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Matrimonial Causes (Northern Ireland) Order 1978

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Variation, discharge, etc., of certain orders for financial reliefN.I.

33.—(1) Where the court has made an order to which this Article applies, then, subject to the provisions of this Article[F1 and of Article 30(1A)], the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.

(2) This Article applies to the following orders, that is to say—

(a)any order for maintenance pending suit and any interim order for maintenance;

(b)any periodical payments order;

(c)any secured periodical payments order;

(d)any order made by virtue of Article 25(3)( c) or 29(9)( b) (provision for payment of a lump sum by instalments);

[F2(dd)any deferred order made by virtue of Article 25(1)(c) (lump sums) which includes provision made by virtue of —

(i)Article 27B(4), or

(ii)Article 27C,

(provision in respect of pension rights);]

(e)any order for a settlement of property under Article 26(1)( b) or for a variation of settlement under Article 26(1)( c) or ( d), being an order made on or after the grant of a decree of judicial separation.

[F3(f)a pension sharing order under Article 26A which is made at a time before the decree has been made absolute.]

[F1(2A) Where the court has made an order referred to in paragraph (2)(a), (b) or (c), then, subject to the provisions of this Article, the court shall have power to remit the payment of any arrears due under the order or of any part thereof.]

[F2(2B) Where the court has made an order referred to in paragraph (2)(dd)(ii), this Article shall cease to apply to the order on the death of either of the parties to the marriage.]

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

(4) The court shall not exercise the powers conferred by this Article in relation to an order for a settlement under Article 26(1)( b) or for a variation of settlement under Article 26(1)( c) or ( d) except on an application made in proceedings—

(a)for the rescission of the decree of judicial separation by reference to which the order was made, or

(b)for the dissolution of the marriage in question.

[F3(4A) In relation to an order which falls within sub-paragraph (f) of paragraph (2) ( “the paragraph (2) order”)—

(a)the powers conferred by this Article may be exercised—

(i)only on an application made before the paragraph (2) order has or, but for sub‐pargraph (b), would have taken effect; and

(ii)only if, at the time when the application is made, the decree has not been made absolute; and

(b)an application made in accordance with sub‐paragraph (a) prevents the paragraph (2) order from taking effect before the application has been dealt with.

(4B) No variation of a pension sharing order shall be made so as to take effect before the decree is made absolute.

(4C) The variation of a pension sharing order prevents the order taking effect before the end of such period after the making of the variation as may be prescribed by regulations made by the Lord Chancellor.

(4D) Regulations under paragraph (4C) shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.]

(5) No property adjustment order[F3 or pension sharing order] shall be made on an application for the variation of a periodical payments or secured periodical payments order made (whether in favour of a party to a marriage or in favour of a child of the family) under Article 25, and no order for the payment of a lump sum shall be made on an application for the variation of a periodical payments or secured periodical payments order in favour of a party to a marriage (whether made under Article 25 or under Article 29).

(6) Where the person liable to make payments under a secured periodical payments order has died, an application under this Article relating to that order may be made by the person entitled to payments under the order or by the personal representatives of the deceased person, but no such application shall, except with the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of that person is first taken out.

[F1(7) In exercising the powers conferred by this Article the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18, and the circumstances of the case shall include 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, and—

(a)in the case of a periodical payments or secured periodical payments order made on or after the grant of a decree of divorce of nullity of marriage, the court shall consider whether in al 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 to be made or secured only for such further period as will in the opinion of the court be sufficient to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments;

(b)in a case where the party against whom the order was made has died, the circumstances of the case shall also include the changed circumstances resulting from his or her death.]

(8) The personal representatives of a deceased person against whom a secured periodical payments order was made shall not be liable for having distributed any part of the estate of the deceased after the expiration of the period of six months referred to in paragraph (6) on the ground that they ought to have taken into account the possibility that the court might permit an application under this Article to be made after that period by the person entitled to payments under the order; but this paragraph shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this Article.

(9) In considering for the purposes of paragraph (6) the question when representation was first taken out, a grant limited to part of the estate of the deceased shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.

[F1(10) Where the court, in exercise of its powers under this Article, decides to vary or decides to vary or discharge a periodical payments or secured periodical payments order, then, subject to Article 30(1) and (2), the court shall have power to direct that the variation or discharge shall not take effect until the expiration of such period as may be specified in the order.]

[F4(11) Paragraph (12) applies where—

(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[F5maintenance calculation]([F6 “the calculation”]) is made with respect to one or more but not all of the children in whose favour the order is in force; and

(d)an application is made, before the end of the period of 6 months beginning with the date on which[F6the calculation] was made, for the variation or discharge of the order.

(12) Where this paragraph applies, the court may, in exercise of its powers under this Article to vary or discharge the order, direct that the variation or discharge shall take effect from the date on which[F7the calculation] took effect or any later date.

(13) Paragraph (14) applies where—

(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 is affected by a[F8maintenance 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 spousal order”) in favour of a party to a marriage 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[F8maintenance calculation] was made, for the spousal order to be varied or discharged.

(14) Where this paragraph applies, the court may, in exercise of its powers under this Article to vary or discharge the spousal order, direct that the variation or discharge shall take effect from the date on which the child order became so affected or any later date.

(15) For the purposes of paragraphs (13) and (14), an order is affected if it ceases to have effect or is modified by or under Article 12 of the Child Support (Northern Ireland) Order 1991.

(16) Paragraphs (12) and (14) are without prejudice to any other power of the court to direct that the variation or discharge of an order under this Article shall take effect from a date earlier than that on which the order for variation or discharge was made.]

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F4SR 1993/98

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