Article 41.
1. Where one spouse is entitled to occupy a dwelling-house by virtue of a protected tenancy, a statutory tenancy or a secure tenancy, then, on granting a decree of divorce, a decree or nullity of marriage or a decree of judicial separation, or at any time thereafter (whether, in the case of a decree of divorce or nullity of marriage, before or after the decree is made absolute), the court by which the decree is granted may make an order under Part II.
2.—(1) Where—
(a)one spouse is entitled to occupy a dwelling-house by virtue of a protected tenancy, a statutory tenancy or a secure tenancy; and
(b)an order under Article 18(2)(i) of the Domestic Proceedings (Northern Ireland) Order 1980(1) (other than such an order made as an interim exclusion order by virtue of Article 21 of that Order) excluding that spouse from the dwelling-house is made upon the application of the other spouse,
the High Court or a divorce county court may, on the application of the other spouse within 3 months after the order is made, make an order under Part II.
(2) Where while an order referred to in sub-paragraph (1)(b) is in force an application is made for an order under Part II, the court may make the order applied for notwithstanding that, at the time when it does so, the first mentioned order has ceased to have effect otherwise than by reason of its revocation; and where an order is made under Part II it shall not be affected by an order referred to in sub-paragraph (1)(b) subsequently ceasing to have effect.
3.—(1) Where a spouse is entitled to occupy the dwelling-house by virtue of a protected tenancy or a secure tenancy the court may by order direct that, as from such date as may be specified in the order, there shall, by virtue of the order and without further assurance, be transferred to, and vested in, the other spouse—
(a)the estate which the spouse so entitled had in the dwelling-house immediately before that date by virtue of the lease or agreement creating the tenancy and any assignment of that lease or agreement, with all rights, privileges and appurtenances attaching to that estate but subject to all covenants, obligations, liabilities and incumbrances to which it is subject; and
(b)where the spouse so entitled is an assignee of such lease or agreement, the liability of that spouse under any covenant of indemnity by the assignee expressed or implied in the assignment of the lease or agreement to that spouse.
(2) Where an order is made under this paragraph, any liability or obligation to which the spouse so entitled is subject under any covenant having reference to the dwelling-house in the lease, agreement or assignment being a liability or obligation falling due to be discharged or performed on or after the date so specified, shall not be enforceable against that spouse.
(3) Where the spouse so entitled is a successor within the meaning of Chapter II of Part II of the Housing (Northern Ireland) Order 1983(2), his or her spouse (or, as the case may be, former spouse) shall be deemed also to be a successor within the meaning of that Chapter.
4.—(1) Where a spouse is entitled to occupy the dwelling-house by virtue of a statutory tenancy, the court may by order direct that, as from such date as may be specified in the order, that spouse shall cease to be entitled to occupy the dwelling-house and that the other spouse shall be deemed to be the tenant or, as the case may be, the sole tenant under that statutory tenancy.
(2) The question whether the provisions of paragraphs 1 to 4, or, as the case may be, paragraphs 6 to 9 of Schedule 1 to the Rent (Northern Ireland) Order 1978(3) as to the succession by the widow or widower of a deceased tenant, or by a member of the deceased tenant’s family, to the statutory tenancy are capable of having effect in the event of the death of the person deemed by an order under this paragraph to be the tenant or sole tenant under the statutory tenancy shall be determined according as those provisions or the corresponding provisions of the Rent Restriction Acts have or have not already had effect in relation to the statutory tenancy.
5.—(1) Where the court makes an order under Part II, it may by order direct that both spouses shall be jointly and severally liable to discharge or perform any or all of the liabilities and obligations in respect of the dwelling-house (whether arising under the tenancy or otherwise) which have at the date of the order fallen due to be discharged or performed by one only of the spouses or which, but for the direction, would before the date specified as the date on which the order is to take effect fall due to be discharged or performed by one only of them.
(2) Where the court gives a direction under sub-paragraph (1) it may further direct that either spouse shall be liable to indemnify the other in whole or in part against any payment made or expenses incurred by the other in discharging or performing any such liability or obligation.
6. In the case of a decree or divorce or nullity of marriage, the date specified in an order under Part II as the date on which the order is to take effect shall not be earlier than the date on which the decree is made absolute.
7. If after the grant of a decree dissolving or annulling a marriage either spouse remarries, that spouse shall not be entitled to apply, by reference to the grant of that decree, for an order under Part II.
8.—(1) Rules of court shall be made requiring the court before it makes an order under this Schedule to give the landlord of the dwelling-house to which the order will relate an opportunity of being heard.
(2) Rules of court may provide that an application for an order under this Schedule in the circumstances mentioned in paragraph 1 shall not, without the leave of the court by which the decree of divorce, nullity of marriage or judicial separation was granted, be made after the expiration of such period from the grant of the decree as may be prescribed by the rules.
9. Where a spouse is entitled to occupy a dwelling-house by virtue of a tenancy, this Schedule shall not affect the operation of Articles 3 and 4 of the Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984(4) in relation to the other spouse’s rights of occupation, and the court’s power to make orders under this Schedule shall be in addition to the powers conferred by those Articles.
10. Without prejudice to Article 61 of the County Courts (Northern Ireland) Order 1980(5) (cases stated), rules of court shall make provision for an appeal to the Court of Appeal from any order made by a divorce county court in the exercise of the jurisdiction conferred by this Schedule, or from the dismissal of any application for such an order, upon a point of law, a question of fact or the admission or rejection of any evidence.
11.—(1) In this Schedule the following words and expressions have the same meaning as in the Rent (Northern Ireland) Order 1978(6), namely—
(a)dwelling-house;
(b)the landlord;
(c)protected tenancy;
(d)Rent Restriction Acts;
(e)statutory tenancy.
(2) In this Schedule—
“divorce county court” has the meaning assigned to it by the principal Order;
“secure tenancy” has the meaning assigned to it by Article 25 of the Housing (Northern Ireland) Order 1983(7).
(3) In this Schedule “spouse” includes a party to a void or voidable marriage and the reference in paragraph 7 to remarriage includes a reference to a marriage which is by law void or voidable.
(4) References in this Schedule to a spouse being entitled to occupy a dwelling-house by virtue of a protected, statutory or secure tenancy apply whether that entitlement is in his or her own right, or jointly with the other spouse.
Article 42(1).
1. In section 18(2A) after the word “England” there shall be inserted the words “or Northern Ireland”.
2. In section 1 after subsection (1) there shall be inserted the following subsection—
“(1A) Subsection (1) shall extend to proceedings under Part V of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 subject to the modification that the matters allowed to be published or caused or procured to be published by virtue of paragraph (b) of that subsection shall be particulars of the declaration sought.”.
3. In section 9 in paragraph (a) after the words “High Court” there shall be inserted the words “or a county court”.
4. In section 10—
(a)in subsection (1) after the words “High Court” there shall be inserted the words “, a county court” ;
(b)in subsection (2) after paragraph (f) there shall be inserted the following paragraph—
“(g)Article 21(a) of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989;”.
5. In section 11(1) after the words “High Court” there shall be inserted the words “or a county court”.
6. In section 12 after subsection (3) there shall be inserted the following subsection—
“(3A) Any person under an obligation to make payments under an order registered in a court of summary jurisdiction shall give notice of any change of address to the clerk of the court; and any person who without reasonable excuse fails to give such a notice shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.”.
7. In section 13 after subsection (7A) there shall be inserted the following subsection—
“(7B) No application for any variation of a registered order shall be made to any court in respect of an order made under Article 21(a) of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989.”.
8. In section 15(6) after the words “High Court” in both places where they occur there shall be inserted the words “or county court”.
9. In section 16—
(a)in subsection (2) for the words “court of summary jurisdiction, be construed as a reference to” there shall be substituted the words “county court or a court of summary jurisdiction, be construed respectively as a reference to county court rules or”;
(b)in subsection (3) after the words “High Court” there shall be inserted the words “, by a county court”
(c)in subsection (6) after the words “High Court” there shall be inserted the words “or by a county court”.
10. In section 8(5)—
(a)in the definition of “matrimonial proceedings” after the words “the High Court” where they first occur there shall be inserted the words “or a divorce county court” ;
(b)after the word “subsection” there shall be inserted the words ““divorce county court” has the same meaning as in the Matrimonial Causes (Northern Ireland) Order 1978 and”.
11. In section 29A(3)(c) for the words “Article 5(1)(c)” there shall be substituted the words “Article 5(2) and (3)”.
12. In Article 3(5) for the words “Articles 4(2), 5(3) and 7” there shall be substituted the words “Articles 4(2) and 7”.
13. In Article 29(4) for the words “Article 27(1)(c)” there shall be substituted the words “Article 27(2)(c)” and for the words “Article 27(2)(d)” there shall be substituted the words “Article 27 (2)(c) (as it applies by virtue of Article 27(3)(e))”.
14. In Article 37—
(a)in paragraph (2) for the words “Article 27(3)” there shall be substituted the words “Article 27(4)” ;
(b)in paragraph (3) after the words “is resident in” there shall be inserted the words “the country court division which includes”.
15. In Article 50(2) after sub-paragraph (d) there shall be inserted the following sub-paragraph—
“(dd)an order under Part IV of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989;”.
16. In Article 54—
(a)in paragraph (1) for sub-paragraph (aa) there shall be substituted the following sub-paragraph—
“(aa)Part IV, Article 31, and Part VI of, and Schedule 1 to, the Matrimonial and Family Proceedings (Northern Ireland) Order 1989;”;
(b)in paragraph (1)(b) for the words from “in this Order” to the end there shall be substituted the words “by the provisions mentioned in sub-paragraphs (a) and (aa)”;
(c)in paragraph (3) after sub-paragraph (g) there shall be added the following sub-paragraph—
“(h)which relate to the costs of proceedings, may—
(i)amend or repeal any statutory provision relating to the practice and procedure of the Supreme Court or county courts so far as may be necessary in consequence of provision made by the rules; and
(ii)notwithstanding anything in the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, make different provision according to whether each or any of the parties is entitled to legal aid under Part II of that Order in connection with the proceedings.”.
17.—(1) In Schedule 2 at the end there shall be added the following paragraph—
4. Without prejudice to Article 61 of the County Courts (Northern Ireland) Order 1980 (cases stated), an appeal shall lie to the Court of Appeal from any order made by a county court in the exercise of the jurisdiction conferred by paragraph 1 or 2, or from the dismissal of any application for such an order, upon a point of law, a question of fact or the admission or rejection of any evidence.”.
(2) Subject to rules of court, sub-paragraph (1) applies in relation to orders made and applications dismissed before as well as after the coming into operation of this paragraph.
18. In Article 2(2) the definition of “the respondent” shall be omitted.
19. In Article 3 the words “(“the respondent” )” shall be omitted.
20. In Article 9(5) for the words “Article 5(1)(c)” there shall be substituted the words “Article 5(2)(c)”.
21. In Article 13—
(a)in paragraph (2) after the words “Article 10(2)” there shall be inserted the words “on an application for an order under Article 4 or 9”;
(b)after paragraph (2) there shall be inserted the following paragraph—
“(2A) Where by an order made under Article 10(2) on an application for an order under Article 8 the right to the actual custody of a child is given to the party to the marriage who has agreed to make the financial provision specified in the application, the court may make one or both of the following orders, that is to say—
(a)an order that the other party to the marriage shall make to that party for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;
(b)an order that the other party to the marriage shall pay to that party for the benefit of the child or to the child such lump sum as may be so specified.”;
(c)in paragraph (5) after the words “paragraph (2)” there shall be inserted “(2A)” and for the words “Article 5(2)” there shall be substituted the words “Article 5(3)”;
(d)in paragraph (6) after the words “paragraph (2)(a)” there shall be inserted “(2A)(a)”; and
(e)in paragraph (7) after the words “paragraph (2)(b)” in both places where they occur there shall be inserted “(2A)(b)”.
22. In Article 20 after paragraph (3) there shall be inserted the following paragraph—
“(3A) Where an application is made for an order under Article 8 by the party to the marriage who has agreed to make the financial provision specified in the application—
(a)paragraph (1) shall apply as if the reference in sub-paragraph (i) to the respondent were a reference to the applicant and the references to the applicant were references to the respondent; and
(b)paragraphs (2) and (3) shall apply accordingly.”.
23. In Article 22(8) after the word “respondent” there shall be inserted the words “or the applicant, as the case may be,”.
24. In Article 31 at the end of paragraph (3) there shall be added the words “or, in a case where there was made to the court of summary jurisdiction an application for an order under Article 4 and a request under Article 8(2) and the term of the periodical payments was or might have been ordered to begin on the date of the making of the application for an order under Article 4, the date of the making of that application”.
25. In Schedule 2 in paragraph 2, after sub-paragraph (b), there shall be inserted the following sub-paragraph—
“(bb)on an application after the coming into operation of paragraph 25 of Schedule 1 to the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 for the variation, revival or discharge of the order, the court, in exercising its powers under the said section 5 in relation to any provision of the order requiring the payment of money, shall have power to order that payments required to be made for the maintenance of a child of the family shall be made to the child himself;”.
Article 42(2).
| Chapter or Number | Short Title | Extent of Repeal |
|---|---|---|
| 1868 c. 20. | The Legitimacy Declaration Act (Ireland) 1868. | The whole Act. |
| 1870 c. 110. | The Matrimonial Causes and Marriage Law (Ireland) Amendment Act 1870. | In section 7 the words “in respect of jactitation of marriage, and”. |
| 1928 c. 5 (N.I.). | The Legitimacy Act (Northern Ireland) 1928. | Section 2. |
| 1961 c. 5 (N.I.). | The Legitimacy Act (Northern Ireland) 1961. | Section 2(5). |
| 1972 c. 38 | The Matrimonial Proceedings (Polygamous Marriages) Act 1972. | Section 3 |
| 1978 NI 15. | The Matrimonial Causes (Northern Ireland) Order 1978. | In Article 48(11) the words form “or any application” to the end. |
| 1978 NI 20. | The Rent (Northern Ireland) Order 1978. | Article 6. |
| Schedule 2. | ||
| In Schedule 8, paragraph 11. | ||
| 1980 NI 5. | The Domestic Proceedings (Northern Ireland) Order 1980. | In Article 2(2) the definition of the “the respondent”. |
| In Article 3 the words “(“the respondent”)”. | ||
| In Schedule 3, paragraphs 19 and 20. | ||
| 1983 NI 15. | The Housing (Northern Ireland) Order 1983. | Article 43. |
| 1984 NI 14. | The Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984. | Article 11. |
| Schedule 1. | ||
| 1986 NI 13. | The Housing (Northern Ireland) Order 1986. | In Schedule 8, paragraph 22. |