.)).

Part 12 Consent orders and maintenance agreements

Consent orders for financial relief

59 (1) Regardless of anything in the preceding provisions of this Schedule, on an application for a consent order for financial relief, the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of such information supplied with the application as is required by rules of court.

(2) Sub-paragraph (1) applies to an application for a consent order varying or discharging an order for financial relief as it applies to an application for an order for financial relief.

(3) In this paragraph--

"consent order", in relation to an application for an order, means an order in the terms applied for to which the respondent agrees;
"order for financial relief" means an order under any of Parts 1, 2, 3 and 8.

Meaning of "maintenance agreement" and "financial arrangements"

60 (1) In this Part "maintenance agreement" means any written agreement between the civil partners in a civil partnership which--

(a) is made during the continuance or after the dissolution or annulment of the civil partnership and contains financial arrangements, or

(b) is a separation agreement which contains no financial arrangements but is made in a case where no other agreement in writing between the civil partners contains financial arrangements.

(2) In this Part "financial arrangements" means provisions governing the rights and liabilities towards one another when living separately of the civil partners in a civil partnership (including a civil partnership which has been dissolved or annulled) in respect of--

(a) the making or securing of payments, or

(b) the disposition or use of any property,

including such rights and liabilities with respect to the maintenance or education of a child (whether or not a child of the family).

(3) "Education" includes training.

Validity of maintenance agreements

61 If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements--

(a) that provision is void, but

(b) any other financial arrangements contained in the agreement--

(i) are not void or unenforceable as a result, and

(ii) unless void or unenforceable for any other reason, are (subject to paragraphs 62 and 66) binding on the parties to the agreement.

Alteration of agreements by court during lives of parties

62 (1) Either party to a maintenance agreement may apply to the court or, subject to sub-paragraph (6), to a court of summary jurisdiction for an order under this paragraph if--

(a) the maintenance agreement is for the time being subsisting, and

(b) each of the parties to the agreement is for the time being domiciled or resident in Northern Ireland.

(2) The court may make an order under this paragraph if it is satisfied that--

(a) because of a change in the circumstances in the light of which--

(i) any financial arrangements contained in the agreement were made, or

(ii) financial arrangements were omitted from it,

the agreement should be altered so as to make different financial arrangements or so as to contain financial arrangements, or

(b) that the agreement does not contain proper financial arrangements with respect to any child of the family.

(3) In sub-paragraph (2)(a) the reference to a change in the circumstances includes a change foreseen by the parties when making the agreement.

(4) An order under this paragraph may make such alterations in the agreement--

(a) by varying or revoking any financial arrangements contained in it, or

(b) by inserting in it financial arrangements for the benefit of one of the parties to the agreement or of a child of the family,

as appear to the court to be just having regard to all the circumstances, including, if relevant, the matters mentioned in paragraph 17(3).

(5) The effect of the order is that the agreement is to be treated as if any alteration made by the order had been made by agreement between the partners and for valuable consideration.

(6) The power to make an order under this paragraph is subject to paragraphs 63 and 64.

Restrictions on applications to and orders by courts of summary jurisdiction under paragraph 62

63 (1) A court of summary jurisdiction must not entertain an application under paragraph 62(1) unless--

(a) both the parties to the agreement are resident in Northern Ireland, and

(b) the court acts for a petty sessions district included in the county court division in which at least one of the parties is resident.

(2) A court of summary jurisdiction must not make any order on such an application other than--

(a) if the agreement includes no provision for periodical payments by either of the parties, an order inserting provision for the making by one of the parties of periodical payments for the maintenance of--

(i) the other party, or

(ii) any child of the family;

(b) if the agreement includes provision for the making by one of the parties of periodical payments, an order increasing or reducing the rate of, or terminating, any of those payments.

Provisions relating to periodical and secured periodical payments: duration

64 (1) If a court decides to make an order under paragraph 62 altering an agreement--

(a) by inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of the other party, or

(b) by increasing the rate of the periodical payments which the agreement provides shall be made by one of the parties for the maintenance of the other,

it may specify such term as it thinks fit as the term for which the payments or, as the case may be, the additional payments attributable to the increase are to be made under the altered agreement, except that the term must not extend beyond the limits in sub-paragraphs (2) and (3).

(2) The limits if the payments are not to be secured are--

(a) the death of either of the parties to the agreement, or

(b) the formation of a subsequent civil partnership or marriage by the party to whom the payments are to be made.

(3) The limits if the payments are to be secured are--

(a) the death of the party to whom the payments are to be made, or

(b) the formation of a subsequent civil partnership or marriage by that party.

(4) Sub-paragraph (5) applies if a court decides to make an order under paragraph 62 altering an agreement by--

(a) inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of a child of the family, or

(b) increasing the rate of the periodical payments which the agreement provides shall be made or secured by one of the parties for the maintenance of such a child.

(5) The court, in deciding the term for which under the agreement as altered by the order the payments, or the additional payments attributable to the increase, are to be made or secured for the benefit of the child, must apply paragraph 44(2) to (5) (age limits) as if the order in question were a periodical payments or secured periodical payments order in favour of the child.

Saving

65 Nothing in paragraphs 61 or 64 affects--

(a) any power of a court before which any proceedings between the parties to a maintenance agreement are brought under any other enactment (including a provision of this Schedule) to make an order containing financial arrangements, or

(b) any right of either party to apply for such an order in such proceedings.

Alteration of agreements by court after death of one party

66 (1) This paragraph applies if--

(a) a maintenance agreement provides for the continuation of payments under the agreement after the death of one of the parties, and

(b) that party ("A") dies domiciled in Northern Ireland.

(2) Subject to sub-paragraphs (4) and (5), the surviving party or A's personal representatives may apply to the High Court or a county court for an order under paragraph 62 and accordingly, for the purposes of this paragraph, any reference in that paragraph to the court includes a reference to a county court (whether a civil partnership proceedings county court or not).

(3) If a maintenance agreement is altered by a court on an application made under sub-paragraph (2), the same consequences follow as if the alteration had been made immediately before the death by agreement between the parties and for valuable consideration.

(4) An application under this paragraph may not, without the leave of the High Court or a county court, be made after the end of 6 months from the date on which representation in regard to A's estate is first taken out.

(5) A county court has jurisdiction under this paragraph only if it is shown to the satisfaction of the court that, at the relevant date, the property included in A's net estate did not exceed £15,000 in value.

(6) A's personal representatives are not liable for having distributed any part of A's estate after the end of the 6 month period on the ground that they ought to have taken into account the possibility that a court might allow an application by virtue of this paragraph to be made by the surviving party after that period.

(7) Sub-paragraph (6) 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.

(8) Paragraph 53(6) applies for the purposes of sub-paragraph (4) as it applies for the purposes of paragraph 53(3).

(9) In sub-paragraph (5)--

"the property included in A's net estate" means all property of which A had power to dispose by will, otherwise than by virtue of a special power of appointment, less the amount of A's funeral, testamentary and administration expenses, debts and liabilities, including any inheritance tax payable out of A's estate on A's death;
"relevant date" means the date of A's death.

Part 13 Miscellaneous and supplementary

Avoidance of transactions intended to prevent or reduce financial relief

67 (1) This paragraph applies if proceedings for relief ("financial relief") are brought by one person ("A") against another ("B") under Part 1, 2, 3, 7, 8 or 9 (other than paragraph 53(2)), or paragraph 62.

(2) If the court is satisfied, on an application by A, that B is, with the intention of defeating A's claim for financial relief, 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.

(3) If the court is satisfied, on an application by A, that--

(a) B has, with the intention of defeating A's claim for financial relief, made a reviewable disposition, and

(b) if the disposition were set aside, financial relief or different financial relief would be granted to A,

it may make an order setting aside the disposition.

(4) If the court is satisfied, on an application by A in a case where an order has been obtained by A against B under any of the provisions mentioned in sub-paragraph (1), that B has, with the intention of defeating A's claim for financial relief, made a reviewable disposition, it may make an order setting aside the disposition.

(5) An application for the purposes of sub-paragraph (3) must be made in the proceedings for the financial relief in question.

(6) If the court makes an order under sub-paragraph (3) or (4) setting aside a disposition it must give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the making of any payments or the disposal of any property).

68 (1) Any reference in paragraph 67 to defeating A's claim for financial relief is to--

(a) preventing financial relief from being granted to A, or to A for the benefit of a child of the family,

(b) reducing the amount of any financial relief which might be so granted, or

(c) frustrating or impeding the enforcement of any order which might be or has been made at A's instance under any of the provisions mentioned in paragraph 67(1).

(2) In paragraph 67 and this paragraph "disposition"--

(a) does not include any provision contained in a will or codicil, but

(b) subject to paragraph (a), includes any conveyance, assurance or gift of property of any description (whether made by an instrument or otherwise).

(3) Any disposition made by B (whether before or after the commencement of the proceedings for financial relief) is a reviewable disposition for the purposes of paragraph 67(3) and (4) unless it was made--

(a) for valuable consideration (other than formation of a civil partnership), and

(b) 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 B's part to defeat A's claim for financial relief.

(4) If an application is made under paragraph 67 with respect to a disposition which took place less than 3 years before the date of the application or with respect to a disposition or other dealing with property which is about to take place and the court is satisfied--

(a) in a case falling within paragraph 67(2) or (3), that the disposition or other dealing would (apart from paragraph 67) have the consequence of defeating A's claim for financial relief, or

(b) in a case falling within paragraph 67(4), that the disposition has had the consequence of defeating A's claim for financial relief,

it is presumed, unless the contrary is shown, that the person who disposed of or is about to dispose of or deal with the property did so or, as the case may be, is about to do so, with the intention of defeating A's claim for financial relief.

69 (1) An order under paragraph 67(2), to the extent that it restrains B from making a disposition of any land in Northern Ireland which is specified in the order--

(a) creates on the land a statutory charge, and

(b) subject to section 88 of the 1970 Act (statutory charge to be void against purchaser in certain circumstances), renders liable to be set aside by the court at the instance of A any disposition of the land in contravention of the order.

(2) In this paragraph and paragraph 70--

"disposition" has the same meaning as in paragraphs 67 and 68;
"1970 Act" means the Land Registration Act (Northern Ireland) 1970 (c. 18 (N.I.));
"statutory charge" has the same meaning as in the 1970 Act.

(3) Nothing in sub-paragraph (1)(b) or section 88(1) of the 1970 Act affects any power of the court to set aside a disposition under paragraph 67(3) or (4).

70 (1) The registration of a statutory charge created under paragraph 69(1)(a) shall be effective until--

(a) the expiration of 1 year from the date of its registration or of the last renewal of its registration, unless the registration is renewed or further renewed before the expiration of that period, or

(b) the court orders that it is to cease to have effect.

(2) When the registration ceases to have effect the Registrar of Titles may cancel it.

(3) Nothing in this paragraph affects any provision of section 91 of the 1970 Act (cancellation and modification of statutory charges).

(4) An application for the renewal, under sub-paragraph (1)(a), of the registration of a charge may be made in the same manner as the application for the original registration.

Direction for settlement of instrument for securing payments or effecting property adjustment

71 (1) This paragraph applies if the court decides to make--

(a) an order under Parts 1 or 8 requiring any payments to be secured, or

(b) a property adjustment order,

or if it gives directions for the disposal of any property.

(2) The court may direct that the matter be referred to a conveyancing counsel appointed by the court for him to settle a proper instrument to be executed by all necessary parties.

(3) If the order referred to in sub-paragraph (1) is to be made in proceedings for a dissolution, nullity or separation order, the court may, if it thinks fit, defer the making of the dissolution, nullity or separation order until the instrument has been duly executed.

Settlement, etc., made in compliance with a property adjustment order may be avoided on bankruptcy of settlor

72 The fact that--

(a) a settlement, or

(b) a transfer of property,

had to be made in order to comply with a property adjustment order does not prevent the settlement or transfer from being a transaction in respect of which an order may be made under Article 312 or 313 of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) (transfers at an undervalue and preferences).

Payments, etc., under order made in favour of person suffering from mental disorder

73 (1) This paragraph applies if--

(a) the court makes an order under this Schedule requiring--

(i) payments (including a lump sum payment) to be made, or

(ii) property to be transferred,

to a civil partner, and

(b) the court is satisfied that the person in whose favour the order is made is incapable, because of mental disorder, of managing and administering his or her property and affairs.

(2) "Mental disorder" has the same meaning as in the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)).

(3) Subject to any order, direction or authority made or given in relation to that person under Part 8 of the 1986 Order, the court may order the payments to be made, or as the case may be, the property to be transferred, to such persons having charge of that person as the court may direct.

Appeals relating to pension sharing orders which have taken effect

74 (1) Sub-paragraphs (2) and (3) apply if an appeal against a pension sharing order is begun on or after the day on which the order takes effect.

(2) If the pension sharing order relates to a person's rights under a pension arrangement, the appeal court may not set aside or vary the order if the person responsible for the pension arrangement has acted to his detriment in reliance on the order taking effect.

(3) If the pension sharing order relates to a person's shareable state scheme rights, the appeal court may not set aside or vary the order if the Department for Social Development has acted to its detriment in reliance on the taking effect of the order.

(4) In determining for the purposes of sub-paragraph (2) or (3) whether a person or the Department has acted to his or its detriment in reliance on the taking effect of the order, the appeal court may disregard any detriment which in its opinion is insignificant.

(5) Where sub-paragraph (2) or (3) applies, the appeal court may make such further orders (including one or more pension sharing orders) as it thinks fit for the purpose of putting the parties in the position it considers appropriate.

(6) Paragraph 14 only applies to a pension sharing order under this paragraph if the decision of the appeal court can itself be the subject of an appeal.

(7) In sub-paragraph (2), the reference to the person responsible for the pension arrangement is to be read in accordance with paragraph 24(3).

Interpretation

75 (1) References in this Schedule to--

(a) periodical payments orders,

(b) secured periodical payments orders, and

are references to such of the orders that may be made under Parts 1 and 8 (other than interim orders) as are relevant in the context of the reference in question.

(2) In this Schedule "child of the family", in relation to two people who are the civil partners of each other, means--

(a) a child of both of them, and

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

(3) In sub-paragraph (2) "authority" and "voluntary organisation" have the same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/ 755 (N.I. 2)).

(4) In this Schedule "the court" has the meaning given by section 188.

(5) References in this Schedule to a subsequent civil partnership include a civil partnership which is by law void or voidable.

(6) References in this Schedule to a subsequent marriage include a marriage which is by law void or voidable.

Section 196(3)

SCHEDULE 16 Financial relief in court of summary jurisdiction etc.: Northern Ireland

Part 1 Failure to maintain etc.: financial provision

Circumstances in which orders under this Part may be made

1 (1) On an application to it by one of the civil partners, the court may make any one or more of the orders set out in paragraph 2 if it is satisfied that the other civil partner--

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

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

(d) has deserted the applicant.

(2) The power of the court under sub-paragraph (1) is subject to the following provisions of this Schedule.

The orders: periodical and secured periodical payments and lump sums

2 (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 pay to the applicant such lump sum as may be specified;

(i) to the applicant for the benefit of a child of the family to whom the application relates, or

(ii) to a child of the family to whom the application relates, such periodical payments for such term as may be specified;

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

(i) to the applicant for the benefit of a child of the family to whom the application relates, or

(ii) to a child of the family to whom the application relates.

(2) The amount of a lump sum specified under sub-paragraph (1)(b) or (d) must not exceed--

(a) £1,000, or

(b) such larger amount as the Lord Chancellor may from time to time by order fix for the purposes of this sub-paragraph.

(3) The power to make an order under sub-paragraph (2) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(4) An order under sub-paragraph (2) is 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.

(5) "Specified" means specified in the order.

Particular provision that may be made by lump sum orders

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

(2) Sub-paragraph (1) does not restrict the power to make the orders set out in paragraph 2(1)(b) and (d).

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

4 If an application is made for an order under this Part, the court, in deciding--

(a) whether to exercise its powers under this Part, and

(b) if so, in what way,

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.

Particular matters to be taken into account when exercising powers in relation to civil partners

5 (1) This paragraph applies in relation to the exercise by the court of its power to make an order by virtue of paragraph 2(1)(a) or (b).

(2) The court must in particular have regard to--

(a) the income, earning capacity, property and other financial resources which each civil partner--

(i) has, or

(ii) is likely to have in the foreseeable future,

including, in the case of earning capacity, any increase in that capacity which it would in the opinion of the court be reasonable to expect the civil partner to take steps to acquire;

(b) the financial needs, obligations and responsibilities which each civil partner has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the civil partners before the occurrence of the conduct which is alleged as the ground of the application;

(d) the age of each civil partner and the duration of the civil partnership;

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