Legalize / United Kingdom / Public General Act

Civil Partnership Act 2004

Type Public General Act

Publication 2004-11-18

Last updated 2025-12-01

State In force

Department Statute Law Database

Source legislation.gov.uk

articles 13

Reform history JSON API

(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.

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 or pension compensation 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 or pension compensation 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 or pension compensation sharing order from taking effect before the application has been dealt with.

(2) No variation of a pension sharing order or pension compensation 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 or pension compensation 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 negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954.

51

(1) No property adjustment order , pension sharing order or pension compensation 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—

(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.)).

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.

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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, ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

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.

SCHEDULE 16

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 , after consultation with the Lord Chief Justice of Northern Ireland, 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 negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954.

(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;

(e) any physical or mental disability of either civil partner;

(f) the contributions which each civil partner has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each civil partner, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.

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

6

(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)(c) or (d).

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

(a) the financial needs of the child;

(b) the income, earning capacity (if any), property and other financial resources of the child;

(d) the standard of living enjoyed by the family before the occurrence of the conduct which is alleged as the ground of the application;

(e) the way in which the child was being and in which the civil partners expected the child to be educated or trained;

(f) the considerations mentioned in relation to the civil partners in paragraph 5(2)(a) and (b).

(3) In relation to the exercise of its power to make an order in favour of a child of the family who is not the respondent’s child, the court must also have regard to—

(a) whether the respondent has assumed any responsibility for the child’s maintenance,

(b) if so, the extent to which, and the basis on which, the respondent assumed that responsibility and the length of time during which the respondent discharged that responsibility;

(c) whether in assuming and discharging that responsibility the respondent did so knowing that the child was not the respondent’s child;

(d) the liability of any other person to maintain the child.

Reconciliation

7

(1) If before the hearing of any evidence in proceedings on an application for an order under this Part a statement is made to the court by or on behalf of the civil partners showing a possibility of reconciliation between them, the court must adjourn the proceedings for such period as it thinks fit.

(2) If at any stage of the proceedings on an application for an order under this Part it appears to the court that there is a reasonable possibility of a reconciliation between the civil partners, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect a reconciliation.

(3) If the court adjourns any proceedings under sub-paragraph (1) or (2), it may request that—

(a) a suitably qualified person acting under arrangements made by the Department of Health, Social Services and Public Safety, or

(b) any other person, willing and able to do so and acceptable to both parties, whom the court may appoint,

should attempt to effect a reconciliation between the civil partners.

(4) If any such request is made, the person—

(a) must report in writing to the court whether the attempt has been successful, but

(b) must not include in the report any other information.

(5) The powers conferred by this paragraph are additional to any other power of the court to adjourn proceedings.

Refusal of order in case more suitable for High Court

8

(1) If on hearing an application for an order under this Part a court of summary jurisdiction is of the opinion that any of the matters in question between the civil partners would be more suitably dealt with by the High Court, the court of summary jurisdiction must refuse to make any order on the application.

(2) No appeal lies from a refusal under sub-paragraph (1).

(3) But, in any proceedings in the High Court relating to or comprising the same subject matter as an application in respect of which a court of summary jurisdiction has refused to make any order, the High Court may order the application to be reheard and determined by a court of summary jurisdiction ....

Part 2 — Orders for agreed financial provision

Orders for payments which have been agreed by the parties

9

(1) Either civil partner may apply to the court for an order under this Part on the ground that that civil partner or the other civil partner has agreed to make such financial provision as may be specified in the application.

(2) On such an application or on a request under paragraph 14, the court may order that the applicant or the respondent (as the case may be) is to make the financial provision specified in the application or request, if—

(a) it is satisfied that the applicant or the respondent (as the case may be) has agreed in writing to make that provision, and

(b) it has no reason to think that it would be contrary to the interests of justice to do so.

(3) Sub-paragraph (2) is subject to paragraph 12.

(4) The making of an order under this Part (“Part 2 order”) does not prevent the making of an order under Part 1 (“Part 1 order”) on a subsequent application for a Part 1 order.

(5) On the making of a Part 2 order, the Part 1 order ceases to have effect.

(6) Sub-paragraph (5) does not affect the power of the court under Part 6 to revoke the Part 1 order.

Meaning of “financial provision” and of references to specified financial provision

10

(1) In this Part “financial provision” means any one or more of the following—

(a) the making of periodical payments by one civil partner to the other;

(b) the payment of a lump sum by one civil partner to the other;

(c) the making of periodical payments by one civil partner to a child of the family or to the other civil partner for the benefit of such a child;

(d) the payment by one party of a lump sum to a child of the family or to the other civil partner for the benefit of such a child.

(2) Any reference in this Part to the financial provision specified in an application under this Part or a request under paragraph 14 or specified by the court is a reference—

(a) to the type of provision specified in the application or request or by the court,

(b) to the amount so specified as the amount of any payment to be made under the application or order, and

Evidence to be produced where respondent not present etc.

11

(1) This paragraph applies if the respondent—

(a) is not present, or

(b) is not represented by counsel or a solicitor,

at the hearing of an application for an order under this Part.

(2) The court must not make an order under this Part unless there is produced to it such evidence as may be prescribed by rules of court of—

(a) the consent of the respondent to the making of the order,

(b) the financial resources of the respondent, and

(c) if the financial provision specified in the application includes or consists of provision in respect of a child of the family to be made by the applicant to the respondent for the benefit of the child or to the child, the financial resources of the child.

Exercise of powers in relation to children

12

(1) This paragraph applies if the financial provision specified in an application under this Part or a request under paragraph 14—

(a) includes, or

(b) consists of,

provision in respect of a child of the family.

(2) The court must not make an order under this Part unless it considers that the provision which the applicant or the respondent (as the case may be) has agreed to make in respect of the child provides for, or makes a proper contribution towards, the financial needs of the child.

Power to make alternative orders

13

(1) This paragraph applies if on an application under this Part or a request under paragraph 14 the court decides—

(a) that it would be contrary to the interests of justice to make an order for the making of the financial provision specified in the application or request, or

(b) that any financial provision which the applicant or the respondent (as the case may be) has agreed to make in respect of a child of the family does not provide for, or make a proper contribution towards, the financial needs of that child.

(2) If the court is of the opinion—

(a) that it would not be contrary to the interests of justice to make an order for the making of some other financial provision specified by the court, and

(b) that, in so far as that other financial provision contains any provision for a child of the family, it provides for, or makes a proper contribution towards, the financial needs of that child,

then, if both the civil partners agree, the court may order the applicant or the respondent (as the case may be) is to make that other financial provision.

Request for order under this Part in proceedings under Part 1

14

(1) On an application for an order under Part 1, both civil partners may, before the determination of the application, request the court to make an order under this Part that the applicant or the respondent (as the case may be) is to make the financial provision specified in the request.

(2) If an order is made under this Part on a request under this paragraph the application for the Part 1 order is to be treated as if it had been withdrawn.

(3) In any of the following provisions of this Schedule —

(a) references to an application for an order under this Part include a request under this paragraph, and

(b) references to an applicant or respondent, in relation to any such request, are to the applicant or respondent in relation to the pending application under Part 1.

Part 3 — Orders of court where civil partners living apart by agreement

Powers of court where civil partners are living apart by agreement

15

(1) If—

(a) the civil partners have been living apart for a continuous period exceeding 3 months, neither civil partner having deserted the other, and

(b) one of the civil partners has been making periodical payments for the benefit of the other civil partner or of a child of the family,

the other civil partner may apply to the court for an order under this Part.

(2) An application made under sub-paragraph (1) must specify the total amount of the payments made by the respondent during the period of 3 months immediately preceding the date of the making of the application.

(3) If on an application for an order under this Part the court is satisfied that the respondent has made the payments specified in the application, the court may make one or both of the orders set out in paragraph 16.

(4) Sub-paragraph (3) is subject to the provisions of this Schedule.

The orders that may be made under this Part

16

(1) The orders are—

(a) an order that the respondent is to make to the applicant such periodical payments for such term as may be specified;

(b) an order that the respondent is to make—

(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.

(2) “Specified” means specified in the order.

Restrictions on orders under this Part

17

The court in the exercise of its powers under this Part must not require—

(a) the respondent to make payments whose total amount during any period of 3 months exceeds the total amount paid by him for the benefit of—

(i) the applicant, or

(ii) a child of the family,

during the period of 3 months immediately preceding the date of the making of the application;

(b) the respondent to make payments to or for the benefit of any person which exceed in amount the payments which the court considers that it would have required the respondent to make to or for the benefit of that person on an application under Part 1;

(c) payments to be made to or for the benefit of a child of the family who is not the respondent’s child, unless the court considers that it would have made an order in favour of that child on an application under Part 1.

Relationship with powers under Part 1

18

(1) Sub-paragraph (2) applies if on an application under this Part the court considers that the orders which it has the power to make under this Part—

(a) would not provide reasonable maintenance for the applicant, or

(b) if the application relates to a child of the family, would not provide, or make a proper contribution towards, reasonable maintenance for that child.

(2) The court—

(a) must refuse to make an order under this Part, but

(b) may treat the application as if it were an application for an order under Part 1.

Matters to be taken into consideration

19

Paragraphs 4 to 6 apply in relation to an application for an order under this Part as they apply in relation to an application for an order under Part 1, subject to the modification that for the reference in paragraph 5(2)(c) to the occurrence of the conduct which is alleged as the ground of the application substitute a reference to the living apart of the civil partners.

Part 4 — Interim orders

Circumstances in which interim orders may be made

20

(1) This paragraph applies if an application has been made for an order under Part 1, 2 or 3.

(2) The court may make an interim order—

(a) at any time before making a final order on, or dismissing, the application, or

(b) on refusing (under paragraph 8) to make an order on the application.

(3) The High Court may make an interim order on ordering the application to be reheard by a court (after the refusal of an order under paragraph 8).

(4) The county court may make an interim order on an appeal from the order made by the court on the application at any time before making a final order on, or dismissing, an appeal made by virtue of paragraph 46.

(5) Not more than one interim order may be made with respect to an application for an order under Part 1, 2 or 3.

(6) Sub-paragraph (5) does not affect the power of a court to make an interim order on a further application under Part 1, 2 or 3.

Meaning of interim order

21

(1) An interim order is an order requiring the respondent to make such periodical payments as the court thinks reasonable—

(a) to the applicant,

(b) to any child of the family who is under 18, or

(2) In relation to an interim order in respect of an application for an order under Part 2 by the civil partner who has agreed to make the financial provision specified in the application, sub-paragraph (1) applies as if—

(a) the reference to the respondent were a reference to the applicant, and

(b) the references to the applicant were references to the respondent.

When interim order may start

22

(1) An interim order may provide for payments to be made from such date as the court may specify, except that the date must not be earlier than the date of the making of the application for an order under Part 1, 2 or 3.

(2) Sub-paragraph (1) is subject to paragraph 27(10) and (11).

Payments which can be treated as having been paid on account

23

(1) If an order under Part 1, 2 or 3 made by the county court on an appeal from the court provides for payments to be made from a date earlier than the date of the making of the order, the interim order may provide that payments made by the respondent under an order made by the court are to be treated, to such extent and in such manner as may be provided by the interim order, as having been paid on account of any payment provided for by the interim order.

(2) In relation to an interim order in respect of an application for an order under Part 2 by the civil partner who has agreed to make the financial provision specified in the application, sub-paragraph (1) applies as if the reference to the respondent were a reference to the applicant.

When interim order ceases to have effect

24

(1) Subject to sub-paragraphs (2) and (3), an interim order made on an application for an order under Part 1, 2 or 3 ceases to have effect on the earliest of the following dates—

(a) the date, if any, specified for the purpose in the interim order;

(b) the date on which the period of 14 weeks from the date of the making of the interim order ends;

(c) the date on which the court either makes a final order on, or dismisses, the application, or, where the interim order was made by a county court on an appeal, the date on which that court either makes a final order on, or dismisses, the appeal.

(2) If an interim order made under this Part would, but for this sub-paragraph, cease to have effect under sub-paragraph (1)(a) or (b)—

(a) the court which made the order, or

(b) in the case of an interim order made by the High Court, the court by which the application for an order under Part 1, 2 or 3 is to be reheard,

may by order provide that the interim order is to continue in force for a further period.

(3) An order continued in force under sub-paragraph (2) ceases to have effect on the earliest of the following dates—

(a) the date, if any, specified for the purpose in the order continuing it;

(b) the date on which ends the period of 14 weeks from—

(i) the date of the making of the order continuing it, or

(ii) if more than one such order has been made with respect to the application, the date of the making of the first such order;

(c) the date on which the court either makes a final order on, or dismisses, the application, or, where the interim order was made by a county court on an appeal, the date on which that court either makes a final order on, or dismisses, the appeal.

Supplementary

25

An interim order made by the High Court under paragraph 20(3) on ordering an application to be reheard by the court is to be treated for the purposes of—

(a) its enforcement, and

(b) Part 6 (variation etc. of orders),

as if it were an order of the court (and not of the High Court).

Part 5 — Commencement and duration of orders under Parts 1, 2 and 3

Duration of periodical payments order for a civil partner

26

(1) The court may specify in a periodical payments order made under paragraph 2(1)(a) or Part 3 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 the application for the order, or

(b) extend beyond the death of either of the civil partners.

(2) If—

(a) a periodical payments order is made under paragraph 2(1)(a) or Part 3 in favour of one of the civil partners, and

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

the periodical payments 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 the order on the date of that event.

(3) If a periodical payments order ceases to have effect by virtue of sub-paragraph (2) on the formation of a subsequent civil partnership or marriage by a person, that person must give notice of the subsequent civil partnership or marriage to the court.

(4) Any person who without reasonable excuse fails to give notice as required by sub-paragraph (3) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Age limit on making orders for financial provision for children and duration of such orders

27

(1) Subject to sub-paragraph (5), no order is to be made under paragraph 2(1)(c) or (d) or Part 3 in favour of a child who has reached 18.

(2) The term to be specified in a periodical payments order made under paragraph 2(1)(c) or Part 3 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 his 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 such 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 also the child is, will be or would be, in gainful employment, or

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

(6) Any order made under paragraph 2(1)(c) or Part 3 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.

(7) An order made under paragraph 2(1)(c) or Part 3 in favour of a child to whom sub-paragraph (5)(a) applies ceases to have effect if the child ceases to receive instruction or undergo training as mentioned in sub-paragraph (5)(a).

(8) If an order made under paragraph 2(1)(c) or Part 3 ceases to have effect by virtue of an event mentioned in sub-paragraph (7), the person to whom the periodical payments are directed by the order to be made must give notice of the event to the court.

(9) A person who without reasonable excuse fails to give notice as required by sub-paragraph (8) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(10) If—

(a) a maintenance calculation (“current calculation”) is in force with respect to a child, and

(b) an application is made for an order under paragraph 2(1)(c) or Part 3 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.

(11) “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.

(12) 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 order under paragraph 2(1)(c) or Part 3 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, or in any interim order under Part 4, made on that application, may begin with the relevant date or any later date.

(13) “The relevant date” means the date on which the maintenance calculation ceased to have effect.

(14) In this Schedule “maintenance calculation” means a calculation of maintenance made under the Child Support (Northern Ireland) Order 1991 and includes, except in circumstances prescribed for the purposes of the definition of that expression in Article 2(2) of that Order, a default or interim maintenance decision within the meaning of that Order.

Application of paragraphs 26 and 27 to Part 2 orders

28

(1) Subject to sub-paragraph (3), paragraph 26 applies in relation to an order under Part 2 which requires periodical payments to be made to a civil partner for his own benefit as it applies in relation to an order under paragraph 2(1)(a).

(2) Subject to sub-paragraph (3), paragraph 27 applies in relation to an order under Part 2 for the making of financial provision in respect of a child of the family as it applies in relation to an order under paragraph 2(1)(c) or (d).

(3) If—

(a) the court makes an order under Part 2 which contains provision for the making of periodical payments, and

(b) by virtue of paragraph 14, an application for an order under Part 1 is treated as if it had been withdrawn,

the term which may be specified under Part 2 as the term for which the payments are to be made may begin with the date of the making of the application for the order under Part 1 or any later date.

Effect on certain orders of parties living together

29

(1) Sub-paragraph (2) applies if periodical payments are required to be made to a civil partner (whether for the civil partner’s own benefit or for the benefit of a child of the family)—

(a) by an order made under Part 1 or 2, or

(b) by an interim order made under Part 4 (otherwise than on an application under Part 3).

(2) The order is enforceable even if—

(a) the civil partners are living with each other at the date of the making of the order, or

(b) if they are not living with each other at that date, they subsequently resume living with each other;

but the order ceases to have effect if after that date the civil partners continue to live with each other, or resume living with each other, for a continuous period exceeding 6 months.

(3) Sub-paragraph (4) applies if—

(a) an order is made under Part 1 or 2 which requires periodical payments to be made to a child of the family, or

(b) an interim order is made under Part 4 (otherwise than on an application under Part 3) which requires periodical payments to be made to a child of the family.

(4) Unless the court otherwise directs, the order continues to have effect and is enforceable even if—

(a) the civil partners are living with each other at the date of the making of the order, or

(b) if they are not living with each other at that date, they subsequently resume living with each other.

(5) An order made under Part 3, and any interim order made on an application for an order under that Part, ceases to have effect if the civil partners resume living with each other.

(6) If an order made under this Schedule ceases to have effect under—

(a) sub-paragraph (2) or (5), or

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

the 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.

(7) If an order made under this Schedule ceases to have effect under sub-paragraph (2) or (5), the civil partners shall give notice of that fact to the court straight away.

Part 6 — Variation etc. of orders

Power to vary, revoke, suspend or revive order

30

(1) If the court has made an order for the making of periodical payments under Part 1, 2 or 3, it may, on an application made under this Part—

(a) vary or revoke the order,

(b) suspend any provision of it temporarily, or

(2) If the court has made an order under Part 4, it 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 the court has made an order under paragraph 2(1)(a) or (c) for the making of periodical payments, it 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 the court has made an order under Part 2 for the making of periodical payments by a civil partner, it 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 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 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 Article 12 of the 1991 Order.

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) 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, 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 Article 85(3)(a) to (d) of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).

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

36

(1) If—

(a) a court of summary jurisdiction 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 Article 85(7) of the 1981 Order (standing order, etc.),

an application may be made under this sub-paragraph to the clerk of petty sessions 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), the clerk, after—

(a) serving written notice of the application on the respondent, and

(b) allowing the respondent, within the period of 14 days from the date of the serving 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 collecting officer.

(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 Article 85(3)(a) to (d) of the 1981 Order.

37

(1) Before varying the order by exercising one of its powers under Article 85(3)(a) to (d) of the 1981 Order, 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 Article 85(3)(c) or (d) of the 1981 Order, 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 Article 85(5)(b).

38

(1) Article 85(5) of the 1981 Order (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 Article 85.

(2) None of the powers of the court, or of the clerk of petty sessions, 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 Article 85 of the 1981 Order).

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 the 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 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 to 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 or remission of lump sum

41

(1) If in the exercise of its powers under Article 97 of the 1981 Order the 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

(2) On the hearing of a complaint for the enforcement, revocation, suspension or variation of an order under this Schedule which provides for the payment of a lump sum the court may remit the whole or any part of that sum.

Supplementary provisions with respect to variation and revocation of orders

42

The powers of a court of summary jurisdiction to revoke, suspend, revive or vary an order for the periodical payment of money and the power of the clerk of petty sessions to vary such an order under Article 86 of the 1981 Order do not apply in relation to an order made under this Schedule.

Part 7 — Arrears and repayments

Enforcement etc. of orders for payment of money

43

Article 36 of the Domestic Proceedings (Northern Ireland) Order 1980 (S.I. 1980/563 (N.I. 5)) applies in relation to orders under this Schedule as it applies in relation to orders under that Order.

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 an application made under this paragraph 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 in proceedings in the High Court or a court of summary jurisdiction for 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 or a court of summary jurisdiction, as the circumstances require.

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Civil Partnership Act 2004

Powers to vary, discharge, suspend or revive order

46

Power to remit arrears

47

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

48

Variation etc. of property adjustment and pension sharing orders

49

50

51

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

52

Variation of secured periodical payments order where person liable has died

53

Power to direct when variation etc. is to take effect

54

55

Part 11 — Arrears and repayments

Payment of certain arrears unenforceable without the leave of the court

56

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

57

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

58

Part 12 — Consent orders and maintenance agreements

Consent orders for financial relief

59

Meaning of “maintenance agreement” and “financial arrangements”

60

Validity of maintenance agreements

61

Alteration of agreements by court during lives of parties

62

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

63

Provisions relating to periodical and secured periodical payments: duration

64

Saving

65

Alteration of agreements by court after death of one party

66

Part 13 — Miscellaneous and supplementary

Avoidance of transactions intended to prevent or reduce financial relief

67

68

69

70

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

71

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

72

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

73

Appeals relating to pension sharing orders which have taken effect

74

Interpretation

75

SCHEDULE 16

Part 1 — Failure to maintain etc.: financial provision

Circumstances in which orders under this Part may be made

1

The orders: periodical and secured periodical payments and lump sums

2

Particular provision that may be made by lump sum orders

3

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

4

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

5

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

6

Reconciliation

7

Refusal of order in case more suitable for High Court

8

Part 2 — Orders for agreed financial provision

Orders for payments which have been agreed by the parties

9

Meaning of “financial provision” and of references to specified financial provision