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Matrimonial Causes Act 1973

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Matrimonial Causes Act 1973

1973 CHAPTER 18

F1An Act to consolidate certain enactments relating to matrimonial proceedings, maintenance agreements, and declarations of legitimacy, validity of marriage and British nationality, with amendments to give effect to recommendations of the Law Commission.

[23rd May 1973]

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Amendments (Textual)

F1Act: for the words "Supreme Court Act 1981" wherever they occur there is substituted (prosp.) the words "Senior Courts Act 1981" by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148(1), Sch. 11 para. 1(2) [Editorial Note: this amendment will be carried through into the text of the Act at the same time as any other effects on the Act for the year in which the relevant commencement order (or first such order) is made]

Commencement Information

I1Act not in force at Royal Assent, see s. 55(2); Act wholly in force at 1.1.1974

Part IE+W Divorce, Nullity and Other Matrimonial Suits

DivorceE+W

1Divorce on breakdown of marriage.E+W

(1)Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2)The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—

(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;

(e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

(3)On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

(4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to [F2section 5] below, grant a decree of divorce.

(5)Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection.

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Amendments (Textual)

2 Supplemental provisions as to facts raising presumption of breakdown.E+W

(1)One party to a marriage shall not be entitled to rely for the purposes of section 1(2)(a) above on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months.

(2)Where the parties to a marriage have lived with each other after it became known to one party that the other had committed adultery, but subsection (1) above does not apply, in any proceedings for divorce in which the petitioner relies on that adultery the fact that the parties have lived with each other after that time shall be disregarded in determining for the purposes of section 1(2)(a) above whether the petitioner finds it intolerable to live with the respondent.

(3)Where in any proceedings for divorce the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him, but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the petitioner and held by the court to support his allegation, that fact shall be disregarded in determining for the purposes of section 1(2)(b) above whether the petitioner cannot reasonably be expected to live with the respondent if the length of that period or of those periods together was six months or less.

(4)For the purposes of section 1(2)(c) above the court may treat a period of desertion as having continued at a time when the deserting party was incapable of continuing the necessary intention if the evidence before the court is such that, had that party not been so incapable, the court would have inferred that his desertion continued at that time.

(5)In considering for the purposes of section 1(2) above whether the period for which the respondent has deserted the petitioner or the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding six months) or of any two or more periods (not exceeding six months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period of desertion or of the period for which the parties to the marriage lived apart, as the case may be.

(6)For the purposes of section 1(2)(d) and (e) above and this section a husband and wife shall be treated as living apart unless they are living with each other in the same household, and references in this section to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household.

(7)Provision shall be made by rules of court for the purpose of ensuring that where in pursuance of section 1(2)(d) above the petitioner alleges that the respondent consents to a decree being granted the respondent has been given such information as will enable him to understand the consequences to him of his consenting to a decree being granted and the steps which he must take to indicate that he consents to the grant of a decree.

[F33 Bar on petitions for divorce within one year of marriage.E+W

(1)No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage.

(2)Nothing in this section shall prohibit the presentation of a petition based on matters which occurred before the expiration of that period.]

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Amendments (Textual)

4 Divorce not precluded by previous judicial separation.E+W

(1)A person shall not be prevented from presenting a petition for divorce, or the court from granting a decree of divorce, by reason only that the petitioner or respondent has at any time, on the same facts or substantially the same facts as those proved in support of the petition, been granted a decree of judicial separation or an order under, or having effect as if made under, the M1Matrimonial Proceedings (Magistrates’ Courts) Act 1960 [F4or Part I of the M2Domestic Proceedings and Magistrates’ Courts Act 1978] or any corresponding enactments in force in Northern Ireland, the Isle of Man or any of the Channel Islands.

(2)On a petition for divorce in such a case as is mentioned in subsection (1) above, the court may treat the decree or order as sufficient proof of any adultery, desertion or other fact by reference to which it was granted, but shall not grant a decree of divorce without receiving evidence from the petitioner.

(3)Where a petition for divorce in such a case follows a decree of judicial separation or [F5(subject to sub-section (5) below)] an order containing a provision exempting one party to the marriage from the obligation to cohabit with the other, for the purposes of that petition a period of desertion immediately preceding the institution of the proceedings for the decree or order shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since it was granted, be deemed immediately to precede the presentation of the petition.

[F6(4)For the purposes of section 1(2)(c) above the court may treat as a period during which the respondent has deserted the petitioner any of the following periods, that is to say—

(a)any period during which there is in force an injunction granted by the High Court or a county court which excludes the respondent from the matrimonial home;

(b)any period during which there is in force an order made by the High Court or a county court under [F7section 1 or 9 of the Matrimonial Homes Act 1983]

(c)any period during which there is in force an order made by a magistrates’ court under section 16(3) of the M3Domestic Proceedings and Magistrates’ Courts Act 1978 which requires the respondent to leave the matrimonial home or prohibits the respondent from entering the matrimonial home.

(5)Where—

(a)a petition for divorce is presented after the date on which Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978 comes into force, and

(b)an order made under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 containing a provision exempting the petitioner from the obligation to cohabit with the respondent is in force on that date,

then, for the purposes of section 1(2)(c) above, the court may treat a period during which such a provision was included in that order (whether before or after that date) as a period during which the respondent has deserted the petitioner.]

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Amendments (Textual)

F7Words substituted for s. 4(4)(b)(i) and (ii) by Matrimonial Homes Act 1983 (c. 19, SIF 49:5), ss. 12, 13, Sch. 2

Marginal Citations

5Refusal of decree in five year separation cases on grounds of grave hardship to respondent.E+W

(1)The respondent to a petition for divorce in which the petitioner alleges five years’ separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage.

(2)Where the grant of a decree is opposed by virtue of this section, then—

(a)if the court finds that the petitioner is entitled to rely in support of his petition on the fact of five years’ separation and makes no such finding as to any other fact mentioned in section 1(2) above, and

(b)if apart from this section the court would grant a decree on the petition,

the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage it shall dismiss the petition.

(3)For the purposes of this section hardship shall include the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved.

6Attempts at reconciliation of parties to marriage.E+W

(1)Provision shall be made by rules of court for requiring the solicitor acting for a petitioner for divorce to certify whether he has discussed with the petitioner the possibility of a reconciliation and given him the names and addresses of persons qualified to help effect a reconciliation between parties to a marriage who have become estranged.

(2)If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation.

The power conferred by the foregoing provision is additional to any other power of the court to adjourn proceedings.

7 Consideration by the court of certain agreements or arrangements.E+W

Provision may be made by rules of court for enabling the parties to a marriage, or either of them, on application made either before or after the presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected with, the proceedings for divorce which are contemplated or, as the case may be, have begun, and for enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the agreement or arrangement and to give such directions, if any, in the matter as it thinks fit.

8 Intervention of Queen’s Proctor.E+W

(1)In the case of a petition for divorce—

(a)the court may, if it thinks fit, direct all necessary papers in the matter to be sent to the Queen’s Proctor, who shall under the directions of the Attorney-General instruct counsel to argue before the court any question in relation to the matter which the court considers it necessary or expedient to have fully argued;

(b)any person may at any time during the progress of the proceedings or before the decree nisi is made absolute give information to the Queen’s Proctor on any matter material to the due decision of the case, and the Queen’s Proctor may thereupon take such steps as the Attorney-General considers necessary or expedient.

(2)Where the Queen’s Proctor intervenes or shows cause against a decree nisi in any proceedings for divorce, the court may make such order as may be just as to the payment by other parties to the proceedings of the costs incurred by him in so doing or as to the payment by him of any costs incurred by any of those parties by reason of his so doing.

(3)The Queen’s Proctor shall be entitled to charge as part of the expenses of his office—

(a)the costs of any proceedings under subsection (1)(a) above;

(b)where his reasonable costs of intervening or showing cause as mentioned in subsection (2) above are not fully satisfied by any order under that subsection, the amount of the difference;

(c)if the Treasury so directs, any costs which he pays to any parties under an order made under subsection (2).

9Proceedings after decree nisi: general powers of court.E+W

(1)Where a decree of divorce has been granted but not made absolute, then, without prejudice to section 8 above, any person (excluding a party to the proceedings other than the Queen’s Proctor) may show cause why the decree should not be made absolute by reason of material facts not having been brought before the court; and in such a case the court may—

(a)notwithstanding anything in section 1(5) above (but subject to sections 10(2) to (4) and 41 below) make the decree absolute; or

(b)rescind the decree; or

(c)require further inquiry; or

(d)otherwise deal with the case as it thinks fit.

(2)Where a decree of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned in paragraphs (a) to (d) of subsection (1) above.

10Proceedings after decree nisi: special protection for respondent in separation cases.E+W

(1)Where in any case the court has granted a decree of divorce on the basis of a finding that the petitioner was entitled to rely in support of his petition on the fact of two years’ separation coupled with the respondent’s consent to a decree being granted and has made no such finding as to any other fact mentioned in section 1(2) above, the court may, on an application made by the respondent at any time before the decree is made absolute, rescind the decree if it is satisfied that the petitioner misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding to give his consent.

(2)The following provisions of this section apply where—

(a)the respondent to a petition for divorce in which the petitioner alleged two years’ or five years’ separation coupled, in the former case, with the respondent’s consent to a decree being granted, has applied to the court for consideration under subsection (3) below of his financial position after the divorce; and

(b)the court has granted a decree on the petition on the basis of a finding that the petitioner was entitled to rely in support of his petition on the fact of two years’ or five years’ separation (as the case may be) and has made no such finding as to any other fact mentioned in section 1(2) above.

(3)The court hearing an application by the respondent under subsection (2) above shall consider all the circumstances, including the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties, and the financial position of the respondent, as having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first; and, subject to subsection (4) below, the court shall not make the decree absolute unless it is satisfied—

(a)that the petitioner should not be required to make any financial provision for the respondent, or

(b)that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.

(4)The court may if it thinks fit makes the decree absolute notwithstanding the requirements of subsection (3) above if—

(a)it appears that there are circumstances making it desirable that the decree should be made absolute without delay, and

(b)the court has obtained a satisfactory undertaking from the petitioner that he will make such financial provision for the respondent as the court may approve.

[F810A Proceedings after decree nisi: religious marriageE+W
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Amendments (Textual)

(1)This section applies if a decree of divorce has been granted but not made absolute and the parties to the marriage concerned—

(a)were married in accordance with—

(i)the usages of the Jews, or

(ii)any other prescribed religious usages; and

(b)must co-operate if the marriage is to be dissolved in accordance with those usages.

(2)On the application of either party, the court may order that a decree of divorce is not to be made absolute until a declaration made by both parties that they have taken such steps as are required to dissolve the marriage in accordance with those usages is produced to the court.

(3)An order under subsection (2)—

(a)may be made only if the court is satisfied that in all the circumstances of the case it is just and reasonable to do so; and

(b)may be revoked at any time.

(4)A declaration of a kind mentioned in subsection (2)—

(a)must be in a specified form;

(b)must, in specified cases, be accompanied by such documents as may be specified; and

(c)must, in specified cases, satisfy such other requirements as may be specified.

(5)The validity of a decree of divorce made by reference to such a declaration is not to be affected by any inaccuracy in that declaration.

(6)Prescribed” means prescribed in an order made by the Lord Chancellor [F9after consulting the Lord Chief Justice]F9 and such an order—

(a)must be made by statutory instrument;

(b)shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7)Specified” means specified in rules of court.

[F10(8)The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.F10]]

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Amendments (Textual)

NullityE+W

11Grounds on which a marriage is void.E+W

A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say—

(a)that it is not a valid marriage under the provisions of [F11the [F12Marriage Acts 1949 to 1986]] (that is to say where—

(i)the parties are within the prohibited degrees of relationship;

(ii)either party is under the age of sixteen; or

(iii)the parties have intermarried in disregard of certain requirements as to the formation of marriage);

(b)that at the time of the marriage either party was already lawfully married [F13or a civil partner]F13;

(c)that the parties are not respectively male and female;

(d)in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

For the purposes of paragraph (d) of this subsection a marriage [F14is not polygamous if] at its inception neither party has any spouse additional to the other.

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Amendments (Textual)

F11Words substituted by virtue of Marriage Act 1983 (c. 32, SIF 49:1), s. 12(1)

F14Words in s. 11 substituted (8.1.1996) by 1995 c. 42, ss. 8(2), 16(2), Sch. para. 2(2) (with s. 8(1)(3))

12 Grounds on which a marriage is voidable.E+W

A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say—

(a)that the marriage has not been consummated owing to the incapacity of either party to consummate it;

(b)that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;

(c)that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;

(d)that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of [F15the Mental Health Act 1983] of such a kind or to such an extent as to be unfitted for marriage;

(e)that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;

(f)that at the time of the marriage the respondent was pregnant by some person other than the petitioner.

[F16(g)that an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage;]

[F17F16(h)that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.F17]

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Amendments (Textual)

13 Bars to relief where marriage is voidable.E+W

(1)The court shall not, in proceedings instituted after 31st July 1971, grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court—

(a)that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and

(b)that it would be unjust to the respondent to grant the decree.

[F18(2)Without prejudice to subsection (1) above, the court shall not grant a decree of nullity by virtue of section 12 above on the grounds mentioned in paragraph (c), (d), (e) [F19, (f) or (h)]F19 of that section unless—

(a)it is satisfied that proceedings were instituted within the period of three years from the date of the marriage, or

(b)leave for the institution of proceedings after the expiration of that period has been granted under subsection (4) below.]

[F20(2A)Without prejudice to subsection (1) above, the court shall not grant a decree of nullity by virtue of section 12 above on the ground mentioned in paragraph (g) of that section unless it is satisfied that proceedings were instituted within the period of six months from the date of issue of the interim gender recognition certificate.]

F20(3)Without prejudice to subsections (1) and (2) above, the court shall not grant a decree of nullity by virtue of section 12 above on the grounds mentioned in paragraph (e) [F19, (f) or (h)]F19 of that section unless it is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged.

[F21(4)In the case of proceedings for the grant of a decree of nullity by virtue of section 12 above on the grounds mentioned in paragraph (c), (d), (e) [F19, (f) or (h)]F19 of that section, a judge of the court may, on an application made to him, grant leave for the institution of proceedings after the expiration of the period of three years from the date of the marriage if—

(a)he is satisfied that the petitioner has at some time during that period suffered from mental disorder within the meaning of the Mental Health Act 1983, and

(b)he considers that in all the circumstances of the case it would be just to grant leave for the institution of proceedings.

(5)An application for leave under subsection (4) above may be made after the expiration of the period of three years from the date of the marriage.]

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Amendments (Textual)

Modifications etc. (not altering text)

14 Marriages governed by foreign law or celebrated abroad under English law.E+W

(1)[F22Subject to subsection (3)]F22 where, apart from this Act, any matter affecting the validity of a marriage would fall to be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales, nothing in section 11, 12 or 13(1) above shall—

(a)preclude the determination of that matter as aforesaid; or

(b)require the application to the marriage of the grounds or bar there mentioned except so far as applicable in accordance with those rules.

(2)In the case of a marriage which purports to have been celebrated under the Foreign Marriage Acts 1892 to 1947 or has taken place outside England and Wales and purports to be a marriage under common law, section 11 above is without prejudice to any ground on which the marriage may be void under those Acts or, as the case may be, by virtue of the rules governing the celebration of marriages outside England and Wales under common law.

[F23(3)No marriage is to be treated as valid by virtue of subsection (1) if, at the time when it purports to have been celebrated, either party was already a civil partner.F23]

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Amendments (Textual)

15 Application of ss. 1(5), 8 and 9 to nullity proceedings.E+W

Sections 1(5), 8 and 9 above shall apply in relation to proceedings for nullity of marriage as if for any reference in those provisions to divorce there were substituted a reference to nullity of marriage.

Prospective

[F2415A Intervention of Queen’s Proctor.E+W

(1)In the case of a petition for nullity of marriage—

(a)the court may, if it thinks fit, direct all necessary papers in the matter to be sent to the Queen’s Proctor, who shall under the directions of the Attorney-General instruct counsel to argue before the court any question in relation to the matter which the court considers it necessary or expedient to have fully argued;

(b)any person may at any time during the progress of the proceedings or before the decree nisi is made absolute give information to the Queen’s Proctor on any matter material to the due decision of the case, and the Queen’s Proctor may thereupon take such steps as the Attorney-General considers necessary or expedient.

(2)If the Queen’s Proctor intervenes or shows cause against a decree nisi in any proceedings for nullity of marriage, the court may make such order as may be just as to the payment by other parties to the proceedings of the costs incurred by him in so doing or as to the payment by him of any costs incurred by any of those parties by reason of his so doing.

(3)Subsection (3) of section 8 above applies in relation to this section as it applies in relation to that section.]

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Amendments (Textual)

F24Ss. 15, 15A, 15B substituted ( prosp.) for s. 15 by 1996 c. 27, ss. 66(1), 67(3), Sch. 8 Pt. I para. 6 (with Sch. 9 para. 5)

Prospective

[F2515B Proceedings after decree nisi: general powers of court.E+W

(1)Where a decree of nullity of marriage has been granted under this Act but not made absolute, then, without prejudice to section 15A above, any person (excluding a party to the proceedings other than the Queen’s Proctor) may show cause why the decree should not be made absolute by reason of material facts not having been brought before the court; and in such a case the court may—

(a)notwithstanding anything in section 15 above (but subject to section 41 below) make the decree absolute; or

(b)rescind the decree; or

(c)require further inquiry; or

(d)otherwise deal with the case as it thinks fit.

(2)Where a decree of nullity of marriage has been granted under this Act and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned in paragraphs (a) to (d) of subsection (1) above.]

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Amendments (Textual)

F25Ss. 15, 15A, 15B substituted ( prosp.) for s. 15 by 1996 c. 27, ss. 66(1), 67(3), Sch. 8 Pt. I para. 6 (with Sch. 9 para. 5)

16 Effect of decree of nullity in case of voidable marriage.E+W

A decree of nullity granted after 31st July 1971 in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.

Other matrimonial suitsE+W

17 Judicial separation.E+W

(1)A petition for judicial separation may be presented to the court by either party to a marriage on the ground that any such fact as is mentioned in section 1(2) above exists, and the provisions of section 2 above shall apply accordingly for the purposes of a petition for judicial separation alleging any such fact, as they apply in relation to a petition for divorce alleging that fact.

(2)On a petition for judicial separation it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent, but the court shall not be concerned to consider whether the marriage has broken down irretrievably, and if it is satisfied on the evidence of any such fact as is mentioned in section 1(2) above it shall, subject to section 41 below, grant a decree of judicial separation.

(3)Sections 6 and 7 above shall apply for the purpose of encouraging the reconciliation of parties to proceedings for judicial separation and of enabling the parties to a marriage to refer to the court for its opinion an agreement or arrangement relevant to actual or contemplated proceedings for judicial separation, as they apply in relation to proceedings for divorce.

18 Effects of judicial separation.E+W

(1)Where the court grants a decree of judicial separation it shall no longer be obligatory for the petitioner to cohabit with the respondent.

(2)If while a decree of judicial separation is in force and the separation is continuing either of the parties to the marriage dies intestate as respects all or any of his or her real or personal property, the property as respects which he or she died intestate shall devolve as if the other party to the marriage had then been dead.

(3)Notwithstanding anything in section 2(1)(a) of the M4Matrimonial Proceedings (Magistrates’ Courts) Act 1960, a provision in force under an order made, or having effect as if made, under that section exempting one party to a marriage from the obligation to cohabit with the other shall not have effect as a decree of judicial separation for the purposes of subsection (2) above.

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Marginal Citations

19 Presumption of death and dissolution of marriage.E+W

(1)Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may, F26. . . present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved, and the court may, if satisfied that such reasonable grounds exist, grant a decree of presumption of death and dissolution of the marriage.

F27(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In any proceedings under this section the fact that for a period of seven years or more the other party to the marriage has been continually absent from the petitioner and the petitioner has no reason to believe that the other party has been living within that time shall be evidence that the other party is dead until the contrary is proved.

(4)Sections 1(5), 8 and 9 above shall apply to a petition and a decree under this section as they apply to a petition for divorce and a decree of divorce respectively.

F27(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)It is hereby declared that neither collusion nor any other conduct on the part of the petitioner which has at any time been a bar to relief in matrimonial proceedings constitutes a bar to the grant of a decree under this section.

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Amendments (Textual)

GeneralE+W

20 Relief for respondent in divorce proceedings.E+W

If in any proceedings for divorce the respondent alleges and proves any such fact as is mentioned in subsection (2) of section 1 above (treating the respondent as the petitioner and the petitioner as the respondent for the purposes of that subsection) the court may give to the respondent the relief to which he would have been entitled if he had presented a petition seeking that relief.

Part IIE+W Financial Relief for Parties to Marriage and Children of Family

Financial provision and property adjustment ordersE+W

21 Financial provision and property adjustment orders.E+W

(1)The financial provision orders for the purposes of this Act are the orders for periodical or lump sum provision available (subject to the provisions of this Act) under section 23 below for the purpose of adjusting the financial position of the parties to a marriage and any children of the family in connection with proceedings for divorce, nullity of marriage or judicial separation and under section 27(6) below on proof of neglect by one party to a marriage to provide, or to make a proper contribution towards, reasonable maintenance for the other or a child of the family, that is to say—

(a)any order for periodical payments in favour of a party to a marriage under section 23(1)(a) or 27(6)(a) or in favour of a child of the family under section 23(1)(d), (2) or (4) or 27(6)(d);

(b)any order for secured periodical payments in favour of a party to a marriage under section 23(1)(b) or 27(6)(b) or in favour of a child of the family under section 23(1)(e), (2) or (4) or 27(6)(e); and

(c)any order for lump sum provision in favour of a party to a marriage under section 23(1)(c) or 27(6)(c) or in favour of a child of the family under section 23(1)(f), (2) or (4) or 27(6)(f);

and references in this Act (except in paragraphs 17(1) and 23 of Schedule 1 below) to periodical payments orders, secured periodical payments orders, and orders for the payment of a lump sum are references to all or some of the financial provision orders requiring the sort of financial provision in question according as the context of each reference may require.

(2)The property adjustment orders for the purposes of this Act are the orders dealing with property rights available (subject to the provisions of this Act) under section 24 below for the purpose of adjusting the financial position of the parties to a marriage and any children of the family on or after the grant of a decree of divorce, nullity of marriage or judicial separation, that is to say—

(a)any order under subsection (1)(a) of that section for a transfer of property;

(b)any order under subsection (1)(b) of that section for a settlement of property; and

(c)any order under subsection (1)(c) or (d) of that section for a variation of settlement.

[F2821A Pension sharing orders.E+W

(1)For the purposes of this Act, a pension sharing order is an order which—

(a)provides that one party’s—

(i)shareable rights under a specified pension arrangement, or

(ii)shareable state scheme rights,

be subject to pension sharing for the benefit of the other party, and

(b)specifies the percentage value to be transferred.

(2)In subsection (1) above—

(a)the reference to shareable rights under a pension arrangement is to rights in relation to which pension sharing is available under Chapter I of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation,

(b)the reference to shareable state scheme rights is to rights in relation to which pension sharing is available under Chapter II of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation, and

(c)party” means a party to a marriage.]

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Amendments (Textual)

F28S. 21A and sidenote inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 2; S.I. 2000/1116, art. 2

Modifications etc. (not altering text)

Prospective

[F2921BPension compensation sharing ordersE+W
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Amendments (Textual)

(1)For the purposes of this Act, a pension compensation sharing order is an order which—

(a)provides that one party's shareable rights to PPF compensation that derive from rights under a specified pension scheme are to be subject to pension compensation sharing for the benefit of the other party, and

(b)specifies the percentage value to be transferred.

(2)In subsection (1)—

(a)the reference to shareable rights to PPF compensation is to rights in relation to which pension compensation sharing is available under Chapter 1 of Part 3 of the Pensions Act 2008 or under corresponding Northern Ireland legislation;

(b)party” means a party to a marriage;

(c)specified” means specified in the order.

Prospective

21CPension compensation: interpretationE+W

In this Part—

  • PPF compensation” means compensation payable under the pension compensation provisions;

  • the pension compensation provisions” means—

    (a)

    Chapter 3 of Part 2 of the Pensions Act 2004 (pension protection) and any regulations or order made under it,

    (b)

    Chapter 1 of Part 3 of the Pensions Act 2008 (pension compensation on divorce etc) and any regulations or order made under it, and

    (c)

    any provision corresponding to the provisions mentioned in paragraph (a) or (b) in force in Northern Ireland.]

Ancillary relief in connection with divorce proceedings, etc.E+W

22 Maintenance pending suit.E+W

On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable.

Prospective

[F3022A Financial provision orders: divorce and separation.E+W
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Amendments (Textual)

F30S. 22A inserted (with saving) (prosp.) by 1996 c. 27, ss. 15, 67(3), Sch. 2 para. 3

(1)On an application made under this section, the court may at the appropriate time make one or more financial provision orders in favour of—

(a)a party to the marriage to which the application relates; or

(b)any of the children of the family.

(2)The “appropriate time” is any time—

(a)after a statement of marital breakdown has been received by the court and before any application for a divorce order or for a separation order is made to the court by reference to that statement;

(b)when an application for a divorce order or separation order has been made under section 3 of the 1996 Act and has not been withdrawn;

(c)when an application for a divorce order has been made under section 4 of the 1996 Act and has not been withdrawn;

(d)after a divorce order has been made;

(e)when a separation order is in force.

(3)The court may make—

(a)a combined order against the parties on one occasion,

(b)separate orders on different occasions,

(c)different orders in favour of different children,

(d)different orders from time to time in favour of the same child,

but may not make, in favour of the same party, more than one periodical payments order, or more than one order for payment of a lump sum, in relation to any marital proceedings, whether in the course of the proceedings or by reference to a divorce order or separation order made in the proceedings.

(4)If it would not otherwise be in a position to make a financial provision order in favour of a party or child of the family, the court may make an interim periodical payments order, an interim order for the payment of a lump sum or a series of such orders, in favour of that party or child.

(5)Any order for the payment of a lump sum made under this section may—

(a)provide for the payment of the lump sum by instalments of such amounts as may be specified in the order; and

(b)require the payment of the instalments to be secured to the satisfaction of the court.

(6)Nothing in subsection (5) above affects—

(a)the power of the court under this section to make an order for the payment of a lump sum; or

(b)the provisions of this Part of this Act as to the beginning of the term specified in any periodical payments order or secured periodical payments order.

(7)Subsection (8) below applies where the court—

(a)makes an order under this section (“the main order”) for the payment of a lump sum; and

(b)directs—

(i)that payment of that sum, or any part of it, is to be deferred; or

(ii)that that sum, or any part of it, is to be paid by instalments.

(8)In such a case, the court may, on or at any time after making the main order, make an order (“the order for interest”) for the amount deferred, or the instalments, to carry interest (at such rate as may be specified in the order for interest)—

(a)from such date, not earlier than the date of the main order, as may be so specified;

(b)until the date when the payment is due.

(9)This section is to be read subject to any restrictions imposed by this Act and to section 19 of the 1996 Act.]

Prospective

[F3122B Restrictions affecting section 22A.E+W

(1)No financial provision order, other than an interim order, may be made under section 22A above so as to take effect before the making of a divorce order or separation order in relation to the marriage, unless the court is satisfied—

(a)that the circumstances of the case are exceptional; and

(b)that it would be just and reasonable for the order to be so made.

(2)Except in the case of an interim periodical payments order, the court may not make a financial provision order under section 22A above at any time while the period for reflection and consideration is interrupted under section 7(8) of the 1996 Act.

(3)No financial provision order may be made under section 22A above by reference to the making of a statement of marital breakdown if, by virtue of section 5(3) or 7(9) of the 1996 Act (lapse of divorce or separation process), it has ceased to be possible—

(a)for an application to be made by reference to that statement; or

(b)for an order to be made on such an application.

(4)No financial provision order may be made under section 22A after a divorce order has been made, or while a separation order is in force, except—

(a)in response to an application made before the divorce order or separation order was made; or

(b)on a subsequent application made with the leave of the court.

(5)In this section, “period for reflection and consideration” means the period fixed by section 7 of the 1996 Act.]

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Amendments (Textual)

F31S. 22B inserted (with saving) (prosp.) by 1996 c. 27, ss. 15, 67(3), Sch. 2 para. 3

23 Financial provision orders in connection with divorce proceedings, etc.E+W

(1)On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say—

(a)an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order;

(b)an order that either party to the marriage shall secure to the other to the satisfaction of the court such periodical payments, for such term, as may be so specified;

(c)an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified;

(d)an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified;

(e)an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified;

(f)an order that a party to the marriage shall pay to such person as may be so specified for the benefit of such a child, or to such a child, such lump sum as may be so specified;

subject, however, in the case of an order under paragraph (d), (e) or (f) above, to the restrictions imposed by section 29(1) and (3) below on the making of financial provision orders in favour of children who have attained the age of eighteen.

(2)The court may also, subject to those restrictions, make any one or more of the orders mentioned in subsection (1)(d), (e) and (f) above—

(a)in any proceedings for divorce, nullity of marriage or judicial separation, before granting a decree; and

(b)where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal.

(3)Without prejudice to the generality of subsection (1)(c) or (f) above—

(a)an order under this section that a party to a marriage shall pay a lump sum to the other party may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section in his or her favour;

(b)an order under this section for the payment of a lump sum to or for the benefit of a child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section in his favour to be met; and

(c)an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.

(4)The power of the court under subsection (1) or (2)(a) above to make an order in favour of a child of the family shall be exercisable from time to time; and where the court makes an order in favour of a child under subsection (2)(b) above, it may from time to time, subject to the restrictions mentioned in subsection (1) above, make a further order in his favour of any of the kinds mentioned in subsection (1)(d), (e)or (f) above.

(5)Without prejudice to the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel, where an order is made under subsection (1)(a), (b) or (c) above on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute.

[F32(6)Where the court—

(a)makes an order under this section for the payment of a lump sum; and

(b)directs—

(i)that payment of that sum or any part of it shall be deferred; or

(ii)that that sum or any part of it shall be paid by instalments,

the court may order that the amount deferred or the instalments shall carry interest at such rate as may be specified by the order from such date, not earlier than the date of the order, as may be so specified, until the date when payment of it is due.]

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Amendments (Textual)

Modifications etc. (not altering text)

Prospective

[F3323A Property adjustment orders: divorce and separation.E+W

(1)On an application made under this section, the court may, at any time mentioned in section 22A(2) above, make one or more property adjustment orders.

(2)If the court makes, in favour of the same party to the marriage, more than one property adjustment order in relation to any marital proceedings, whether in the course of the proceedings or by reference to a divorce order or separation order made in the proceedings, each order must fall within a different paragraph of section 21(2) above.

(3)The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more property adjustment orders in relation to the marriage as it thinks fit.

(4)Subsection (3) above does not affect section 31 or 31A below.

(5)This section is to be read subject to any restrictions imposed by this Act and to section 19 of the 1996 Act.]

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Amendments (Textual)

F33S. 23A inserted (with saving) (prosp.) by 1996 c. 27, ss. 15, 67(3), Sch. 2 para. 5

Modifications etc. (not altering text)

Prospective

[F3423B Restrictions affecting section 23A.E+W

(1)No property adjustment order may be made under section 23A above so as to take effect before the making of a divorce order or separation order in relation to the marriage unless the court is satisfied—

(a)that the circumstances of the case are exceptional; and

(b)that it would be just and reasonable for the order to be so made.

(2)The court may not make a property adjustment order under section 23A above at any time while the period for reflection and consideration is interrupted under section 7(8) of the 1996 Act.

(3)No property adjustment order may be made under section 23A above by virtue of the making of a statement of marital breakdown if, by virtue of section 5(3) or 7(5) of the 1996 Act (lapse of divorce or separation process), it has ceased to be possible—

(a)for an application to be made by reference to that statement; or

(b)for an order to be made on such an application.

(4)No property adjustment order may be made under section 23A above after a divorce order has been made, or while a separation order is in force, except—

(a)in response to an application made before the divorce order or separation order was made; or

(b)on a subsequent application made with the leave of the court.

(5)In this section, “period for reflection and consideration” means the period fixed by section 7 of the 1996 Act.]

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Amendments (Textual)

F34S. 23B inserted (with saving) (prosp.) by 1996 c. 27, ss. 15, 67(3), Sch. 2 para. 5

24 Property adjustment orders in connection with divorce proceedings, etc.E+W

(1)On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say—

(a)an order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion;

(b)an order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, be made to the satisfaction of the court for the benefit of the other party to the marriage and of the children of the family or either or any of them;

(c)an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage [F35,other than one in the form of a pension arrangement (within the meaning of section 25D below)];

(d)an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement [F35, other than one in the form of a pension arrangement (within the meaning of section 25D below)];

subject, however, in the case of an order under paragraph (a) above, to the restrictions imposed by section 29(1) and (3) below on the making of orders for a transfer of property in favour of children who have attained the age of eighteen.

(2)The court may make an order under subsection (1)(c) above notwithstanding that there are no children of the family.

(3)Without prejudice to the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel, where an order is made under this section on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute.

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Amendments (Textual)

F35Words in s. 24(1)(c)(d) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 3; S.I. 2000/1116, art. 2

[F3624A Orders for sale of propertyE+W

(1)Where the court makes under section 23 or 24 of this Act a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then, on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion.

(2)Any order made under subsection (1) above may contain such consequential or supplementary provisions as the court thinks fit and, without prejudice to the generality of the foregoing provision, may include—

(a)provision requiring the making of a payment out of the proceeds of sale of the property to which the order relates, and

(b)provision requiring any such property to be offered for sale to a person, or class of persons, specified in the order.

(3)Where an order is made under subsection (1) above on or after the grant of a decree of divorce or nullity of marriage, the order shall not take effect unless the decree has been made absolute.

(4)Where an order is made under subsection (1) above, the court may direct that the order, or such provision thereof as the court may specify, shall not take effect until the occurrence of an event specified by the court or the expiration of a period so specified.

(5)Where an order under subsection (1) above contains a provision requiring the proceeds of sale of the property to which the order relates to be used to secure periodical payments to a party to the marriage, the order shall cease to have effect on the death or re-marriage of [F37, or formation of a civil partnership by,]F37 that person.

[F38(6)Where a party to a marriage has a beneficial interest in any property, or in the proceeds of sale thereof, and some other person who is not a party to the marriage also has a beneficial interest in that property or in the proceeds of sale thereof, then, before deciding whether to make an order under this section in relation to that property, it shall be the duty of the court to give that other person an opportunity to make representations with respect to the order; and any representations made by that other person shall be included among the circumstances to which the court is required to have regard under section 25(1) below.]]

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Amendments (Textual)

Modifications etc. (not altering text)

[24BF39Pension sharing orders in connection with divorce proceedings etc.E+W

(1)On granting a decree of divorce or a decree of nullity of marriage or at any time thereafter (whether before or after the decree is made absolute), the court may, on an application made under this section, make one or more pension sharing orders in relation to the marriage.

(2)A pension sharing order under this section is not to take effect unless the decree on or after which it is made has been made absolute.

(3)A pension sharing order under this section may not be made in relation to a pension arrangement which—

(a)is the subject of a pension sharing order in relation to the marriage, or

(b)has been the subject of pension sharing between the parties to the marriage.

(4)A pension sharing order under this section may not be made in relation to shareable state scheme rights if—

(a)such rights are the subject of a pension sharing order in relation to the marriage, or

(b)such rights have been the subject of pension sharing between the parties to the marriage.

(5)A pension sharing order under this section may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement.]

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Amendments (Textual)

F39S. 24B and sidenote inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 4; S.I. 2000/1116, art. 2

Prospective

[F4024BA Restrictions affecting section 24B.E+W
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Amendments (Textual)

F40Ss. 24B - 24BC and sidenotes substituted for s. 24B (with saving) (prosp.) by 1996 c. 27, ss. 15, 67(3), Sch. 2 para. 6A (as inserted (1.12.2000) by 1999 c. 30, s. 84(1), Sch. 12 Pt. I para. 65(1)(9)); S.I. 2000/1116, art. 2

(1)No pension sharing order may be made under section 24B above so as to take effect before the making of a divorce order in relation to the marriage.

(2)The court may not make a pension sharing order under section 24B above at any time while the period for reflection and consideration is interrupted under section 7(8) of the 1996 Act.

(3)No pension sharing order may be made under section 24B above by virtue of a statement of marital breakdown if, by virtue of section 5(3) or 7(9) of the 1996 Act (lapse of divorce process), it has ceased to be possible—

(a)for an application to be made by reference to that statement, or

(b)for an order to be made on such an application.

(4)No pension sharing order may be made under section 24B above after a divorce order has been made, except—

(a)in response to an application made before the divorce order was made, or

(b)on a subsequent application made with the leave of the court.

(5)A pension sharing order under section 24B above may not be made in relation to a pension arrangement which—

(a)is the subject of a pension sharing order in relation to the marriage, or

(b)has been the subject of pension sharing between the parties to the marriage.

(6)A pension sharing order under section 24B above may not be made in relation to shareable state scheme rights if—

(a)such rights are the subject of a pension sharing order in relation to the marriage, or

(b)such rights have been the subject of pension sharing between the parties to the marriage.

(7)A pension sharing order under section 24B above may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement.

(8)In this section, “period for reflection and consideration” means the period fixed by section 7 of the 1996 Act.]

Prospective

[F4124BB Pension sharing orders: nullity of marriage.E+W

(1)On or after granting a decree of nullity of marriage (whether before or after the decree is made absolute), the court may, on an application made under this section, make one or more pension sharing orders in relation to the marriage.

(2)The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more pension sharing orders in relation to the marriage as it thinks fit.

(3)Where a pension sharing order is made under this section on or after the granting of a decree of nullity of marriage, the order is not to take effect unless the decree has been made absolute.

(4)This section is to be read subject to any restrictions imposed by this Act.]

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Amendments (Textual)

F41Ss. 24B - 24BC and sidenotes substituted for s. 24B (with saving) (prosp.) by 1996 c. 27, ss. 15, 67(3), Sch. 2 para. 6A (as inserted (1.12.2000) by 1999 c. 30, s. 84(1), Sch. 12 Pt. I para. 65(1)(9)); S.I. 2000/1116, art. 2

Prospective

[F4224BC Restrictions affecting section 24BB.E+W

(1)A pension sharing order under section 24BB above may not be made in relation to a pension arrangement which—

(a)is the subject of a pension sharing order in relation to the marriage, or

(b)has been the subject of pension sharing between the parties to the marriage.

(2)A pension sharing order under section 24BB above may not be made in relation to shareable state scheme rights if—

(a)such rights are the subject of a pension sharing order in relation to the marriage, or

(b)such rights have been the subject of pension sharing between the parties to the marriage.

(3)A pension sharing order under section 24BB above may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement. ”]

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Amendments (Textual)

F42Ss. 24B - 24BC and sidenotes substituted for s. 24B (with saving) (prosp.) by 1996 c. 27, ss. 15, 67(3), Sch. 2 para. 6A (as inserted (1.12.2000) by 1999 c. 30, s. 84(1), Sch. 12 Pt. I para. 65(1)(9)); S.I. 2000/1116, art. 2

[F4324C Pension sharing orders: duty to stay.E+W

(1)No pension sharing order may be made so as to take effect before the end of such period after the making of the order as may be prescribed by regulations made by the Lord Chancellor.

(2)The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

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Amendments (Textual)

F43S. 24C and sidenote inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 4; S.I. 2000/1116, art. 2

[F4424D Pension sharing orders: apportionment of charges.E+W

If a pension sharing order relates to rights under a pension arrangement, the court may include in the order provision about the apportionment between the parties of any charge under section 41 of the Welfare Reform and Pensions Act 1999 (charges in respect of pension sharing costs), or under corresponding Northern Ireland legislation.]

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Amendments (Textual)

F44S. 24D and sidenote inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 4; S.I. 2000/1116, art. 2

Prospective

[F4524EPension compensation sharing orders in connection with divorce proceedingsE+W
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Amendments (Textual)

(1)On granting a decree of divorce or a decree of nullity of marriage or at any time thereafter (whether before or after the decree is made absolute), the court may, on an application made under this section, make a pension compensation sharing order in relation to the marriage.

(2)A pension compensation sharing order under this section is not to take effect unless the decree on or after which it is made has been made absolute.

(3)A pension compensation sharing order under this section may not be made in relation to rights to PPF compensation that—

(a)are the subject of pension attachment,

(b)derive from rights under a pension scheme that were the subject of pension sharing between the parties to the marriage,

(c)are the subject of pension compensation attachment, or

(d)are or have been the subject of pension compensation sharing between the parties to the marriage.

(4)For the purposes of subsection (3)(a), rights to PPF compensation “are the subject of pension attachment” if any of the following three conditions is met.

(5)The first condition is that—

(a)the rights derive from rights under a pension scheme in relation to which an order was made under section 23 imposing a requirement by virtue of section 25B(4), and

(b)that order, as modified under section 25E(3), remains in force.

(6)The second condition is that—

(a)the rights derive from rights under a pension scheme in relation to which an order was made under section 23 imposing a requirement by virtue of section 25B(7), and

(b)that order—

(i)has been complied with, or

(ii)has not been complied with and, as modified under section 25E(5), remains in force.

(7)The third condition is that—

(a)the rights derive from rights under a pension scheme in relation to which an order was made under section 23 imposing a requirement by virtue of section 25C, and

(b)that order remains in force.

(8)For the purposes of subsection (3)(b), rights under a pension scheme “were the subject of pension sharing between the parties to the marriage” if the rights were at any time the subject of a pension sharing order in relation to the marriage or a previous marriage between the same parties.

(9)For the purposes of subsection (3)(c), rights to PPF compensation “are the subject of pension compensation attachment” if there is in force a requirement imposed by virtue of section 25F relating to them.

(10)For the purposes of subsection (3)(d), rights to PPF compensation “are or have been the subject of pension compensation sharing between the parties to the marriage” if they are or have ever been the subject of a pension compensation sharing order in relation to the marriage or a previous marriage between the same parties.

Prospective

24FPension compensation sharing orders: duty to stayE+W

(1)No pension compensation sharing order may be made so as to take effect before the end of such period after the making of the order as may be prescribed by regulations made by the Lord Chancellor.

(2)The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Prospective

24GPension compensation sharing orders: apportionment of chargesE+W

The court may include in a pension compensation sharing order provision about the apportionment between the parties of any charge under section 117 of the Pensions Act 2008 (charges in respect of pension compensation sharing costs), or under corresponding Northern Ireland legislation.]

[F4625 Matters to which court is to have regard in deciding how to exercise its powers under ss. 23, 24 and 24A.E+W
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Amendments (Textual)

(1)It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 [F47, 24A or 24B] above and, if so, in what manner, to 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 eighteen.

(2)As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24 [F48, 24A or 24B]above in relation to a party to the marriage, the court shall in particular have regard to the following matters—

(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or 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 a party to the marriage to take steps to acquire;

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

(c)the standard of living enjoyed by the family before the breakdown of the marriage;

(d)the age of each party to the marriage and the duration of the marriage;

(e)any physical or mental disability of either of the parties to the marriage;

(f)the contributions which each of the parties 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 of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h)in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit F49. . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

(3)As regards the exercise of the powers of the court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above in relation to a child of the family, the court shall in particular have regard to the following matters—

(a)the financial needs of the child;

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

(c)any physical or mental disability of the child;

(d)the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;

(e)the considerations mentioned in relation to the parties to the marriage in paragraphs (a), (b), (c) and (e) of subsection (2) above.

(4)As regards the exercise of the powers of the court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard—

(a)to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;

(b)to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;

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

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Amendments (Textual)

F47Words in s. 25(1) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 5(a); S.I. 2000/1116, art. 2

F48Words in s. 25(2) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 5(b); S.I. 2000/1116, art. 2

F49Words in s. 25(2)(h) omitted (1.8.1996) by virtue of 1995 c. 26, s. 166(2); S.I. 1996/1675, art. 3(b)

[F5025A Exercise of court’s powers in favour of party to marriage on decree of divorce or nullity of marriage.E+W

(1)Where on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24 or [F51, 24A or 24B]above in favour of a party to the marriage, it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.

(2)Where the court decides in such a case to make a periodical payments or secured periodical payments order in favour of a party to the marriage, the court shall in particular consider whether it would be appropriate to require those payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.

(3)Where on or after the grant of a decree of divorce or nullity of marriage an application is made by a party to the marriage for a periodical payments or secured periodical payments order in his or her favour, then, if the court considers that no continuing obligation should be imposed on either party to make or secure periodical payments in favour of the other, the court may dismiss the application with a direction that the applicant shall not be entitled to make any further application in relation to that marriage for an order under section 23(1)(a) or (b) above.]

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Amendments (Textual)

F51Words in s. 25A(1) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, ss. 19, 89, Sch. 3 para. 6; S.I. 2000/1116, art. 2

[F5225B Pensions.E+W

(1)The matters to which the court is to have regard under section 25(2) above include—

(a)in the case of paragraph (a), any benefits under a pension [F53arrangement] which a party to the marriage has or is likely to have, and

(b)in the case of paragraph (h), any benefits under a pension [F53arrangement] which, by reason of the dissolution or annulment of the marriage, a party to the marriage will lose the chance of acquiring,

and, accordingly, in relation to benefits under a pension [F53arrangement], section 25(2)(a) above shall have effect as if “in the foreseeable future” were omitted.

[F54(2)In any proceedings for a financial provision order under section 23 above in a case where a party to the marriage has, or is likely to have, any benefit under a pension scheme, the court shall, in addition to considering any other matter which it is required to consider apart from this subsection, consider—

(a)whether, having regard to any matter to which it is required to have regard in the proceedings by virtue of subsection (1) above, such an order (whether deferred or not) should be made, and

(b)where the court determines to make such an order, how the terms of the order should be affected, having regard to any such matter.]

(3)The following provisions apply where, having regard to any benefits under a pension [F55arrangement], the court determines to make an order under section 23 above.

(4)To the extent to which the order is made having regard to any benefits under a pension [F56arrangement], the order may require the [F57person responsible for] the pension [F56arrangement] in question, if at any time any payment in respect of any benefits under the [F56arrangement] becomes due to the party with pension rights, to make a payment for the benefit of the other party.

[F58(5)The order must express the amount of any payment required to be made by virtue of subsection (4) above as a percentage of the payment which becomes due to the party with pension rights.]

(6)Any such payment by the [F59person responsible for the arrangement]

(a)shall discharge so much of [F60his] liability to the party with pension rights as corresponds to the amount of the payment, and

(b)shall be treated for all purposes as a payment made by the party with pension rights in or towards the discharge of his liability under the order.

(7)Where the party with pension rights [F61has a right of commutation under the arrangement, the order may require him to exercise it to any extent]; and this section applies to the [F62any payment due in consequence of commutation] in pursuance of the order as it applies to other payments in respect of benefits under the [F63arrangement].

[F64(7A)The power conferred by subsection (7) above may not be exercised for the purpose of commuting a benefit payable to the party with pension rights to a benefit payable to the other party.

(7B)The power conferred by subsection (4) or (7) above may not be exercised in relation to a pension arrangement which—

(a)is the subject of a pension sharing order in relation to the marriage, or

(b)has been the subject of pension sharing between the parties to the marriage.

(7C)In subsection (1) above, references to benefits under a pension arrangement include any benefits by way of pension, whether under a pension arrangement or not.]]

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Amendments (Textual)

F52S. 25B inserted (1.8.1996 with effect as mentioned in S.I. 1996/1675, art. 4) by 1995 c. 26, s. 166(1); S.I. 1996/1675, art. 3(b)

F53Words in s. 25B(1)(a)(b) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(2); S.I. 2000/1116, art. 2

F54S. 25B(2) repealed (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, 88, Sch. 4 para. 1(1)(3), Sch. 13 Pt. II; S.I. 2000/1116, art. 2

F55Word in s. 25B(3) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(4); S.I. 2000/1116, art. 2

F56Words in s. 25B(4) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(5)(a); S.I. 2000/1116, art. 2

F57Words in s. 25B(4) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(5)(b); S.I. 2000/1116, art. 2

F58S. 25B(5) substituted (11.11.1999 for certain puropses and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(6); S.I. 2000/1116, art. 2

F59Words in s. 25B(6) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(7)(a); S.I. 2000/1116, art. 2

F60Words in s. 25B(6)(a) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(7)(b); S.I. 2000/1116, art. 2

F61Words in s. 25B(7) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(8)(a); S.I. 2000/1116, art. 2

F62Words in s. 25B(7) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(8)(b); S.I. 2000/1116, art. 2

F63Words in s. 25B(7) substituted (11.11.1999 for certain purposes and otherwiseprosp.) by 1999 c. 30, ss. 21, 89(2)(a)(5), Sch. 4 para. 1(1)(8)(c)

F64S. 25B(7A)-(7C) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 1(1)(9); S.I. 2000/1116, art. 2

Modifications etc. (not altering text)

[F6525C Pensions: lump sums.E+W

(1)The power of the court under section 23 above to order a party to a marriage to pay a lump sum to the other party includes, where the benefits which the party with pension rights has or is likely to have under a pension [F66arrangement] include any lump sum payable in respect of his death, power to make any of the following provision by the order.

(2)The court may—

(a)if the [F67person responsible for the pension arrangement in question has] power to determine the person to whom the sum, or any part of it, is to be paid, require [F68him]to pay the whole or part of that sum, when it becomes due, to the other party,

(b)if the party with pension rights has power to nominate the person to whom the sum, or any part of it, is to be paid, require the party with pension rights to nominate the other party in respect of the whole or part of that sum,

(c)in any other case, require the [F69person responsible for the pension arrangement] in question to pay the whole or part of that sum, when it becomes due, for the benefit of the other party instead of to the person to whom, apart from the order, it would be paid.

(3)Any payment by the [F70person responsible for the arrangement] under an order made under section 23 above by virtue of this section shall discharge so much of [F71his] liability in respect of the party with pension rights as corresponds to the amount of the payment.

[F72(4)The powers conferred by this section may not be exercised in relation to a pension arrangement which—

(a)is the subject of a pension sharing order in relation to the marriage, or

(b)has been the subject of pension sharing between the parties to the marriage.]]

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Amendments (Textual)

F65S. 25C inserted (1.8.1996 with effect as mentioned in S.I. 1996/1675) by 1995 c. 26, s. 166(1); S.I. 1996/1675, art. 3(b)

F66Word in s. 25C(1) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 2(1)(2); S.I. 2000/1116, art. 2

F67Words in s. 25C(2)(a) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 2(1)(3)(a)(i); S.I. 2000/1116, art. 2

F68Word in s. 25C(2)(a) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 2(1)(3)(a)(ii); S.I. 2000/1116, art. 2

F69Words in s. 25C(2)(c) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 2(1)(3)(b); S.I. 2000/1116, art. 2

F70Words in s. 25C(3) substituted (11.11.1999 for certain puurposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 2(1)(4)(a); S.I. 2000/1116, art. 2

F71Words in s. 25C(3) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 2(4)(b); S.I. 2000/1116, art. 2

F72S. 25C(4) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 2(5); S.I. 2000/1116, art. 2

[F7325D Pensions: supplementary.E+W

[F74(1)Where—

(a)an order made under section 23 above by virtue of section 25B or 25C above imposes any requirement on the person responsible for a pension arrangement (“the first arrangement”) and the party with pension rights acquires rights under another pension arrangement (“the new arrangement”) which are derived (directly or indirectly) from the whole of his rights under the first arrangement, and

(b)the person responsible for the new arrangement has been given notice in accordance with regulations made by the Lord Chancellor,

the order shall have effect as if it had been made instead in respect of the person responsible for the new arrangement.]

(2)[F75The Lord Chancellor may by regulations]

(a)in relation to any provision of sections 25B or 25C above which authorises the court making an order under section 23 above to require the [F76person responsible for a pension arrangement] to make a payment for the benefit of the other party, make provision as to the person to whom, and the terms on which, the payment is to be made,

[F77(ab)make, in relation to payment under a mistaken belief as to the continuation in force of a provision included by virtue of section 25B or 25C above in an order under section 23 above, provision about the rights or liabilities of the payer, the payee or the person to whom the payment was due,]

(b)require notices to be given in respect of changes of circumstances relevant to such orders which include provision made by virtue of sections 25B and 25C above,

[F78(ba)make provision for the person responsible for a pension arrangement to be discharged in prescribed circumstances from a requirement imposed by virtue of section 25B or 25C above,]

[F79(c)make provision for the trustees or managers of any pension scheme to provide, for the purposes of orders under section 23 above, information as to the value of any benefits under the scheme,]

[F79(d)make provision for the recovery of the administrative expenses of—

(i)complying with such orders, so far as they include provision made by virtue of sections 25B and 25C above, and

(ii)providing such information,

from the party with pension rights or the other party,]

[F80(e)make provision about calculation and verification in relation to the valuation of—

(i)benefits under a pension arrangement, or

(ii)shareable state scheme rights,

for the purposes of the court’s functions in connection with the exercise of any of its powers under this Part of this Act.]

[F81and regulations made by virtue of paragraph (e) above may provide for that value to be calculated and verified in accordance with guidance which is prepared and from time to time revised by a prescribed person and approved by the Secretary of State.]

[F82(2A)Regulations under subsection (2)(e) above may include—

(a)provision for calculation or verification in accordance with guidance from time to time prepared by a prescribed person, and

(b)provision by reference to regulations under section 30 or 49(4) of the Welfare Reform and Pensions Act 1999.

(2B)Regulations under subsection (2) above may make different provision for different cases.

(2C)Power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

[F83(3)In this section and sections 25B and 25C above—

  • occupational pension scheme” has the same meaning as in the M5Pension Schemes Act 1993;

  • the party with pension rights” means the party to the marriage who has or is likely to have benefits under a pension arrangement and “the other party” means the other party to the marriage;

  • pension arrangement” means—

    (a)

    an occupational pension scheme,

    (b)

    a personal pension scheme,

    (c)

    a retirement annuity contract,

    (d)

    an annuity or insurance policy purchased, or transferred, for the purpose of giving effect to rights under an occupational pension scheme or a personal pension scheme, and

    (e)

    an annuity purchased, or entered into, for the purpose of discharging liability in respect of a pension credit under section 29(1)(b) of the Welfare Reform and Pensions Act 1999 or under corresponding Northern Ireland legislation;

  • personal pension scheme” has the same meaning as in the Pension Schemes Act 1993;

  • prescribed” means prescribed by regulations;

  • retirement annuity contract” means a contract or scheme approved under Chapter III of Part XIV of the M6Income and Corporation Taxes Act 1988;

  • shareable state scheme rights” has the same meaning as in section 21A(1) above; and

  • trustees or managers”, in relation to an occupational pension scheme or a personal pension scheme, means—

    (a)

    in the case of a scheme established under a trust, the trustees of the scheme, and

    (b)

    in any other case, the managers of the scheme.

(4)In this section and sections 25B and 25C above, references to the person responsible for a pension arrangement are—

(a)in the case of an occupational pension scheme or a personal pension scheme, to the trustees or managers of the scheme,

(b)in the case of a retirement annuity contract or an annuity falling within paragraph (d) or (e) of the definition of “pension arrangement” above, the provider of the annuity, and

(c)in the case of an insurance policy falling within paragraph (d) of the definition of that expression, the insurer.]]

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Amendments (Textual)

F73S. 25D inserted (27.6.1996 in relation to the insertion of s. 25D(2)(3)(4) and 1.8.1996 otherwise) by 1995 c. 26, s. 166(1); S.I. 1995/1675, art. 3

F74S. 25D(1) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 3(1)(2); S.I. 2000/1116, art. 2

F75Words in s. 25D(2) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 3(1)(3)(a); S.I. 2000/1116, art. 2

F76Words in s. 25D(2)(a) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 3(1)(3)(b); S.I. 2000/1116, art. 2

F77S. 25D(2)(ab) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 3(1)(3)(c); S.I. 2000/1116, art. 2

F78S. 25D(2)(ba) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 3(1)(3)(d); S.I. 2000/1116, art. 2

F79S. 25D(2)(c)(d) repealed (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, ss. 21, 88, Sch. 4 para. 3(1)(3)(e), Sch. 13 Pt. II; S.I. 2000/1116, art. 2

F80S. 25D(2)(e) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 3(1)(3)(f); S.I. 2000/1116, art. 2

F81Words in s. 25D(2) repealed (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, ss. 21, 88, Sch. 4 para. 3(1)(3)(g), Sch. 13 Pt. II; S.I. 2000/1116, art. 2

F82S. 25D(2A)-(2C) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 3(1)(4); S.I. 2000/1116, art. 2

F83S. 25D(3)(4) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 21, Sch. 4 para. 3(1)(5); S.I. 2000/1116, art. 2

Modifications etc. (not altering text)

C8S. 25D(1) applied (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1984 c. 42, s. 21(3) (as amended (1.12.2000) by 1999 c. 30, s. 22(5)); S.I. 2000/1116, art. 2

Marginal Citations

[F8425EThe Pension Protection FundE+W
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Amendments (Textual)

(1)The matters to which the court is to have regard under section 25(2) include—

(a)in the case of paragraph (a), any PPF compensation to which a party to the marriage is or is likely to be entitled, and

(b)in the case of paragraph (h), any PPF compensation which, by reason of the dissolution or annulment of the marriage, a party to the marriage will lose the chance of acquiring entitlement to,

and, accordingly, in relation to PPF compensation, section 25(2)(a) shall have effect as if “in the foreseeable future” were omitted.

(2)Subsection (3) applies in relation to an order under section 23 so far as it includes provision made by virtue of section 25B(4) which—

(a)imposed requirements on the trustees or managers of an occupational pension scheme for which the Board has assumed responsibility in accordance with Chapter 3 of Part 2 of the Pensions Act 2004 (pension protection) or any provision in force in Northern Ireland corresponding to that Chapter, and

(b)was made before the trustees or managers of the scheme received the transfer notice in relation to the scheme.

(3)The order is to have effect from the time when the trustees or managers of the scheme receive the transfer notice—

(a)as if, except in prescribed descriptions of case—

(i)references in the order to the trustees or managers of the scheme were references to the Board, and

(ii)references in the order to any pension or lump sum to which the party with pension rights is or may become entitled under the scheme were references to any PPF compensation to which that person is or may become entitled in respect of the pension or lump sum, and

(b)subject to such other modifications as may be prescribed.

(4)Subsection (5) applies to an order under section 23 if—

(a)it includes provision made by virtue of section 25B(7) which requires the party with pension rights to exercise his right of commutation under an occupational pension scheme to any extent, and

(b)before the requirement is complied with the Board has assumed responsibility for the scheme as mentioned in subsection (2)(a).

(5)From the time the trustees or managers of the scheme receive the transfer notice, the order is to have effect with such modifications as may be prescribed.

(6)Regulations may modify section 25C as it applies in relation to an occupational pension scheme at any time when there is an assessment period in relation to the scheme.

(7)Where the court makes a pension sharing order in respect of a person’s shareable rights under an occupational pension scheme, or an order which includes provision made by virtue of section 25B(4) or (7) in relation to such a scheme, the Board subsequently assuming responsibility for the scheme as mentioned in subsection (2)(a) does not affect—

(a)the powers of the court under section 31 to vary or discharge the order or to suspend or revive any provision of it, or

(b)on an appeal, the powers of the appeal court to affirm, reinstate, set aside or vary the order.

(8)Regulations may make such consequential modifications of any provision of, or made by virtue of, this Part as appear to the Lord Chancellor necessary or expedient to give effect to the provisions of this section.

(9)In this section—

  • assessment period” means an assessment period within the meaning of Part 2 of the Pensions Act 2004 (pension protection) (see sections 132 and 159 of that Act) or an equivalent period under any provision in force in Northern Ireland corresponding to that Part;

  • the Board” means the Board of the Pension Protection Fund;

  • occupational pension scheme” has the same meaning as in the Pension Schemes Act 1993;

  • prescribed” means prescribed by regulations;

  • PPF compensation” means compensation payable under Chapter 3 of Part 2 of the Pensions Act 2004 (pension protection) or any provision in force in Northern Ireland corresponding to that Chapter;

  • regulations” means regulations made by the Lord Chancellor;

“shareable rights” are rights in relation to which pension sharing is available under Chapter 1 of Part 4 of the Welfare Reform and Pensions Act 1999 or any provision in force in Northern Ireland corresponding to that Chapter;

  • transfer notice” has the same meaning as in section 160 of the Pensions Act 2004 or any corresponding provision in force in Northern Ireland.

(10)Any power to make regulations under this section is exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Prospective

[F8525FAttachment of pension compensationE+W
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Amendments (Textual)

(1)This section applies where, having regard to any PPF compensation to which a party to the marriage is or is likely to be entitled, the court determines to make an order under section 23.

(2)To the extent to which the order is made having regard to such compensation, the order may require the Board of the Pension Protection Fund, if at any time any payment in respect of PPF compensation becomes due to the party with compensation rights, to make a payment for the benefit of the other party.

(3)The order must express the amount of any payment required to be made by virtue of subsection (2) as a percentage of the payment which becomes due to the party with compensation rights.

(4)Any such payment by the Board of the Pension Protection Fund—

(a)shall discharge so much of its liability to the party with compensation rights as corresponds to the amount of the payment, and

(b)shall be treated for all purposes as a payment made by the party with compensation rights in or towards the discharge of that party's liability under the order.

(5)Where the party with compensation rights has a right to commute any PPF compensation, the order may require that party to exercise it to any extent; and this section applies to any payment due in consequence of commutation in pursuance of the order as it applies to other payments in respect of PPF compensation.

(6)The power conferred by subsection (5) may not be exercised for the purpose of commuting compensation payable to the party with compensation rights to compensation payable to the other party.

(7)The power conferred by subsection (2) or (5) may not be exercised in relation to rights to PPF compensation that—

(a)derive from rights under a pension scheme that were at any time the subject of a pension sharing order in relation to the marriage, or a previous marriage between the same parties, or

(b)are or have ever been the subject of a pension compensation sharing order in relation to the marriage or a previous marriage between the same parties.

Prospective

25GPension compensation: supplementaryE+W

(1)The Lord Chancellor may by regulations—

(a)make provision, in relation to any provision of section 25F which authorises the court making an order under section 23 to require the Board of the Pension Protection Fund to make a payment for the benefit of the other party, as to the person to whom, and the terms on which, the payment is to be made;

(b)make provision, in relation to payment under a mistaken belief as to the continuation in force of a provision included by virtue of section 25F in an order under section 23, about the rights or liabilities of the payer, the payee or the person to whom the payment was due;

(c)require notices to be given in respect of changes of circumstances relevant to orders under section 23 which include provision made by virtue of section 25F;

(d)make provision for the Board of the Pension Protection Fund to be discharged in prescribed circumstances from a requirement imposed by virtue of section 25F;

(e)make provision about calculation and verification in relation to the valuation of PPF compensation for the purposes of the court's functions in connection with the exercise of any of its powers under this Part.

(2)Regulations under subsection (1)(e) may include—

(a)provision for calculation or verification in accordance with guidance from time to time prepared by a prescribed person;

(b)provision by reference to regulations under section 112 of the Pensions Act 2008.

(3)Regulations under subsection (1) may make different provision for different cases.

(4)The power to make regulations under subsection (1) is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5)In this section and section 25F—

  • the party with compensation rights” means the party to the marriage who is or is likely to be entitled to PPF compensation, and “the other party” means the other party to the marriage;

  • prescribed” means prescribed by regulations.]

26 Commencement of proceedings for ancillary relief, etc.E+W

(1)Where a petition for divorce, nullity of marriage or judicial separation has been presented, then, subject to subsection (2) below, proceedings for maintenance pending suit under section 22 above, for a financial provision order under section 23 above, or for a property adjustment order may be begun, subject to and in accordance with rules of court, at any time after the presentation of the petition.

(2)Rules of court may provide, in such cases as may be prescribed by the rules—

(a)that applications for any such relief as is mentioned in subsection (1) above shall be made in the petition or answer; and

(b)that applications for any such relief which are not so made, or are not made until after the expiration of such period following the presentation of the petition or filing of the answer as may be so prescribed, shall be made only with the leave of the court.

Financial provision in case of neglect to maintainE+W

27 Financial provision orders, etc., in case of neglect by party to marriage to maintain other party or child of the family.E+W

[F86(1)Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent)—

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

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

(2)The court shall not entertain an application under this section [F87unless—

(a)the applicant or the respondent is domiciled in England and Wales on the date of the application; or

(b)the applicant has been habitually resident there throughout the period of one year ending with that date; or

(c)the respondent is resident there on that date.]

[F88[F89(3)Where an application under this section is made on the ground mentioned in subsection (1)(a) above, then, in deciding—

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

(b)what order, if any, to make under this section in favour of the applicant,

the court shall have regard to all the circumstances of the case including the matters mentioned in section 25(2) above, and where an application is also made under this section in respect of a child of the family who has not attained the age of eighteen, first consideration shall be given to the welfare of the child while a minor.]

(3A)Where an application under this section is made on the ground mentioned in subsection (1)(b) above then, in deciding—

(a)whether the respondent has failed to provide, or to make a proper contribution towards, reasonable maintenance for the child of the family to whom the application relates, and

(b)what order, if any, to make under this section in favour of the child,

the court shall have regard to all the circumstances of the case including the matters mentioned in [F90section 25(3)(a) to (e)] above, and where the child of the family to whom the application relates is not the child of the respondent, including also the matters mentioned in [F90section 25(4)] above.

(3B)In relation to an application under this section on the ground mentioned in subsection (1)(a) above, [F91section 25(2)(c) above] shall have effect as if for the reference therein to the breakdown of the marriage there were substituted a reference to the failure to provide reasonable maintenance for the applicant, and in relation to an application under this section on the ground mentioned in subsection (1)(b) above, [F91section 25(2)(c) above (as it applies by virtue of section 25(3)(e) above)] shall have effect as if for the reference therein to the breakdown of the marriage there were substituted a reference to the failure to provide, or to make a proper contribution towards, reasonable maintenance for the child of the family to whom the application relates.]

(5)Where on an application under this section it appears to the court that the applicant or any child of the family to whom the application relates is in immediate need of financial assistance, but it is not yet possible to determine what order, if any, should be made on the application, the court may make an interim order for maintenance, that is to say, an order requiring the respondent to make to the applicant until the determination of the application such periodical payments as the court thinks reasonable.

(6)Where on an application under this section the applicant satisfies the court of any ground mentioned in subsection (1) above, the court may make [F92any one or more of the following orders], that is to say—

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

(b)an order that the respondent shall secure to the applicant, to the satisfaction of the court, such periodical payments, for such term, as may be so specified;

(c)an order that the respondent shall pay to the applicant such lump sum as may be so specified;

(d)an order that the respondent shall make to such person as may be specified in the order for the benefit of the child to whom the application relates, or to that child, such periodical payments, for such term, as may be so specified;

(e)an order that the respondent shall secure to such person as may be so specified for the benefit of that child, or to that child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified;

(f)an order that the respondent shall pay to such person as may be so specified for the benefit of that child, or to that child, such lump sum as may be so specified;

subject, however, in the case of an order under paragraph(d), (e)or (f) above, to the restrictions imposed by section 29(1) and (3) below on the making of financial provision orders in favour of children who have attained the age of eighteen.

[F93(6A)An application for the variation under section 31 of this Act of a periodical payments order or secured periodical payments order made under this section in favour of a child may, if the child has attained the age of sixteen, be made by the child himself.

[F94(6B)Where a periodical payments order made in favour of a child under this section ceases to have effect on the date on which the child attains the age of sixteen or at any time after that date but before or on the date on which he attains the age of eighteen, then if, on an application made to the court for an order under this subsection, it appears to the court that—

(a)the child is, will be or (if an order were made under this subsection) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he 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 subsection,

the court shall have power by order to revive the first mentioned order from such date as the court may specify, not being earlier than the date of the making of the application, and to exercise its power under section 31 of this Act in relation to any order so revived.]]

(7)Without prejudice to the generality of subsection (6)(c) or (f) above, an order under this section for the payment of a lump sum—

(a)may be made for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the applicant or any child of the family to whom the application relates before the making of the application to be met;

(b)may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.

F95(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Additional provisions with respect to financial provision and property adjustment ordersE+W

28 Duration of continuing financial provision orders in favour of party to marriage, and effect of remarriage [F96or formation of civil partnership]F96.E+W
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Amendments (Textual)

(1)[F97Subject in the case of an order made on or after the grant of a decree of divorce or nullity of marriage to the provisions of sections 25A(2) above and 31(7) below, the term to be specified in a periodical payments or secured periodical payments order in favour of a party to a marriage shall be such term as the court thinks fit, except that the term shall not begin before or extend beyond the following limits], that is to say—

(a)in the case of a periodical payments order, the term shall begin not earlier than the date of the making of an application for the order, and shall be so defined as not to extend beyond the death of either of the parties to the marriage or, where the order is made on or after the grant of a decree of divorce or nullity of marriage, the remarriage of [F98, or formation of a civil partnership by,]F98 the party in whose favour the order is made; and

(b)in the case of a secured periodical payments order, the term shall begin not earlier than the date of the making of an application for the order, and shall be so defined as not to extend beyond the death or, where the order is made on or after the grant of such a decree, the remarriage of [F98, or formation of a civil partnership by,]F98 the party in whose favour the order is made.

[F99(1A)Where a periodical payments or secured periodical payments order in favour of a party to a marriage is made on or after the grant of a decree of divorce or nullity of marriage, the court may direct that that party shall not be entitled to apply under section 31 below for the extension of the term specified in the order]

(2)Where a periodical payments or secured periodical payments order in favour of a party to a marriage is made otherwise than on or after the grant of a decree of divorce or nullity of marriage, and the marriage in question is subsequently dissolved or annulled but the order continues in force, the order shall, notwithstanding anything in it, cease to have effect on the remarriage of [F100, or formation of a civil partnership by,]F100 that party, except in relation to any arrears due under it on the date of the remarriage [F101or formation of the civil partnership]F101.

(3)If after the grant of a decree dissolving or annulling a marriage either party to that marriage remarries [F102whether at any time before or after the commencement of this Act][F103or forms a civil partnership]F103, that party shall not be entitled to apply, by reference to the grant of that decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage.

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Amendments (Textual)

Modifications etc. (not altering text)

29 Duration of continuing financial provision orders in favour of children, and age limit on making certain orders in their favour.E+W

(1)Subject to subsection (3) below, no financial provision order and no order for a transfer of property under section 24(1)(a) above shall be made in favour of a child who has attained the age of eighteen.

(2)The term to be specified in a periodical payments or secured periodical payments order in favour of a child may begin with the date of the making of an application for the order in question or any later date [F104or a date ascertained in accordance with subsection (5) or (6) below] but—

(a)shall not in the first instance extend beyond the date of the birthday of the child next following his attaining the upper limit of the compulsory school age [F105(construed in accordance with section 8 of the Education Act 1996)][F106unless 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)shall not in any event, subject to subsection (3) below, extend beyond the date of the child’s eighteenth birthday.

(3)Subsection (1) above, and paragraph (b) of subsection (2), shall not apply in the case of a child, if it appears to the court that—

(a)the child is, or will be, or if an order were made without complying with either or both of those provisions would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or

(b)there are special circumstances which justify the making of an order without complying with either or both of those provisions.

(4)Any periodical payments order in favour of a child shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the order on the date of the death.

[F107(5)Where—

(a)a [F108maintenance calculation] (“the [F109current calculation]”) is in force with respect to a child; and

(b)an application is made under Part II of this Act for a periodical payments or secured periodical payments order in favour of that child—

(i)in accordance with section 8 of the Child Support Act 1991, and

(ii)before the end of the period of 6 months beginning with the making of the [F109current 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.

(6)For the purposes of subsection (5) above, “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 [F109current calculation] took effect or, where successive [F110 maintenance calculations] have been continuously in force with respect to a child, on which the first of [F110those calculations] took effect.

(7)Where—

(a)a [F108 maintenance calculation] ceases to have effect [F111or is cancelled]F111 by or under any provision of the Child Support Act 1991; and

(b)an application is made, before the end of the period of 6 months beginning with the relevant date, for a periodical payments or secured periodical payments order in favour of a child with respect to whom that [F108maintenance calculation] was in force immediately before it ceased to have effect [F111or was cancelled]F111,

the term to be specified in any such order made on that application may begin with the date on which that [F108maintenance calculation] ceased to have effect [F111or, as the case may be, the date with effect from which it was cancelled]F111, or any later date.

(8)In subsection (7)(b) above—

(a)where the [F108maintenance calculation] ceased to have effect, the relevant date is the date on which it so ceased; [F112andF112]

[F112where the maintenance assessment was cancelled, the relevant date is the later of—

(i)the date on which the person who cancelled it did so, and

(ii)the date from which the cancellation first had effect.F112]]

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Amendments (Textual)

F104Words in s. 29(2) inserted (5.4.1993) by S.I. 1993/623, art. 2, Sch. 1 para. 1

F108Words in s. 29(5)(a)(7)(8)(a) substituted (3.3.2003 for certain purposes, otherwise prosp.) by 2000 c. 19, ss. 26, 86(2), Sch. 3 para. 3(2)(a) (with s. 83(6)); S.I. 2003/192, art. 3, Sch.

F109Words in s. 29(5)(a)(b)(ii)(6)(b) substituted (3.3.2003 for certain purposes, otherwise prosp.) by 2000 c. 19, ss. 26, 86(2), Sch. 3 para. 3(2)(b) (with s. 83(6)); S.I. 2003/192; art. 3, Sch.

F110Words in s. 29(6)(b) substituted (3.3.2003 for certain purposes, otherwise prosp.) by 2000 c. 19, ss. 26, 86(2), Sch. 3 para. 3(2)(c)(d) (with s. 83(6)); S.I. 2003/192, art. 3, Sch.

F111Words in s. 29(7) repealed (3.3.2003 for certain purposes, otherwise prosp.) by 2000 c. 19, ss. 85, 86(2), Sch. 9 Pt. I (with s. 83(6)); S.I. 2003/192, art. 3, Sch.

F112S. 29(8)(b) and preceding word repealed (3.3.2003 for certain purposes, otherwise prosp.) by 2000 c. 19, ss. 85, 86(2), Sch. 9 Pt. I (with s. 83(6)); S.I. 2003/192, art. 3, Sch.

Modifications etc. (not altering text)

30 Direction for settlement of instrument for securing payments or effecting property adjustment.E+W

Where the court decides to make a financial provision order requiring any payments to be secured or a property adjustment order—

(a)it may direct that the matter be referred to one of the conveyancing counsel of the court for him to settle a proper instrument to be executed by all necessary parties; and

(b)where the order is to be made in proceedings for divorce, nullity of marriage or judicial separation it may, if it thinks fit, defer the grant of the decree in question until the instrument has been duly executed.

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Modifications etc. (not altering text)

Variation, discharge and enforcement of certain orders, etc.E+W

31 Variation, discharge, etc., of certain orders for financial relief.E+W

(1)Where the court has made an order to which this section applies, then, subject to the provisions of this section [F113and of section 28(1A) above], 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 section 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 section 23(3)(c) or 27(7)(b) above (provision for payment of a lump sum by instalments;

[F114(dd)any deferred order made by virtue of section 23(1)(c) (lump sums) which includes provision made by virtue of—

(i)section 25B(4), or

(ii)section 25C,

(provision in respect of pension rights)]

(e)any order for a settlement of property under section 24(1)(b) or for a variation of settlement under section 24(1)(c) or (d) above, being an order made on or after the grant of a decree of judicial separation.

[F115(f)any order made under section 24A(1) above for the sale of property]

[F116(g)a pension sharing order under section 24B above which is made at a time before the decree has been made absolute.]

[F117(2A)Where the court has made an order referred to in subsection (2)(a), (b) or (c) above, then, subject to the provisions of this section, the court shall have power to remit the payment of any arrears due under the order or of any part thereof.]

[F118(2B)Where the court has made an order referred to in subsection (2)(dd)(ii) above, this section 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 section 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 section in relation to an order for a settlement under section 24(1)(b) or for a variation of settlement under section 24(1)(c) or (d) above 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.

[F119(4A)In relation to an order which falls within paragraph (g) of subsection (2) above (“the subsection (2) order”)—

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

(i)only on an application made before the subsection (2) order has or, but for paragraph (b) below, 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 paragraph (a) above prevents the subsection (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.]

(5)[F120Subject to subsections (7A) to [F121(7G)] below and without prejudice to any power exercisable by virtue of subsection (2)(d), (dd) [F122, (e) or (g)] above or otherwise than by virtue of this section,] no property adjustment order [F123or 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 section 23 above, 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 section 23 or under section 27 above).

(6)Where the person liable to make payments under a secured periodical payments order has died, an application under this section relating to that order [F124(and to any order made under section 24A(1) above which requires the proceeds of sale of property to be used for securing those payments) may be made by the person entitled to payments under the periodical payments 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.

[F125(7)In exercising the powers conferred by this section 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 eighteen, 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 or nullity of marriage, the court shall 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 to be made or secured only for such further period as will in the opinion of the court be sufficient [F126(in the light of any proposed exercise by the court, where the marriage has been dissolved, of its powers under subsection (7B) below)] 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.]

[F127(7A)Subsection (7B) below applies where, after the dissolution of a marriage, the court—

(a)discharges a periodical payments order or secured periodical payments order made in favour of a party to the marriage; or

(b)varies such an order so that payments under the order are required to be made or secured only for such further period as is determined by the court.

(7B)The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of—

(a)an order for the payment of a lump sum in favour of a party to the marriage;

(b)one or more property adjustment orders in favour of a party to the marriage;

[F128(ba)one or more pension sharing orders;]

(c)a direction that the party in whose favour the original order discharged or varied was made is not entitled to make any further application for—

(i)a periodical payments or secured periodical payments order, or

(ii)an extension of the period to which the original order is limited by any variation made by the court.

(7C)An order for the payment of a lump sum made under subsection (7B) above may—

(a)provide for the payment of that sum by instalments of such amount as may be specified in the order; and

(b)require the payment of the instalments to be secured to the satisfaction of the court.

(7D)Subsections (7) and (8) of section 22A above apply where the court makes an order for the payment of a lump sum under subsection (7B) above as they apply where it makes such an order under section 22A above.

(7E)If under subsection (7B) above the court makes more than one property adjustment order in favour of the same party to the marriage, each of those orders must fall within a different paragraph of section 21(2) above.

(7F)Sections 24A and 30 above apply where the court makes a property adjustment order under subsection (7B) above as they apply where it makes such an order under section 23A above.]

[F129(7G)Subsections (3) to (5) of section 24B above apply in relation to a pension sharing order under subsection (7B) above as they apply in relation to a pension sharing order under that section.]

(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 subsection (6) above on the ground that they ought to have taken into account the possibility that the court might permit an application under this section to be made after that period by the person entitled to payments under the order; but this subsection 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 section.

(9)In considering for the purposes of subsection (6) above the question when representation was first taken out, a grant limited to settled land or to trust property shall be left out of account and a grant limited to real estate or to personal estate 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.

[F130(10)Where the court, in exercise of its powers under this section, decides to vary or discharge a periodical payments or secured periodical payments order, then, subject to section 28(1) and (2) above, 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.]

[F131(11)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 [F132maintenance calculation]F132 (“ [F133the calculation]F133”) 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 [F133the calculation]F133 was made, for the variation or discharge of the order, the court may, in exercise of its powers under this section to vary or discharge the order, direct that the variation or discharge shall take effect from the date on which [F133the calculation]F133 took effect or any later date.

(12)Where—

(a)an order (“the child order”) of a kind prescribed for the purposes of section 10(1) of the Child Support Act 1991 is affected by a [F132maintenance calculation]F132;

(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 [F132maintenance calculation]F132 was made, for the spousal order to be varied or discharged,

the court may, in exercise of its powers under this section 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.

(13)For the purposes of subsection (12) above, an order is affected if it ceases to have effect or is modified by or under section 10 of the Child Support Act 1991.

(14)Subsections (11) and (12) above are without prejudice to any other power of the court to direct that the variation of discharge of an order under this section shall take effect from a date earlier than that on which the order for variation or discharge was made.]

[F134(15)The power to make regulations under subsection (4C) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

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Amendments (Textual)

F116S. 31(2)(g) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 7(1)(2); S.I. 2000/1116, art. 2

F119S. 31(4A)-(4C) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 7(1)(3); S.I. 2000/1116, art. 2

F121Words in s. 31(5) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000)by 1999 c. 30, s. 19, Sch. 3 para. 7(1)(4)(a); S.I. 2000/1116, art. 2

F122Words in s. 31(5) substituted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 7(1)(4)(b); S.I. 2000/1116, art. 2

F123Words in s. 31(5) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 7(1)(4)(c); S.I. 2000/1116, art. 2

F127S. 31(7A)-(7F) inserted (1.11.1998) by 1996 c. 27, s. 66(1), Sch. 8 Pt. I para. 16(7) (with Sch. 9 para. 5); S.I. 1998/2572, art. 3 (subject to temporary modifications in art. 4 of that S.I.)

F128S. 31(7B)(ba) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 7(1)(5); S.I. 2000/1116, art. 2

F129S. 31(7G) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 7(1)(6)

F132Words in s. 31(11)(c)(12)(a)(c) substituted (3.3.2003 for certain purposes, otherwise prosp.) by 2000 c. 19, ss. 26, 86(2), Sch. 3 para. 3(3)(a) (with s. 83(6)); S.I. 2003/192, art. 3, Sch.

F133Words in s. 31(11) substituted (3.3.2003 for certain purposes, otherwise prosp.) by virtue of 2000 c. 19, ss. 26, 86(2), Sch. 3 para. 3(3)(b) (with s. 83(6)); S.I. 2003/192, art. 3, Sch.

F134S. 31(15) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 7(1)(7); S.I. 2000/1116, art. 2

Modifications etc. (not altering text)

Prospective

[F13531A Variation etc. following reconciliations.E+W
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Amendments (Textual)

F135S. 31A inserted (with saving) (prosp.) by 1996 c. 27, ss. 15, 67(3), Sch. 2 para. 8

(1)Where, at a time before the making of a divorce order—

(a)an order (“a paragraph (a) order”) for the payment of a lump sum has been made under section 22A above in favour of a party,

(b)such an order has been made in favour of a child of the family but the payment has not yet been made, or

(c)a property adjustment order (“a paragraph (c) order”) has been made under section 23A above,

the court may, on an application made jointly by the parties to the marriage, vary or discharge the order.

(2)Where the court varies or discharges a paragraph (a) order, it may order the repayment of an amount equal to the whole or any part of the lump sum.

(3)Where the court varies or discharges a paragraph (c) order, it may (if the order has taken effect)—

(a)order any person to whom property was transferred in pursuance of the paragraph (c) order to transfer—

(i)the whole or any part of that property, or

(ii)the whole or any part of any property appearing to the court to represent that property,

in favour of a party to the marriage or a child of the family; or

(b)vary any settlement to which the order relates in favour of any person or extinguish or reduce any person’s interest under that settlement.

(4)Where the court acts under subsection (3) it may make such supplemental provision (including a further property adjustment order or an order for the payment of a lump sum) as it thinks appropriate in consequence of any transfer, variation, extinguishment or reduction to be made under paragraph (a) or (b) of that subsection.

(5)Sections 24A and 30 above apply for the purposes of this section as they apply where the court makes a property adjustment order under section 23A or 24 above.

(6)The court shall not make an order under subsection (2), (3) or (4) above unless it appears to it that there has been a reconciliation between the parties to the marriage.

(7)The court shall also not make an order under subsection (3) or (4) above unless it appears to it that the order will not prejudice the interests of—

(a)any child of the family; or

(b)any person who has acquired any right or interest in consequence of the paragraph (c) order and is not a party to the marriage or a child of the family.]

Prospective

[F13631B Discharge of pension sharing orders on making of separation order.E+W

Where, after the making of a pension sharing order under section 24B above in relation to a marriage, a separation order is made in relation to the marriage, the pension sharing order is discharged. ”]

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Amendments (Textual)

32 Payment of certain arrears unenforceable without the leave of the court.E+W

(1)A person shall not be entitled to enforce through the High Court or any county court the payment of any arrears due under an order for maintenance pending suit, an interim order for maintenance or any financial provision order without the leave of that court if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun.

(2)The court hearing an application for the grant of leave under this section may refuse leave, or may 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 may remit the payment of the arrears or of any part thereof.

(3)An application for the grant of leave under this section shall be made in such manner as may be prescribed by rules of court.

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Modifications etc. (not altering text)

33 Orders for repayment in certain cases of sums paid under certain orders.E+W

(1)Where on an application made under this section in relation to an order to which this section applies it appears to the court that by reason of—

(a)a change in the circumstances of the person entitled to, or liable to make, payments under the order since the order was made, or

(b)the changed circumstances resulting from the death of the person so liable,

the amount received by the person entitled to payments under the order in respect of a period after those circumstances changed or after the death of the person liable to make payments under the order, as the case may be, exceeds the amount which the person so liable or his or her personal representatives should have been required to pay, the court may order the respondent to the application to pay to the applicant such sum, not exceeding the amount of the excess, as the court thinks just.

(2)This section 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; and

(c)any secured periodical payments order.

(3)An application under this section may be made by the person liable to make payments under an order to which this section applies or his or her personal representatives and may be made against the person entitled to payments under the order or her or his personal representatives.

(4)An application under this section may be made in proceedings in the High Court or a county court for—

(a)the variation or discharge of the order to which this section applies, or

(b)leave to enforce, or the enforcement of, the payment of arrears under that order;

but when not made in such proceedings shall be made to a county court, and accordingly references in this section to the court are references to the High Court or a county court, as the circumstances require.

(5)The jurisdiction conferred on a county court by this section shall be exercisable notwithstanding that by reason of the amount claimed in the application the jurisdiction would not but for this subsection be exercisable by a county court.

(6)An order under this section 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.

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Modifications etc. (not altering text)

[F137 Consent orders]E+W

[F13833A Consent orders for financial provision or property adjustment.E+W

(1)Notwithstanding anything in the preceding provisions of this Part of this Act, 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 the prescribed information furnished with the application.

(2)Subsection (1) above 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 section—

  • 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 sections 23, 24, 24A [F139, 24B] or 27 above; and

  • prescribed” means prescribed by rules of court.]

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Amendments (Textual)

F139Words in definition of “order for financial relief” in s. 33A(3) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 8; S.I. 2000/1116, art. 2

Maintenance agreementsE+W

34 Validity of maintenance agreements.E+W

(1)If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements, then—

(a)that provision shall be void; but

(b)any other financial arrangements contained in the agreement shall not thereby be rendered void or unenforceable and shall, unless they are void or unenforceable for any other reason (and subject to sections 35 and 36 below), be binding on the parties to the agreement.

(2)In this section and in section 35 below—

  • maintenance agreement” means any agreement in writing made, whether before or after the commencement of this Act, between the parties to a marriage, being—

(a)an agreement containing financial arrangements, whether made during the continuance or after the dissolution or annulment of the marriage; or

(b)a separation agreement which contains no financial arrangements in a case where no other agreement in writing between the same parties contains such arrangements;

  • financial arrangements” means provisions governing the rights and liabilities towards one another when living separately of the parties to a marriage (including a marriage which has been dissolved or annulled) in respect of the making or securing of payments or the disposition or use of any property, including such rights and liabilities with respect to the maintenance or education of any child, whether or not a child of the family.

35 Alteration of agreements by court during lives of parties.E+W

(1)Where a maintenance agreement is for the time being subsisting and each of the parties to the agreement is for the time being either domiciled or resident in England and Wales, then, subject to subsection (3) below, either party may apply to the court or to a magistrates’ court for an order under this section.

(2)If the court to which the application is made is satisfied either—

(a)that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made or, as the case may be, financial arrangements were omitted from it (including a change foreseen by the parties when making the agreement), the agreement should be altered so as to make different, or, as the case may be, 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,

then subject to subsections (3), (4) and (5) below, that court may by order make such alterations in the agreement—

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

(ii)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 may appear to that court to be just having regard to all the circumstances, including, if relevant, the matters mentioned in [F140section 25(4)] above; and the agreement shall have effect thereafter as if any alteration made by the order had been made by agreement between the parties and for valuable consideration.

(3)A magistrates’ court shall not entertain an application under subsection (1) above unless both the parties to the agreement are resident in England and Wales and [F141[F142the court acts in, or is authorised by the Lord Chancellor to act for, a local justice area in which at least one of the parties is resident]F142;] and shall not have power to make any order on such an application except—

(a)in a case where 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 the other party or for the maintenance of any child of the family;

(b)in a case where 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.

(4)Where a court decides to alter, by order under this section, an agreement 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 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, 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 agreement as altered by the order shall be such term as the court may specify, subject to the following limits, that is to say—

(a)where the payments will not be secured, the term shall be so defined as not to extend beyond the death of either of the parties to the agreement or the remarriage of [F143, or formation of a civil partnership by,]F143 the party to whom the payments are to be made;

(b)where the payments will be secured, the term shall be so defined as not to extend beyond the death or remarriage of [F143, or formation of a civil partnership by,]F143 that party.

(5)Where a court decides to alter, by order under this section, an agreement by 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 by 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, then, in deciding the term for which under the agreement as altered by the order the payments, or as the case may be, the additional payments attributable to the increase are to be made or secured for the benefit of the child, the court shall apply the provisions of section 29(2) and (3) above as to age limits as if the order in question were a periodical payments or secured periodical payments order in favour of the child.

(6)For the avoidance of doubt it is hereby declared that nothing in this section or in section 34 above affects 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 Act) to make an order containing financial arrangements or any right of either party to apply for such an order in such proceedings.

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Amendments (Textual)

36 Alteration of agreements by court after death of one party.E+W

(1)Where a maintenance agreement within the meaning of section 34 above provides for the continuation of payments under the agreement after the death of one of the parties and that party dies domiciled in England and Wales, the surviving party or the personal representatives of the deceased party may, subject to subsections (2) and (3) below, apply to the High Court or a county court for an order under section 35 above.

(2)An application under this section shall not, except with the permission of the High Court or a county court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out.

(3)A county court shall not entertain an application under this section, or an application for permission to make an application under this section, unless it would have jurisdiction by virtue of [F144section 22 of the M7Inheritance (Provision for Family and Dependants) Act 1975] (which confers jurisdiction on county courts in proceedings under [F144that Act if the value of the property mentioned in that section] does not exceed £5,000 or such larger sum as may be fixed by order of the Lord Chancellor) to hear and determine proceedings for an order under [F144section 2 of that Act] in relation to the deceased’s estate.

(4)If a maintenance agreement is altered by a court on an application made in pursuance of subsection (1) above, the like consequences shall ensue as if the alteration had been made immediately before the death by agreement between the parties and for valuable consideration.

(5)The provisions of this section shall not render the personal representatives of the deceased liable for having distributed any part of the estate of the deceased after the expiration of the period of six months referred to in subsection (2) above on the ground that they ought to have taken into account the possibility that a court might permit an application by virtue of this section to be made by the surviving party after that period; but this subsection 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 section.

(6)Section 31(9) above shall apply for the purposes of subsection (2) above as it applies for the purposes of subsection (6) of section 31.

(7)Subsection (3) of [F145section 22 of the M8Inheritance (Provision for Family and Dependants) Act 1975 (which enables rules of court to provide for the transfer from a county court to the High Court or from the High Court to a county court of proceedings for an order under section 2 of that Act) and paragraphs (a) and (b) of subsection (4)] of that section (provisions relating to proceedings commenced in county court before coming into force of order of the Lord Chancellor under that section) shall apply in relation to proceedings consisting of any such application as is referred to in subsection (3) above as they apply in relation to [F145proceedings for an order under section 2 of that Act].

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Amendments (Textual)

Modifications etc. (not altering text)

Marginal Citations

Miscellaneous and supplementalE+W

37 Avoidance of transactions intended to prevent or reduce financial relief.E+W

(1)For the purposes of this section “financial relief” means relief under any of the provisions of sections 22, 23, 24, [F14624B,] 27, 31 (except subsection (6)) and 35 above, and any reference in this section to defeating a person’s claim for financial relief is a reference to preventing financial relief from being granted to that person, or to that person for the benefit of a child of the family, or reducing the amount of any financial relief which might be so granted, or frustrating or impeding the enforcement of any order which might be or has been made at his instance under any of those provisions.

(2)Where proceedings for financial relief are brought by one person against another, the court may, on the applicaton of the first-mentioned person—

(a)if it is satisfied that the other party to the proceedings is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim;

(b)if it is satisfied that the other party has, with that intention, made a reviewable disposition and that if the disposition were set aside financial relief or different financial relief would be granted to the applicant, make an order setting aside the disposition;

(c)if it is satisfied, in a case where an order has been obtained under any of the provisions mentioned in subsection (1) above by the applicant against the other party, that the other party has, with that intention, made a reviewable disposition, make an order setting aside the disposition;

and an application for the purposes of paragraph (b) above shall be made in the proceedings for the financial relief in question.

(3)Where the court makes an order under subsection (2)(b) or (c) above setting aside a disposition it shall 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).

(4)Any disposition made by the other party to the proceedings for financial relief in question (whether before or after the commencement of those proceedings) as is reviewable disposition for the purposes of subsection (2)(b) and (c) above unless it was made for valuable consideration (other than marriage) 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 the part of the other party to defeat the applicant’s claim for financial relief.

(5)Where an application is made under this section with respect to a disposition which took place less than three 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 subsection (2)(a) or (b) above, that the disposition or other dealing would (apart from this section) have the consequence, or

(b)in a case falling within subsection (2)(c) above, that the disposition has had the consequence,

of defeating the applicant’s claim for financial relief, it shall be 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 the applicant’s claim for financial relief.

(6)In this section “disposition” does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise.

(7)This section does not apply to a disposition made before 1st January 1968.

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Amendments (Textual)

F146Words in s. 37 inserted (11.11.1999 for certain purposes and otherwiseprosp.) by 1999 c. 30, s. 19, Sch. 3 para. 9; S.I. 2000/1116, art. 2

38 Orders for repayment in certain cases of sums paid after cessation of order by reason of remarriage [F147or formation of civil partnership]F147.E+W
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Amendments (Textual)

(1)Where—

(a)a periodical payments or secured periodical payments order in favour of a party to a marriage (hereafter in this section referred to as “a payments order”) has ceased to have effect by reason of the remarriage of [F148, or formation of a civil partnership by,]F148 that party, and

(b)the person liable to make payments under the order or his or her personal representatives made payments in accordance with it in respect of a period after the date of the remarriage [F149or formation of the civil partnership]F149 in the mistaken belief that the order was still subsisting,

the person so liable or his or her personal representatives shall not be entitled to bring proceedings in respect of a cause of action arising out of the circumstances mentioned in paragraphs (a) and (b) above against the person entitled to payments under the order or her or his personal representatives, but may instead make an application against that person or her or his personal representatives under this section.

(2)On an application under this section the court may order the respondent to pay to the applicant a sum equal to the amount of the payments made in respect of the period mentioned in subsection (1)(b) above or, if it appears to the court that it would be unjust to make that order, it may either order the respondent to pay to the applicant such lesser sum as it thinks fit or dismiss the application.

(3)An application under this section may be made in proceedings in the High Court or a county court for leave to enforce, or the enforcement of, payment of arrears under the order in question, but when not made in such proceedings shall be made to a county court; and accordingly references in this section to the court are references to the High Court or a county court, as the circumstances require.

(4)The jurisdiction conferred on a county court by this section shall be exercisable notwithstanding that by reason of the amount claimed in the application the jurisdiction would not but for this subsection be exercisable by a county court.

(5)An order under this section 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)[F150The designated officer for a magistrates' court]F150 to whom any payments under a payments order are required to be made, and the collecting officer under an attachment of earnings order made to secure payments under a payments order, shall not be liable—

(a)in the case of [F151the designated officer]F151, for any act done by him in pursuance of the payments order after the date on which that order ceased to have effect by reason of the remarriage of [F152, or formation of a civil partnership by,]F152 the person entitled to payments under it, and

(b)in the case of the collecting officer, for any act done by him after that date in accordance with any enactment or rule of court specifying how payments made to him in compliance with the attachment of earnings order are to be dealt with,

if, but only if, the act was one which he would have been under a duty to do had the payments order not so ceased to have effect and the act was done before notice in writing of the fact that the person so entitled had remarried [F153or formed a civil partnership]F153 was given to him by or on behalf of that person, the person liable to make payments under the payments order or the personal representatives of either of those persons.

(7)In this section “collecting officer”, in relation to an attachment of earnings order, means the officer of the High Court, the registrar of a county court or [F154the designated officer for a magistrates' court]F154 to whom a person makes payments in compliance with the order.

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Amendments (Textual)

Modifications etc. (not altering text)

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

The fact that a settlement or transfer of property had to be made in order to comply with a property adjustment order shall not prevent that settlement or transfer from being [F155a transaction in respect of which an order may be made under [F156section 339 or 340 of the M9Insolvency Act 1986] (transactions at an undervalue and preferences.)]

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Amendments (Textual)

Modifications etc. (not altering text)

Marginal Citations

40 Payments, etc., under order made in favour of person suffering from mental disorder.E+W

[F157(1)]Where the court makes an order under this Part of this Act requiring payments (including a lump sum payment) to be made, or property to be transferred, to a party to a marriage and the court is satisfied that the person in whose favour the order is made [F158(“P”) lacks capacity (within the meaning of the Mental Capacity Act 2005) in relation to the provisions of the order]F158 then, subject to any order, direction or authority made or given in relation to [F159P under that Act]F159, the court may order the payments to be made, or as the case may be, the property to be transferred, to [F160 such person (“D”) as it may direct]F160.

[F161(2)In carrying out any functions of his in relation to an order made under subsection (1), D must act in P's best interests (within the meaning of that Act).F161]

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Amendments (Textual)

Modifications etc. (not altering text)

[F16240A Appeals relating to pension sharing orders which have taken effect.E+W

(1)Subsections (2) and (3) below apply where 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 taking effect of the order.

(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 Secretary of State has acted to his detriment in reliance on the taking effect of the order.

(4)In determining for the purposes of subsection (2) or (3) above whether a person has acted to his 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 subsection (2) or (3) above 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)Section 24C above only applies to a pension sharing order under this section if the decision of the appeal court can itself be the subject of an appeal.

(7)In subsection (2) above, the reference to the person responsible for the pension arrangement is to be read in accordance with section 25D(4) above.]

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Amendments (Textual)

F162S. 40A inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 10; S.I. 2000/1116, art. 2

Prospective

[F16340BAppeals relating to pension compensation sharing orders which have taken effectE+W
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Amendments (Textual)

(1)This section applies where an appeal against a pension compensation sharing order is begun on or after the day on which the order takes effect.

(2)If the Board of the Pension Protection Fund has acted to its detriment in reliance on the taking effect of the order the appeal court—

(a)may not set aside or vary the order;

(b)may make such further orders (including a pension compensation sharing order) as it thinks fit for the purpose of putting the parties in the position it considers appropriate.

(3)In determining for the purposes of subsection (2) whether the Board has acted to its detriment the appeal court may disregard any detriment which in the court's opinion is insignificant.

(4)Section 24F (duty to stay) only applies to a pension compensation sharing order under this section if the decision of the appeal court can itself be the subject of an appeal.]

Part IIIE+W Protection, Custody, etc., of Children

[F16441 Restrictions on decrees for dissolution, annulment or separation affecting children.E+W
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Amendments (Textual)

(1)In any proceedings for a decree of divorce or nullity of marriage, or a decree of judicial separation, the court shall consider—

(a)whether there are any children of the family to whom this section applies; and

(b)where there are any such children, whether (in the light of the arrangements which have been, or are proposed to be, made for their upbringing and welfare) it should exercise any of its powers under the Children Act 1989 with respect to any of them.

(2)Where, in any case to which this section applies, it appears to the court that—

(a)the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Act of 1989 with respect to any such child;

(b)it is not in a position to exercise that power or (as the case may be) those powers without giving further consideration to the case; and

(c)there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section,

it may direct that the decree of divorce or nullity is not to be made absolute, or that the decree of judicial separation is not to be granted, until the court orders otherwise.

(3)This section applies to—

(a)any child of the family who has not reached the age of sixteen at the date when the court considers the case in accordance with the requirements of this section; and

(b)any child of the family who has reached that age at that date and in relation to whom the court directs that this section shall apply.]

F16542. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F16643. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F16744. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

Part IVE+W Miscellaneous and Supplemental

F16845. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F16946. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

47 Matrimonial relief and declarations of validity in respect of polygamous marriages.E+W

(1)A court in England and Wales shall not be precluded from granting matrimonial relief or making a declaration concerning the validity of a marriage by reason only that [F170either party to the marriage is, or has during the subsistence of the marriage been, married to more than one person].

(2)In this section “matrimonial relief” means—

(a)any decree under Part I of this Act;

(b)a financial provision order under section 27 above;

(c)an order under section 35 above altering a maintenance agreement;

(d)an order under any provision of this Act which confers a power exercisable in connection with, or in connection with proceedings for, any such decree or order as is mentioned in paragraphs (a) to (c) above;

[F171(dd)an order under Part III of the Matrimonial and Family Proceedings Act 1984;]

(e)an order under [F172Part I of the M10Domestic Proceedings and Magistrates’ Courts Act 1978].

[F173(3)In this section “a declaration concerning the validity of a marriage” means any declaration under Part III of the Family Law Act 1986 involving a determination as to the validity of a marriage]

[F174(4)Provision may be made by rules of court—

(a)for requiring notice of proceedings brought by virtue of this section to be served on any additional spouse of a party to the marriage in question; and

(b)for conferring on any such additional spouse the right to be heard in the proceedings,

in such cases as may be specified in the rules.]

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Amendments (Textual)

F170Words in s. 47(1) substituted (8.1.1996) by 1995 c. 42, ss. 8, 16(2), Sch. para. 3(a) (with s. 8(1)(3))

F174S. 47(4) substituted (8.1.1996) by 1995 c. 42, ss. 8, 16(2), Sch. para. 3(b) (with s. 8(1)(3))

Marginal Citations

48 Evidence.E+W

(1)The evidence of a husband or wife shall be admissible in any proceedings to prove that marital intercourse did or did not take place between them during any period.

(2)In any proceedings for nullity of marriage, evidence on the question of sexual capacity shall be heard in camera unless in any case the judge is satisfied that in the interests of justice any such evidence ought to be heard in open court.

49 Parties to proceedings under this Act.E+W

(1)Where in a petition for divorce or judicial separation, or in any other pleading praying for either form of relief, one party to a marriage alleges that the other has committed adultery, he or she shall make the person alleged to have committed adultery with the other party to the marriage a party to the proceedings unless excused by the court on special grounds from doing so.

(2)Rules of court may, either generally or in such cases as may be prescribed by the rules, exclude the application of subsection (1) above where the person alleged to have committed adultery with the other party to the marriage is not named in the petition or other pleading.

(3)Where in pursuance of subsection (1) above a person is made a party to proceedings for divorce or judicial separation, the court may, if after the close of the evidence on the part of the person making the allegation of adultery it is of opinion that there is not sufficient evidence against the person so made a party, dismiss him or her from the suit.

(4)Rules of court may make provision, in cases not falling within subsection (1) above, with respect to the joinder as parties to proceedings under this Act of persons involved in allegations of adultery or other improper conduct made in those proceedings, and with respect to the dismissal from such proceedings of any parties so joined; and rules of court made by virtue of this subsection may make different provision for different cases.

(5)In every case in which adultery with any party to a suit is alleged against any person not made a party to the suit or in which the court considers, in the interest of any person not already a party to the suit, that that person should be made a party to the suit, the court may if it thinks fit allow that person to intervene upon such terms, if any, as the court thinks just.

F17550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F17651. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

52 Interpretation.E+W

(1)In this Act—

  • F177 . . .

  • child”, in relation to one or both of the parties to a marriage, includes an illegitimate F178. . . child of that party or, as the case may be, of both parties;

  • child of the family”, in relation to the parties to a marriage, means—

    (a)

    a child of both of those parties; and

    (b)

    any other child, not being a child who [F179is placed with those parties as foster parents] by a local authority or voluntary organisation, who has been treated by both of those parties as a child of their family;

  • the court” (except where the context otherwise requires) means the High Court or, where a county court has jurisdiction by virtue of [F180Part V of the Matrimonial and Family Proceedings Act 1984], a county court;

  • F181. . .

  • education” includes training.

  • [F182[F183maintenance calculation]F183” has the same meaning as it has in the Child Support Act 1991 by virtue of section 54 of that Act as read with any regulations in force under that section.]

(2)In this Act—

(a)references to financial provision orders, periodical payments and secured periodical payments orders and orders for the payment of a lump sum, and references to property adjustment orders, shall be construed in accordance with section 21 above;

[F184(aa)references to pension sharing orders shall be construed in accordance with section 21A above; and]

(b)references to orders for maintenance pending suit and to interim orders for maintenance shall be construed respectively in accordance with section 22 and section 27(5) above.

(3)For the avoidance of doubt it is hereby declared that references in this Act to remarriage include references to a marriage which is by law void or voidable.

[F185(3A)References in this Act to the formation of a civil partnership by a person include references to a civil partnership which is by law void or voidable.]

F185(4)Except where the contrary intention is indicated, references in this Act to any enactment include references to that enactment as amended, extended or applied by or under any subsequent enactment, including this Act.

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Amendments (Textual)

F177Definition repealed by Children Act 1975 (c. 72), Sch. 4 Pt. I as respects things done, or events occurring, after 31.12.1975

F178Words repealed by Children Act 1975 (c. 72), Sch. 4 Pt. I as respects things done, or events occurring, after 31.12.1975

F181Definition in s. 52(1) repealed (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4)); S.I. 1991/828, art. 3(2)

F182Definition in s. 52(1) inserted (5.4.1993) by S.I. 1993/623, art. 2, Sch. 1 para. 4

F183Words in s. 52(1) substituted (3.3.2003 for certain purposes, otherwise prosp.) by 2000 c. 19, ss. 26, 86(2), Sch. 3 para. 3(4) (with s. 83(6)); S.I. 2003/192, art. 3, Sch.

F184S. 52(2)(aa) substituted for word in s. 52(2) (1.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 11; S.I. 2000/1116, art. 2

F185S. 52(3A) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(1), 263, {Sch. 27 para. 46)}; S.I. 2005/3175, art. 2(2) (subject to art. 2(3)-(5))

53 Transitional provisions and savings.E+W

Schedule 1 to this Act shall have effect for the purpose of—

(a)the transition to the provisions of this Act from the law in force before the commencement of this Act;

(b)the preservation for limited purposes of certain provisions superseded by provisions of this Act or by enactments repealed and replaced by this Act; and

(c)the assimilation in certain respects to orders under this Act of orders made, or deemed to have been made, under the M11Matrimonial Causes Act 1965.

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Marginal Citations

54 Consequential amendments and repeals.E+W

(1)Subject to the provisions of Schedule 1 to this Act—

(a)the enactments specified in Schedule 2 to this Act shall have effect subject to the amendments specified in that Schedule, being amendments consequential on the provisions of this Act or on enactments repealed by this Act; and

F186(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The amendment of any enactment by Schedule 2 to this Act shall not be taken as prejudicing the operation of [F187sections 16(1) and 17(2)(a) of the M12Interpretation Act 1978] (which relates to the effect of repeals).

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Amendments (Textual)

F187Words substituted by virtue of Interpretation Act 1978 (c. 30), s. 25(2)

Marginal Citations

55 Citation, commencement and extent.E+W

(1)This Act may be cited as the Matrimonial Causes Act 1973.

(2)This Act shall come into force on such day as the Lord Chancellor may appoint by order made by statutory instrument.

(3)Subject to the provisions of paragraphs 3(2) F188. . . of Schedule 2 below, this Act does not extend to Scotland or Northern Ireland.

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Amendments (Textual)

Modifications etc. (not altering text)

C28Power of appointment conferred by s. 55(2) fully exercised: 1.1.1974 appointed by SI. 1973/1972, art. 2

SCHEDULES

SCHEDULE 1E+W Transitional Provisions and Savings

Part IE+W Miscellaneous and General

General transitional provisions and savingsE+W

1Without prejudice to the provisions of [F189sections 16(1) and 17(2)(a) of the Interpretation Act 1978] (which relates to the effect of repeals)—E+W

(a)nothing in any repeal made by this Act shall affect any order or rule made, direction given or thing done, or deemed to have been made, given or done, under any enactment repealed by this Act, and every such order, rule, direction or thing shall, if in force at the commencement of this Act, continue in force and, so far as it could have been made, given or done under this Act, be deemed to have been made, given or done under the corresponding provisions of this Act; and

(b)any reference in any document (including an enactment) to any enactment repealed by this Act, whether a specific reference or a reference to provisions of a description which includes, or apart from any repeal made by this Act includes, the enactment so repealed, shall be construed as a reference to the corresponding enactment in this Act.

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Amendments (Textual)

F189Words substituted by virtue of Interpretation Act 1978 (c. 30), s. 25(2)

2Without prejudice to paragraph 1 above, but subject to paragraph 3 below, any application made or proceeding begun, or deemed to have been made or begun, under any enactment repealed by this Act, being an application or proceeding which is pending at the commencement of this Act, shall be deemed to have been made or begun under the corresponding provision of this Act.E+W

3Nothing in Part I of this Act shall apply in relation to any petition for divorce or judicial separation presented before 1st January 1971 and notwithstanding any repeal or amendment made by this Act the M13Matrimonial Causes Act 1965 (hereafter in this Schedule referred to as the Act of 1965) and any rules of court made for the purposes of that Act shall continue to have effect in relation to proceedings on any such petition which are pending at the commencement of this Act as they had effect immediately before the commencement of this Act.E+W

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Marginal Citations

4Notwithstanding any repeal or amendment made by this Act, the Act of 1965 and any rules of court made for the purposes of that Act shall continue to have effect in relation to—E+W

(a)any proceedings on a petition for damages for adultery or for restitution of conjugal rights presented before 1st January 1971 which are pending at the commencement of this Act, and

(b)any proceedings for relief under section 21 or 34(1)(c) of the Act of 1965 brought in connection with proceedings on a petition for restitution of conjugal rights so presented, being proceedings for relief which are themselves pending at the commencement of this Act,

as they had effect immediately before the commencement of this Act; and nothing in Schedule 2 below shall affect the operation of any other enactment in relation to any such proceedings.

5Nothing in any repeal made by this Act shall affect any order made, or deemed to have been made, under the Act of 1965 which was continued in force by paragraph 1 of Schedule 1 to the M14Matrimonial Proceedings and Property Act 1970 notwithstanding the repeal by the last-mentioned Act of the provision of the Act of 1965 under which the order had effect, and every such order shall, if in force at the commencement of this Act, continue in force subject to the provisions of this Act.E+W

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Marginal Citations

6Nothing in sections 11 to 14 or 16 of this Act affects any law or custom relating to the marriage of members of the Royal Family.E+W

7Nothing in section 50(1)(a) or (c) above affects—E+W

(a)any rules of court made under the M15Supreme Court of Judicature (Consolidation) Act 1925 for the purposes of proceedings under section 39 of the Act of 1965 and having effect by virtue of paragraph 1(b) above in relation to proceedings under section 45 above;

(b)any rules of court so made for the purposes of proceedings under section 17 of the M16Married Women’s Property Act 1882 or under section 1 of the M17Matrimonial Homes Act 1967; or

(c)any rules of court so made for the purposes of the exercise by the High Court of its jurisdiction to grant declaratory relief in proceedings in which the only substantive relief sought is a declaration with respect to a person’s matrimonial status;

but rules of court made under section 50 may revoke any rules of court made under the said Act of 1925 in so far as they apply for any such purposes.

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Marginal Citations

Transitional provisions derived from the Act of 1965E+W

8Any agreement between the petitioner and the respondent to live separate and apart, whether or not made in writing, shall be disregarded for the purposes of section 1(2)(c) above (including that paragraph as it applies, by virtue of section 17 above, to proceedings for judicial separation) if the agreement was entered into before 1st January 1938 and either—E+W

(a)at the time when the agreement was made the respondent had deserted the petitioner without cause; or

(b)the court is satisfied that the circumstances in which the agreement was made and the parties proceeded to live separate and apart were such as, but for the agreement, to amount to desertion of the petitioner by the respondent.

9Where the party chargeable under a maintenance agreement within the meaning of section 34 above died before 17th August 1957, then—E+W

(a)subsection (1) of that section shall not apply to the agreement unless there remained undistributed on that date assets of that party’s estate (apart from any property in which he had only a life interest) representing not less than four-fifths of the value of that estate for probate after providing for the discharge of the funeral, testamentary and administrative expenses, debts and liabilities payable thereout (other than any liability arising by virtue of that subsection); and

(b)nothing in that subsection shall render liable to recovery, or impose any liability upon the personal representatives of that party in respect of, any part of that party’s estate which had been distributed before that date.

10No right or liability shall attach by virtue of section 34(1) above in respect of any sum payable under a maintenance agreement within the meaning of that section in respect of a period before 17th August 1957.E+W

Part IIE+W Preservation for limited Purposes of certain Provisions of previous Enactments

NullityE+W

11(1)Subject to sub-paragraphs (2) and (3) below, a marriage celebrated before 1st August 1971 shall (without prejudice to any other grounds on which a marriage celebrated before that date is by law void or voidable) be voidable on the ground—E+W

(a)that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; or

(b)that at the time of the marriage either party to the marriage—

(i)was of unsound mind, or

(ii)was suffering from mental disorder within the meaning of the M18Mental Health Act 1959 of such a kind or to such an extent as to be unfitted for marriage and the procreation of children, or

(iii)was subject to recurrent attacks of insanity or epilepsy; or

(c)that the respondent was at the time of the marriage suffering from venereal disease in a communicable form; or

(d)that the respondent was at the time of the marriage pregnant by some person other than the petitioner[F190 or

(e)that an interim gender recognition certificate under the Gender Recognition Act 2004 has been issued to either party to the marriage;]

F190(2)In relation to a marriage celebrated before 1st November 1960, for heads (ii) and (iii) of sub-paragraph (1)(b) above shall be substituted the following heads—

(ii)was a mental defective within the meaning of the Mental Deficiency Acts 1913 to 1938, or

(iii)was subject to recurrent fits of insanity or epilepsy; or.

(3)The court shall not grant a decree of nullity in a case falling within sub-paragraph (1)(b), (c)or (d) above unless it is satisfied that—

(a)the petitioner was at the time of the marriage ignorant of the facts alleged; and

(b)proceedings were instituted within a year from the date of the marriage; and

(c)marital intercourse with the consent of the petitioner has not taken place since the petitioner discovered the existence of the grounds for a decree;

and where the proceedings with respect to the marriage are instituted after 31st July 1971 the application of section 13(1) above in relation to the marriage shall be without prejudice to the preceding provisions of this sub-paragraph.

[F191(3A)The court shall not grant a decree of nullity in a case falling within sub-paragraph (1)(e) above unless it is satisfied that proceedings were instituted within six months from the date of issue of the interim gender recognition certificate.]

F191(4)Nothing in this paragraph shall be construed as validating a marriage which is by law void but with respect to which a decree of nullity has not been granted.

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Amendments (Textual)

Marginal Citations

12Where a decree of nullity was granted on or before 31st July 1971 in respect of a voidable marriage, any child who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled shall be deemed to be their legitimate child.E+W

Succession on intestacy in case of judicial separationE+W

13Section 18(2) above shall not apply in a case where the death occurred before 1st August 1970, but section 20(3) of the Act of 1965 (which provides that certain property of a wife judicially separated from her husband shall devolve, on her death intestate, as if her husband had then been dead) shall continue to apply in any such case.E+W

Validation of certain void or voidable decreesE+W

14Any decree of divorce, nullity of marriage or judicial separation which, apart from this paragraph, would be void or voidable on the ground only that the provisions of section 33 of the Act of 1965 (restriction on the making of decrees of dissolution or separation where children are affected) or of section 2 of the M19Matrimonial Proceedings (Children) Act 1958 (corresponding provision replaced by section 33) had not been complied with when the decree was made absolute or granted, as the case may be, shall be deemed always to have been valid unless—E+W

(a)the court declared the decree to be void before 1st January 1971, or

(b)in proceedings for the annulment of the decree pending at that date the court has before the commencement of this Act declared or after that commencement declares the decree to be void.

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Marginal Citations

Part IIIE+W Assimilation in certain respects to Orders under this Act of Orders made, etc., under the Act of 1965, etc.

Cesser on remarriage of orders made, etc., under the Act of 1965 and recovery of sums mistakenly paid thereafterE+W

15(1)An order made, or deemed to have been made, under section 16(1)(a) or (b) of the Act of 1965 (including either of those paragraphs as applied by section 16(3) or by section 19) shall, notwithstanding anything in the order, cease to have effect on the remarriage after the commencement of this Act of the person in whose favour the order was made, except in relation to any arrears due under it on the date of the remarriage.E+W

(2)An order for the payment of alimony made, or deemed to have been made, under section 20 of the Act of 1965, and an order made, or deemed to have been made, under section 21 or 22 of that Act shall, if the marriage of the parties to the proceedings in which the order was made was or is subsequently dissolved or annulled but the order continues in force, cease to have effect on the remarriage after the commencement of this Act of the party in whose favour the order was made, except in relation to any arrears due under it on the date of the remarriage.

16Section 38 above shall apply in relation to an order made or deemed to have been made under section 16(1) (including that subsection as applied by section 16(3) and by section 19), 20(1), 21 or 22 of the Act of 1965 as it applies in relation to a periodical payments or secured periodical payments order in favour of a party to a marriage.E+W

Variation, etc., of certain orders made, etc., under the Act of 1965E+W

17(1)Subject to the provisions of this paragraph, section 31 above shall apply, as it applies to the orders mentioned in subsection (2) thereof, to an order (other than an order for the payment of a lump sum) made or deemed to have been made under any of the following provisions of the Act of 1965, that is to say—E+W

(a)section 15 (except in its application to proceedings for restitution of conjugal rights);

(b)section 16(1) (including that subsection as applied by section 16(3) and by section 19);

(c)section 20(1) and section 17(2) as applied by section 20(2);

(d)section 22;

(e)section 34(1)(a) or (b), in so far as it relates to the maintenance of a child, and section 34(3).

(2)Subject to the provisions of this paragraph, the court hearing an application for the variation of an order made or deemed to have been made under any of the provisions of the Act of 1965 mentioned in sub-paragraph (1) above shall have power to vary that order in any way in which it would have power to vary it had the order been made under the corresponding provision of Part II of this Act.

(3)Section 31, as it applies by virtue of sub-paragraph (1) above, shall have effect as if for subsections (4), (5) and (6) there were substituted the following subsections—

(4)The court shall not exercise the powers conferred by this section in relation to an order made or deemed to have been made under section 17(2) of the Act of 1965, as applied by section 20(2) of that Act, in connection with the grant of a decree of judicial separation except on an application made in proceedings—

(a)for the rescission of that decree, or

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

(5)No order for the payment of a lump sum and no property adjustment order shall be made on an application for the variation of any order made or deemed to have been made under section 16(1) (including that subsection as applied by section 16(3) or by section 19), 20(1), 22, 34(1)(a) or (b) or 34(3) of the Act of 1965.

(6)In the case of an order made or deemed to have been made under section 16(1) (including that subsection as applied by section 16(3) or by section 19), 22 or 34(3) of the Act of 1965 and requiring a party to a marriage to secure an annual sum or periodical payments to any other person, an application under this section relating to that order may be made after the death of the person liable to make payments under the order by the person entitled to the payments 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;

and in that section, as it so applies, the reference in subsection (8) to a secured periodical payments order shall be construed as a reference to any such order as is mentioned in subsection (6).

(4)In relation to an order made before 16th December 1949 on or after granting a decree of divorce or nullity of marriage and deemed, by virtue of paragraph 1 of Schedule 1 to the Act of 1965, to have been made under section 16(1)(a) of that Act (secured provision), the powers conferred by this paragraph shall not be exercised unless the court is satisfied that the case is one of exceptional hardship which cannot be met by discharge, variation or suspension of any other order made by reference to that decree, being an order made, or deemed by virtue of that paragraph to have been made, under section 16(1)(b) of that Act (unsecured periodical payments).

18(1)Subsections (1) and (3) of section 31 above shall apply to an order made or deemed to have been made under section 15 of the Act of 1965 in its application to proceedings for restitution of conjugal rights, or under section 21 or 34(1)(c) of that Act, as they apply to the orders mentioned in subsection (2) of section 31.E+W

(2)In exercising the powers conferred by virtue of this paragraph the court shall have regard to all the circumstances of the case, including 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.

19Section 42(7) above shall apply in relation to an order for the custody or education of a child made or deemed to have been made under section 34 of the Act of 1965, and in relation to an order for the custody of a child made or deemed to have been made under section 35 of that Act, as it applies in relation to an order made under section 42.E+W

Orders made under the Act of 1965 to count as orders under this Act for certain purposesE+W

20The power of the court under section 23(1) or (2)(a) or 42(1)(a) above to make from time to time a financial provision order or, as the case may be, an order for custody or education in relation to a child of the family shall be exercisable notwithstanding the making of a previous order or orders in relation to the child under section 34(1)(a) of the Act of 1965; and where the court has made an order in relation to a child under section 34(1)(b) of that Act sections 23(4) and 42(6) above shall apply respectively in relation to that child as if the order were an order made under section 23(2)(b) or section 42(1)(b), as the case may be.E+W

21Where the court has made an order under section 22 of the Act of 1965 the court shall have the like power to make orders under section 42 above with respect to the custody of any child of the family as it has where it makes an order under section 27 above.E+W

Application of provisions of this Act with respect to enforcement of arrears and recovery of excessive payments to certain orders made, etc., under the Act of 1965E+W

22Section 32 above shall apply in relation to the enforcement, by proceedings begun after 1st January 1971 (whether before or after the commencement of this Act), of the payment of arrears due under an order made, or deemed to have been made, under any of the following provisions of the Act of 1965, that is to say—E+W

(a)section 15;

(b)section 16(1) (including that subsection as applied by section 16(3) and by section 19);

(c)section 20(1);

(d)section 21;

(e)section 22;

(f)section 34(1), in so far as it relates to the maintenance of a child, and section 34(3);

as it applies in relation to the enforcement of the payment of arrears due under any such order as is mentioned in that section.

23Section 33 above shall apply to an order (other than an order for the payment of a lump sum) made or deemed to have been made under any of the provisions of the Act of 1965 mentioned in paragraph 22 above as it applies to the orders mentioned in section 33(2).E+W

Avoidance under this Act of transactions intended to defeat claims for relief and relief granted under the Act of 1965E+W

24(1)Section 37 above shall apply in relation to proceedings for relief under section 21 or 34(1)(c) of the Act of 1965 continuing by virtue of paragraph 4(b) above as it applies in relation to proceedings for relief under any of the provisions of this Act specified in section 37(1).E+W

(2)Without prejudice to sub-paragraph (1) above, section 37 shall also apply where an order has been obtained under any of the following provisions of the Act of 1965, that is to say—

(a)section 16(1) (including that subsection as applied by section 16(3) and by section 19);

(b)section 17(2) (including that subsection as applied by section 20(2));

(c)section 20(1);

(d)section 21;

(e)section 22;

(f)section 24;

(g)section 31;

(h)section 34(1), in so far as it relates to the maintenance of a child, and section 34(3);

(i)section 35;

as it applies where an order has been obtained under any of the provisions of this Act specified in section 37(1).

Care and supervision of childrenE+W

25(1)Sections 43 and 44 above shall apply where the court has jurisdiction by virtue of paragraph 4(b) above to make an order for the custody of a child under section 34(1)(c) of the Act of 1965 as they apply where the court has jurisdiction to make an order for custody under Part III of this Act, but as if the reference in section 43(2) to a financial provision order in favour of the child were a reference to an order for payments for the maintenance and education of the child.E+W

(2)Without prejudice to the effect of paragraph 1(a) of this Schedule in relation to an order made under section 36 or 37 of the Act of 1965 which could have been made under section 43 or, as the case may be, section 44 above, any order made under section 36 or 37 of that Act by virtue of the jurisdiction of the court to make an order for the custody of a child under section 34(1)(c) of that Act shall be deemed to have been made under section 43 or 44 above, as the case may require.

26Section 44(4) above shall apply in relation to the jurisdiction possessed by a court to vary an order made or deemed to have been made with respect to a child’s custody, maintenance or education under Part III of the Act of 1965 as it applies in relation to the jurisdiction possessed by a court to vary any financial provision order in a child’s favour and any order made with respect to a child’s custody or education under Part III of this Act.E+W

X1SCHEDULE 2E+W+S+N.I. Consequential Amendments

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Editorial Information

X1The text of Sch. 2 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and, except as specified, does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

F1921. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

2In section 2(1) of the M20Limitation (Enemies and War Prisoners) Act 1945, in the definition of “statute of limitation” for the words “subsection (1) of section seven of the Matrimonial Causes Act 1937” there shall be substituted the words “ section 13(2) of the Matrimonial Causes Act 1973 and paragraph 11(3) of Schedule 1 to that Act ”.E+W

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Marginal Citations

3(1)In section 16 of the M21Maintenance Orders Act 1950 (orders enforceable under Part II of that Act)—E+W+S+N.I.

(a)in subsection (2)(a) for sub-paragraph (i) there shall be substituted the following sub-paragraph:—

(i)sections 15 to 17, 19 to 22, 30, 34 and 35 of the Matrimonial Causes Act 1965 and sections 22, 23(1), (2) and (4) and 27 of the Matrimonial Causes Act 1973; and

(b)in subsection (2)(c), for sub-paragraph (v) there shall be substituted the following sub-paragraph:—

(v)any enactment of the Parliament of Northern Ireland containing provisions corresponding with section 22(1), 34 or 35 of the Matrimonial Causes Act 1965, with section 22, 23(1), (2) or (4) or 27 of the Matrimonial Causes Act 1973, or with section 12(2) of the Guardianship of Minors Act 1971.

(2)Sub-paragraph (1) above extends to Scotland and Northern Ireland, and the references to section 16(2)(c) of the M22Maintenance Orders Act 1950 in paragraph 8 of Schedule 8 to the M23Administration of Justice Act 1970 and paragraph 9 of Schedule 1 to the M24Attachment of Earnings Act 1971 shall be construed as references to section 16(2)(c) as amended by sub-paragraph (1)(b) above.

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Marginal Citations

4In section 109(2) of the M25County Courts Act 1959 (proceedings in which appeals on questions of fact are to lie) the following paragraph shall be inserted after paragraph (f) (in place of the paragraph inserted by section 34(2) of the M26 Matrimonial Proceedings and Property Act 1970):—E+W

(g)any proceedings on an application under section 13A of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 or under section 33, 36 or 38 of the Matrimonial Causes Act 1973.

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Marginal Citations

5F193(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

(2)In section 42 of that Act (provisions as to condonation), at the beginning of subsections (1) and (3) there shall be inserted the words “ For the purposes of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 ”.

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Amendments (Textual)

F1946. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

7(1)In subsection (1) of section 2 of the M27Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 (restriction of publicity for certain proceedings) for the words in paragraph (a) “section 39 of the Matrimonial Causes Act 1965” there shall be substituted the words “ section 45 of the Matrimonial Causes Act 1973 ”, the following paragraph shall be substituted for the paragraph (c) inserted in the subsection by paragraph 3 of Schedule 2 to the Matrimonial Proceedings and Property Act 1970:—E+W

(c)proceedings under section 27 of the Matrimonial Causes Act 1973 (which relates to proceedings by a wife against her husband, or by a husband against his wife, for financial provision) and any proceedings for the discharge or variation of an order made under that section or for the temporary suspension of any provision of any such order or the revival of the operation of any provision so suspended;

subsection (2) of that section shall be omitted, and the references in subsection (3) of that section to subsection (1) and to subsection (1)(a) thereof shall be construed as references to subsection (1) and to subsection (1)(a) as they respectively have effect by virtue of this sub-paragraph.

F195(2),(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Marginal Citations

8In section 7 of the M28Family Law Reform Act 1969 (committal of wards of court to care of local authority and supervision of wards of court)—E+W

(a)in subsection (3), for the words “section 36 of the Matrimonial Causes Act 1965” there shall be substituted the words “ section 43 of the Matrimonial Causes Act 1973 ”;

(b)in subsection (4), for the words from “subsections (2)” to “1965” there shall be substituted the words “ section 44(2) of the Matrimonial Causes Act 1973 ”.

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F1969. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

10F197(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

(2)In Schedule 8 to that Act (as it applies to define maintenance orders both for the purposes of Part II of that Act and for the purposes of the M29Maintenance Orders Act 1958) the following paragraph shall be inserted after paragraph 2:—

2AAn order for periodical or other payments made, or having effect as if made, under Part II of the Matrimonial Causes Act 1973.

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F19811. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F19912. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

13In Schedule 1 to the M30Attachment of Earnings Act 1971 (maintenance orders to which the Act applies) for paragraph 3 there shall be substituted the following paragraph—E+W

3An order for periodical or other payments made, or having effect as if made, under Part II of the Matrimonial Causes Act 1973.

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F200SCHEDULE 3E+W

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Amendments (Textual)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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