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Commencement Orders bringing legislation that affects this Act into force:

SCHEDULES

Sections 3(2) and 5(3)

SCHEDULE 1E+WProhibited degrees of relationship: England and Wales

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Modifications etc. (not altering text)

Part 1 E+WThe prohibitions

Absolute prohibitionsE+W

1(1)Two people are within prohibited degrees of relationship if one falls within the list below in relation to the other.E+W

  • Adoptive child

  • Adoptive parent

  • Child

  • Former adoptive child

  • Former adoptive parent

  • Grandparent

  • Grandchild

  • Parent

  • Parent’s sibling

  • Sibling

  • Sibling’s child

(2)In the list “sibling” means a brother, sister, half-brother or half-sister.

Qualified prohibitionsE+W

2(1)Two people are within prohibited degrees of relationship if one of them falls within the list below in relation to the other, unless—E+W

(a)both of them have reached 21 at the time when they register as civil partners of each other, and

(b)the younger has not at any time before reaching 18 been a child of the family in relation to the other.

  • Child of former civil partner

  • Child of former spouse

  • Former civil partner of grandparent

  • Former civil partner of parent

  • Former spouse of grandparent

  • Former spouse of parent

  • Grandchild of former civil partner

  • Grandchild of former spouse

(2)Child of the family”, in relation to another person, means a person who—

(a)has lived in the same household as that other person, and

(b)has been treated by that other person as a child of his family.

Prospective

3Two people are within prohibited degrees of relationship if one falls within column 1 of the table below in relation to the other, unless—E+W

(a)both of them have reached 21 at the time when they register as civil partners of each other, and

(b)the persons who fall within column 2 are dead.

RelationshipRelevant deaths
Former civil partner of child

The child

The child’s other parent

Former spouse of child

The child

The child’s other parent

Parent of former civil partner

The former civil partner

The former civil partner’s other parent

Parent of former spouse

The former spouse

The former spouse’s other parent

Part 2 E+WSpecial provisions relating to qualified prohibitions

Provisions relating to paragraph 2E+W

4Paragraphs 5 to 7 apply where two people are subject to paragraph 2 but intend to register as civil partners of each other by signing a civil partnership schedule.E+W

5(1)The fact that a notice of proposed civil partnership has been given must not be recorded in the register unless the registration authority—E+W

(a)is satisfied by the production of evidence that both the proposed civil partners have reached 21, and

(b)has received a declaration made by each of the proposed civil partners—

(i)specifying their affinal relationship, and

(ii)declaring that the younger of them has not at any time before reaching 18 been a child of the family in relation to the other.

(2)Sub-paragraph (1) does not apply if a declaration is obtained under paragraph 7.

(3)A declaration under sub-paragraph (1)(b) must contain such information and must be signed and attested in such manner as may be prescribed by regulations.

(4)The fact that a registration authority has received a declaration under sub-paragraph (1)(b) must be recorded in the register.

(5)A declaration under sub-paragraph (1)(b) must be filed and kept by the registration authority.

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Commencement Information

I1Sch. 1 para. 5 wholly in force at 5.12.2005; Sch. 1 para. 5 not in force at Royal Assent see s. 263; Sch. 1 para. 5(3) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 1 para. 5 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

6(1)Sub-paragraph (2) applies if—E+W

(a)a registration authority receives from a person who is not one of the proposed civil partners a written statement signed by that person which alleges that a declaration made under paragraph 5 is false in a material particular, and

(b)the register shows that such a statement has been received.

(2)The registration authority in whose area it is proposed that the registration take place must not issue a civil partnership schedule unless a High Court declaration is obtained under paragraph 7.

7(1)Either of the proposed civil partners may apply to the High Court for a declaration that, given that—E+W

(a)both of them have reached 21, and

(b)the younger of those persons has not at any time before reaching 18 been a child of the family in relation to the other,

there is no impediment of affinity to the formation of the civil partnership.

(2)Such an application may be made whether or not any statement has been received by the registration authority under paragraph 6.

8Section 13 (objection to proposed civil partnership) does not apply in relation to a civil partnership to which paragraphs 5 to 7 apply, except so far as an objection to the issue of a civil partnership schedule is made under that section on a ground other than the affinity between the proposed civil partners.E+W

Prospective

Provisions relating to paragraph 3E+W

9(1)This paragraph applies where two people are subject to paragraph 3 but intend to register as civil partners of each other by signing a civil partnership schedule.E+W

(2)The fact that a notice of proposed civil partnership has been given must not be recorded in the register unless the registration authority is satisfied by the production of evidence—

(a)that both the proposed civil partners have reached 21, and

(b)that the persons referred to in paragraph 3(b) are dead.

Section 4(2) and 5(3)

SCHEDULE 2E+WCivil partnerships of persons under 18: England and Wales

Part 1 E+WAppropriate persons

1Column 2 of the table specifies the appropriate persons (or person) to give consent to a child whose circumstances fall within column 1 and who intends to register as the civil partner of another—E+W

CaseAppropriate persons
1 The circumstances do not fall within any of items 2 to 8.

Each of the following—

(a)

any parent of the child who has parental responsibility for him, and

(b)

any guardian of the child.

2 A special guardianship order is in force with respect to the child and the circumstances do not fall within any of items 3 to 7.Each of the child’s special guardians.
3 A care order has effect with respect to the child and the circumstances do not fall within item 5.

Each of the following—

(a)

the local authority designated in the order, and

(b)

each parent, guardian or special guardian (in so far as their parental responsibility has not been restricted under section 33(3) of the 1989 Act).

4 A residence order has effect with respect to the child and the circumstances do not fall within item 5.Each of the persons with whom the child lives, or is to live, as a result of the order.
5 An adoption agency is authorised to place the child for adoption under section 19 of the 2002 Act.

Either—

(a)

the adoption agency, or

(b)

if a care order has effect with respect to the child, the local authority designated in the order.

6 A placement order is in force with respect to the child.The local authority authorised by the placement order to place the child for adoption.
7 The child has been placed for adoption with prospective adopters.The prospective adopters (in so far as their parental responsibility has not been restricted under section 25(4) of the 2002 Act), in addition to any person specified in relation to item 5 or 6.
8 The circumstances do not fall within any of items 2 to 7, but a residence order was in force with respect to the child immediately before he reached 16.The persons with whom the child lived, or was to live, as a result of the order.

2In the table—E+W

  • the 1989 Act” means the Children Act 1989 (c. 41) and “guardian of a child”, “parental responsibility”, “residence order”, “special guardian”, “special guardianship order” and “care order” have the same meaning as in that Act;

  • the 2002 Act” means the Adoption and Children Act 2002 (c. 38) and “adoption agency”, “placed for adoption”, “placement order” and “local authority” have the same meaning as in that Act;

  • appropriate local authority” means the local authority authorised by the placement order to place the child for adoption.

Part 2 E+WObtaining consent: general

Consent of appropriate person unobtainableE+W

3(1)This paragraph applies if—E+W

(a)a child and another person intend to register as civil partners of each other under any procedure other than the special procedure, and

(b)the registration authority to whom the child gives a notice of proposed civil partnership is satisfied that the consent of a person whose consent is required (“A”) cannot be obtained because A is absent, inaccessible or under a disability.

(2)If there is any other person whose consent is also required, the registration authority must dispense with the need for A’s consent.

(3)If no other person’s consent is required—

(a)the Registrar General may dispense with the need for any consent, or

(b)the court may, on an application being made to it, consent to the child registering as the civil partner of the person mentioned in sub-paragraph (1)(a).

(4)The consent of the court under sub-paragraph (3)(b) has the same effect as if it had been given by A.

Consent of appropriate person refusedE+W

4(1)This paragraph applies if—E+W

(a)a child and another person intend to register as civil partners of each other under any procedure other than the special procedure, and

(b)any person whose consent is required refuses his consent.

(2)The court may, on an application being made to it, consent to the child registering as the civil partner of the person mentioned in sub-paragraph (1)(a).

(3)The consent of the court under sub-paragraph (2) has the same effect as if it had been given by the person who has refused his consent.

DeclarationE+W

5If one of the proposed civil partners is a child and is not a surviving civil partner, the necessary declaration under section 8 must also—E+W

(a)state in relation to each appropriate person—

(i)that that person’s consent has been obtained,

(ii)that the need to obtain that person’s consent has been dispensed with under paragraph 3, or

(iii)that the court has given consent under paragraph 3 or 4, or

(b)state that no person exists whose consent is required to a civil partnership between the child and another person.

Forbidding proposed civil partnershipE+W

6(1)This paragraph applies if it has been recorded in the register that a notice of proposed civil partnership between a child and another person has been given.E+W

(2)Any person whose consent is required to a child and another person registering as civil partners of each other may forbid the issue of a civil partnership schedule by giving any registration authority written notice that he forbids it.

(3)A notice under sub-paragraph (2) must specify—

(a)the name of the person giving it,

(b)his place of residence, and

(c)the capacity, in relation to either of the proposed civil partners, in which he forbids the issue of the civil partnership schedule.

(4)On receiving the notice, the registration authority must as soon as is practicable record in the register the fact that the issue of a civil partnership schedule has been forbidden.

(5)If the issue of a civil partnership schedule has been forbidden under this paragraph, the notice of proposed civil partnership and all proceedings on it are void.

(6)Sub-paragraphs (2) and (5) do not apply if the court has given its consent under paragraph 3 or 4.

EvidenceE+W

7(1)This paragraph applies if, for the purpose of obtaining a civil partnership schedule, a person declares that the consent of any person or persons whose consent is required under section 4 has been given.E+W

(2)The registration authority may refuse to issue the civil partnership schedule unless satisfied by the production of written evidence that the consent of that person or those persons has in fact been given.

Issue of civil partnership scheduleE+W

8The duty in section 14(1) to issue a civil partnership schedule does not apply if its issue has been forbidden under paragraph 6.E+W

9If a proposed civil partnership is between a child and another person, the civil partnership schedule must contain a statement that the issue of the civil partnership schedule has not been forbidden under paragraph 6.E+W

Part 3 E+WObtaining consent: special procedure

Consent of appropriate person unobtainable or refusedE+W

10(1)Sub-paragraph (2) applies if—E+W

(a)a child and another person intend to register as civil partners of each other under the special procedure, and

(b)the Registrar General is satisfied that the consent of a person (“A”) whose consent is required cannot be obtained because A is absent, inaccessible, or under a disability.

(2)If this sub-paragraph applies—

(a)the Registrar General may dispense with the need for A’s consent (whether or not there is any other person whose consent is also required), or

(b)the court may, on application being made, consent to the child registering as the civil partner of the person mentioned in sub-paragraph (1)(a).

(3)The consent of the court under sub-paragraph (2)(b) has the same effect as if it had been given by A.

(4)Sub-paragraph (5) applies if—

(a)a child and another person intend to register as civil partners of each other under the special procedure, and

(b)any person whose consent is required refuses his consent.

(5)The court may, on application being made, consent to the child registering as the civil partner of the person mentioned in sub-paragraph (4)(a).

(6)The consent of the court under sub-paragraph (5) has the same effect as if it had been given by the person who has refused his consent.

DeclarationE+W

11If one of the proposed civil partners is a child and is not a surviving civil partner, the necessary declaration under section 8 must also—E+W

(a)state in relation to each appropriate person—

(i)that that person’s consent has been obtained,

(ii)that the need to obtain that person’s consent has been dispensed with under paragraph 10(2), or

(iii)that the court has given consent under paragraph 10(2) or (5), or

(b)state that no person exists whose consent is required to a civil partnership between the child and another person.

Forbidding proposed civil partnershipE+W

12Paragraph 6 applies in relation to the special procedure as if—E+W

(a)any reference to forbidding the issue of a civil partnership schedule were a reference to forbidding the Registrar General to give authority for the issue of his licence, and

(b)sub-paragraph (6) referred to the court giving its consent under paragraph 10(2) or (5).

EvidenceE+W

13(1)This paragraph applies—E+W

(a)if a child and another person intend to register as civil partners of each other under the special procedure, and

(b)the consent of any person (“A”) is required to the child registering as the civil partner of that person.

(2)The person giving the notice (under section 21) of proposed civil partnership to the registration authority must produce to the authority such evidence as the Registrar General may require to satisfy him that A’s consent has in fact been given.

(3)The power to require evidence under sub-paragraph (2) is in addition to the power to require evidence under section 22.

Issue of Registrar General’s licenceE+W

14The duty of the Registrar General under section 25(3)(b) to give authority for the issue of his licence does not apply if he has been forbidden to do so by virtue of paragraph 12.E+W

Part 4 E+WProvisions relating to the court

15(1)For the purposes of Parts 2 and 3 of this Schedule, “the court” means—E+W

(a)the High Court,

(b)the county court of the district in which any applicant or respondent resides, or

(c)a magistrates' court acting in the local justice area in which any applicant or respondent resides.

(2)Rules of court may be made for enabling applications under Part 2 or 3 of this Schedule—

(a)if made to the High Court, to be heard in chambers;

(b)if made to the county court, to be heard and determined by the district judge subject to appeal to the judge;

(c)if made to a magistrates' court, to be heard and determined otherwise than in open court.

(3)Rules of court must provide that, where an application is made in consequence of a refusal to give consent, notice of the application is to be served on the person who has refused consent.

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Commencement Information

I2Sch. 2 para. 15 wholly in force at 5.12.2005; Sch. 2 para. 15 not in force at Royal Assent see s. 263; Sch. 2 para. 15(2)(3) in force at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 2 para. 15(1) in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Section 5(2)

SCHEDULE 3E+WRegistration by former spouses one of whom has changed sex

Application of ScheduleE+W

1This Schedule applies if—E+W

(a)a court—

(i)makes absolute a decree of nullity granted on the ground that an interim gender recognition certificate has been issued to a party to the marriage, or

(ii)(in Scotland) grants a decree of divorce on that ground,

and, on doing so, issues a full gender recognition certificate (under section 5(1) of the Gender Recognition Act 2004 (c. 7)) to that party, and

(b)the parties wish to register in England or Wales as civil partners of each other without being delayed by the waiting period.

The relevant periodE+W

2For the purposes of this Schedule the relevant period is the period—E+W

(a)beginning with the issue of the full gender recognition certificate, and

(b)ending at the end of 1 month from the day on which it is issued.

Modifications of standard procedure and procedures for house-bound and detained personsE+W

3If—E+W

(a)each of the parties gives a notice of proposed civil partnership during the relevant period, and

(b)on doing so, each makes an election under this paragraph,

Chapter 1 of Part 2 applies with the modifications given in paragraphs 4 to 6.

4(1)Omit—E+W

(a)section 10 (proposed civil partnership to be publicised);

(b)section 11 (meaning of “the waiting period”);

(c)section 12 (power to shorten the waiting period).

(2)In section 14 (issue of civil partnership schedule), for subsection (1) substitute—

(1)As soon as the notices of proposed civil partnership have been given, the registration authority in whose area it is proposed that the registration take place must, at the request of one or both of the proposed civil partners, issue a document to be known as a “civil partnership schedule”.

(3)For section 17 (period during which registration may take place) substitute—

17Period during which registration may take place

(1)The proposed civil partners may register as civil partners by signing the civil partnership schedule at any time during the applicable period.

(2)If they do not register as civil partners by signing the civil partnership schedule before the end of the applicable period—

(a)the notices of proposed civil partnership and the civil partnership schedule are void, and

(b)no civil partnership registrar may officiate at the signing of the civil partnership schedule by them.

(3)The applicable period, in relation to two people registering as civil partners of each other, is the period of 1 month beginning with—

(a)the day on which the notices of proposed civil partnership are given, or

(b)if the notices are not given on the same day, the earlier of those days.

5In section 18 (house-bound persons), in subsection (3)—E+W

(a)treat the reference to the standard procedure as a reference to the standard procedure as modified by this Schedule, and

(b)omit paragraph (c) (which provides for a 3 month registration period).

6In section 19 (detained persons), in subsection (3)—E+W

(a)treat the reference to the standard procedure as a reference to the standard procedure as modified by this Schedule, and

(b)omit paragraph (c) (which provides for a 3 month registration period).

Modified procedures for certain non-residentsE+W

7(1)Sub-paragraphs (5) to (8) apply (in place of section 20) in the following [F1two] cases.E+W

(2)The first is where—

(a)two people wish to register as civil partners of each other in England and Wales, and

(b)one of them (“A”) resides in Scotland and the other (“B”) resides in England or Wales.

(3)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The [F3second] is where—

(a)two people wish to register as civil partners of each other in England and Wales, and

(b)one of them (“A”) is [F4an officer, seaman or marine borne on the books of one of Her Majesty's ships at sea] and the other (“B”) resides in England or Wales.

(5)A is not required to give a notice of proposed civil partnership to a registration authority in England or Wales in order to register in England or Wales as B’s civil partner.

[F5(6)B may make the necessary declaration without reference to A's usual place of residence for any period.]

(7)If, on giving such notice, B makes an election under this paragraph, Chapter 1 of Part 2 applies with the modifications given in paragraphs 4 to 6 and the further modifications in sub-paragraph (8).

(8)The further modifications are that—

(a)the civil partnership schedule is not to be issued by a registration authority unless A or B produces to that registration authority a certificate of no impediment issued to A under the relevant provision;

(b)the applicable period is the period of one month beginning with the day on which B’s notice is given;

(c)section 31 applies as if in subsections (1)(a) and (2)(c) for “each notice” there were substituted “ B’s notice ”.

(9)The relevant provision” means—

(a)if A resides in Scotland, section 97;

(b)F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)if A is [F7an officer, seaman or marine borne on the books of one of Her Majesty's ships at sea], section 239.

(10)F8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Section 71

SCHEDULE 4E+WWills, administration of estates and family provision

Part 1 E+WWills

1Amend the Wills Act 1837 (c. 26) as follows.E+W

2After section 18A insert—E+W

18BWill to be revoked by civil partnership

(1)Subject to subsections (2) to (6), a will is revoked by the formation of a civil partnership between the testator and another person.

(2)A disposition in a will in exercise of a power of appointment takes effect despite the formation of a subsequent civil partnership between the testator and another person unless the property so appointed would in default of appointment pass to the testator’s personal representatives.

(3)If it appears from a will—

(a)that at the time it was made the testator was expecting to form a civil partnership with a particular person, and

(b)that he intended that the will should not be revoked by the formation of the civil partnership,

the will is not revoked by its formation.

(4)Subsections (5) and (6) apply if it appears from a will—

(a)that at the time it was made the testator was expecting to form a civil partnership with a particular person, and

(b)that he intended that a disposition in the will should not be revoked by the formation of the civil partnership.

(5)The disposition takes effect despite the formation of the civil partnership.

(6)Any other disposition in the will also takes effect, unless it appears from the will that the testator intended the disposition to be revoked by the formation of the civil partnership.

18CEffect of dissolution or annulment of civil partnership on wills

(1)This section applies if, after a testator has made a will—

(a)a court of civil jurisdiction in England and Wales dissolves his civil partnership or makes a nullity order in respect of it, or

(b)his civil partnership is dissolved or annulled and the dissolution or annulment is entitled to recognition in England and Wales by virtue of Chapter 3 of Part 5 of the Civil Partnership Act 2004.

(2)Except in so far as a contrary intention appears by the will—

(a)provisions of the will appointing executors or trustees or conferring a power of appointment, if they appoint or confer the power on the former civil partner, take effect as if the former civil partner had died on the date on which the civil partnership is dissolved or annulled, and

(b)any property which, or an interest in which, is devised or bequeathed to the former civil partner shall pass as if the former civil partner had died on that date.

(3)Subsection (2)(b) does not affect any right of the former civil partner to apply for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

3The following provisions—E+W

(a)section 15 of the Wills Act 1837 (c. 26) (avoidance of gifts to attesting witnesses and their spouses), and

(b)section 1 of the Wills Act 1968 (c. 28) (restriction of operation of section 15),

apply in relation to the attestation of a will by a person to whose civil partner there is given or made any such disposition as is described in section 15 of the 1837 Act as they apply in relation to a person to whose spouse there is given or made any such disposition.

4In section 16 of the 1837 Act, after “wife or husband” insert “ or civil partner ”.E+W

5Except where a contrary intention is shown, it is presumed that if a testator—E+W

(a)devises or bequeaths property to his civil partner in terms which in themselves would give an absolute interest to the civil partner, but

(b)by the same instrument purports to give his issue an interest in the same property,

the gift to the civil partner is absolute despite the purported gift to the issue.

Part 2 E+WAdministration of estates and family provision

Public Trustee Act 1906 (c. 55)E+W

6In section 6(1), after “widower, widow” (in both places) insert “ , surviving civil partner ”.E+W

Administration of Estates Act 1925 (c. 23)E+W

7In section 46 (succession to real and personal estate on intestacy), for “husband or wife” (in each place) substitute “ spouse or civil partner ”.E+W

8(1)Amend section 47(1) (meaning of “the statutory trusts”) as follows.E+W

(2)In paragraph (i), after “or marry under that age” (in the first place) insert “ or form a civil partnership under that age ”.

(3)In that paragraph, after “or marry” (in the second place) insert “ , or form a civil partnership, ”.

(4)In paragraph (ii), after “marries” insert “ , or forms a civil partnership, ”.

9In section 47A, in subsection (1) and in the proviso to subsection (5), for “husband or wife” substitute “ spouse or civil partner ”.E+W

10In section 48(2), for “husband or wife” (in each place) substitute “ spouse or civil partner ”.E+W

11In section 51(3) (devolution of certain estates vested in infant who dies without having married and without issue), after “without having been married” insert “ or having formed a civil partnership, ”.E+W

12In section 55(1)(xviii) (which defines “valuable consideration” as including marriage), after “includes marriage,” insert “ and formation of a civil partnership, ”.E+W

Intestates' Estates Act 1952 (c. 64)E+W

13(1)Amend section 5 and Schedule 2 (rights of surviving spouse as respects the matrimonial home) as follows.E+W

(2)For “husband or wife” (in each place) substitute “ spouse or civil partner ”.

(3)In section 5, after “matrimonial” insert “ or civil partnership ”.

(4)In the heading of each—

(a)after “spouse” insert “ or civil partner ”, and

(b)after “matrimonial” insert “ or civil partnership ”.

Family Provision Act 1966 (c. 35)E+W

14In section 1(1) (fixed net sum payable to surviving spouse of person dying intestate), for “husband or wife” substitute “ spouse or civil partner ”.E+W

Inheritance (Provision for Family and Dependants) Act 1975 (c. 63)E+W

15(1)Amend section 1 (application for financial provision from deceased person’s estate) as follows.E+W

(2)For subsection (1)(a) and (b) (application may be made by spouse or by former spouse who has not remarried) substitute—

(a)the spouse or civil partner of the deceased;

(b)a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;.

(3)In subsection (1)(ba) (application may be made by person living as husband or wife of the deceased), after “subsection (1A)” insert “ or (1B) ”.

(4)In subsection (1)(d) (application may be made by child of the family), after “marriage” (in each place) insert “ or civil partnership ”.

(5)After subsection (1A) insert—

(1B)This subsection applies to a person if for the whole of the period of two years ending immediately before the date when the deceased died the person was living—

(a)in the same household as the deceased, and

(b)as the civil partner of the deceased.

(6)In subsection (2) (meaning of “reasonable financial provision”), after paragraph (a) insert—

(aa)in the case of an application made by virtue of subsection (1)(a) above by the civil partner of the deceased (except where, at the date of death, a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force in relation to the civil partnership and the separation was continuing), means such financial provision as it would be reasonable in all the circumstances of the case for a civil partner to receive, whether or not that provision is required for his or her maintenance;.

16In section 2(1) (orders which may be made on an application), after paragraph (f) insert—E+W

(g)an order varying any settlement made—

(i)during the subsistence of a civil partnership formed by the deceased, or

(ii)in anticipation of the formation of a civil partnership by the deceased,

on the civil partners (including such a settlement made by will), the variation being for the benefit of the surviving civil partner, or any child of both the civil partners, or any person who was treated by the deceased as a child of the family in relation to that civil partnership.

17(1)Amend section 3(2) (application by spouse or former spouse: matters to which court is to have regard) as follows.E+W

(2)For the words from the beginning to “1(1)(b) of this Act” substitute— “ This subsection applies, without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(a) or (b) of this Act. ”

(3)The words from “the court shall, in addition” to the end of paragraph (b) shall become a second sentence of the subsection and, in paragraph (a) of the sentence so formed, after “duration of the marriage” insert “ or civil partnership ”.

(4)The words from “in the case of an application by the wife or husband” to the end shall become a third sentence of the subsection.

(5)At the end insert the following sentence— “ In the case of an application by the civil partner of the deceased, the court shall also, unless at the date of the death a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the civil partnership, instead of being terminated by death, had been terminated by a dissolution order. ”

18In section 3(2A) (application by person living as husband or wife of deceased: matters to which court is to have regard), in paragraph (a), after “wife” insert “ or civil partner ”.E+W

19In section 6(3) and (10) (variation etc. of orders which cease on occurrence of specified event other than remarriage of former spouse), for “(other than the remarriage of a former wife or former husband)” substitute “ (other than the formation of a subsequent marriage or civil partnership by a former spouse or former civil partner) ”.E+W

20After section 14 insert—E+W

14AProvision as to cases where no financial relief was granted in proceedings for the dissolution etc. of a civil partnership

(1)Subsection (2) below applies where—

(a)a dissolution order, nullity order, separation order or presumption of death order has been made under Chapter 2 of Part 2 of the Civil Partnership Act 2004 in relation to a civil partnership,

(b)one of the civil partners dies within twelve months from the date on which the order is made, and

(c)either—

(i)an application for a financial provision order under Part 1 of Schedule 5 to that Act or a property adjustment order under Part 2 of that Schedule has not been made by the other civil partner, or

(ii)such an application has been made but the proceedings on the application have not been determined at the time of the death of the deceased.

(2)If an application for an order under section 2 of this Act is made by the surviving civil partner, the court shall, notwithstanding anything in section 1 or section 3 of this Act, have power, if it thinks it just to do so, to treat the surviving civil partner as if the order mentioned in subsection (1)(a) above had not been made.

(3)This section shall not apply in relation to a separation order unless at the date of the death of the deceased the separation order was in force and the separation was continuing.

21After section 15 insert—E+W

15ZARestriction imposed in proceedings for the dissolution etc. of a civil partnership on application under this Act

(1)On making a dissolution order, nullity order, separation order or presumption of death order under Chapter 2 of Part 2 of the Civil Partnership Act 2004, or at any time after making such an order, the court, if it considers it just to do so, may, on the application of either of the civil partners, order that the other civil partner shall not on the death of the applicant be entitled to apply for an order under section 2 of this Act.

(2)In subsection (1) above “the court” means the High Court or, where a county court has jurisdiction by virtue of Part 5 of the Matrimonial and Family Proceedings Act 1984, a county court.

(3)In the case of a dissolution order, nullity order or presumption of death order (“the main order”) an order may be made under subsection (1) above before (as well as after) the main order is made final, but if made before the main order is made final it shall not take effect unless the main order is made final.

(4)Where an order under subsection (1) above made in connection with a dissolution order, nullity order or presumption of death order has come into force with respect to a civil partner, then, on the death of the other civil partner, the court shall not entertain any application for an order under section 2 of this Act made by the surviving civil partner.

(5)Where an order under subsection (1) above made in connection with a separation order has come into force with respect to a civil partner, then, if the other civil partner dies while the separation order is in force and the separation is continuing, the court shall not entertain any application for an order under section 2 of this Act made by the surviving civil partner.

22After section 15A insert—E+W

15BRestriction imposed in proceedings under Schedule 7 to the Civil Partnership Act 2004 on application under this Act

(1)On making an order under paragraph 9 of Schedule 7 to the Civil Partnership Act 2004 (orders for financial provision, property adjustment and pension-sharing following overseas dissolution etc. of civil partnership) the court, if it considers it just to do so, may, on the application of either of the civil partners, order that the other civil partner shall not on the death of the applicant be entitled to apply for an order under section 2 of this Act.

(2)In subsection (1) above “the court” means the High Court or, where a county court has jurisdiction by virtue of Part 5 of the Matrimonial and Family Proceedings Act 1984, a county court.

(3)Where an order under subsection (1) above has been made with respect to one of the civil partners in a case where a civil partnership has been dissolved or annulled, then, on the death of the other civil partner, the court shall not entertain an application under section 2 of this Act made by the surviving civil partner.

(4)Where an order under subsection (1) above has been made with respect to one of the civil partners in a case where civil partners have been legally separated, then, if the other civil partner dies while the legal separation is in force, the court shall not entertain an application under section 2 of this Act made by the surviving civil partner.

23In section 16(1) (power to vary secured periodical payments orders)—E+W

(a)after “the Matrimonial Causes Act 1973” insert “ or Schedule 5 to the Civil Partnership Act 2004 ”, and

(b)after “that Act” insert “ of 1973 or Part 11 of that Schedule ”.

24In section 17(4) (meaning of “maintenance agreement”)—E+W

(a)for “entered into a marriage” substitute “ formed a marriage or civil partnership ”,

(b)after “of the parties to that marriage” insert “ or of the civil partners ”, and

(c)after “marriage” (in the third and fourth places) insert “ or civil partnership ”.

25After section 18 insert—E+W

18AAvailability of court’s powers under this Act in applications under paragraphs 60 and 73 of Schedule 5 to the Civil Partnership Act 2004

(1)Where—

(a)a person against whom a secured periodical payments order was made under Schedule 5 to the Civil Partnership Act 2004 has died and an application is made under paragraph 60 of that Schedule for the variation or discharge of that order or for the revival of the operation of any suspended provision of the order, or

(b)a party to a maintenance agreement within the meaning of Part 13 of that Schedule has died, the agreement being one which provides for the continuation of payments under the agreement after the death of one of the parties, and an application is made under paragraph 73 of that Schedule for the alteration of the agreement under paragraph 69 of that Schedule,

the court shall have power to direct that the application made under paragraph 60 or 73 of that Schedule shall be deemed to have been accompanied by an application for an order under section 2 of this Act.

(2)Where the court gives a direction under subsection (1) above it shall have power, in the proceedings on the application under paragraph 60 or 73 of that Schedule, to make any order which the court would have had power to make under the provisions of this Act if the application under that paragraph had been made jointly with an application for an order under section 2 of this Act; and the court shall have power to give such consequential directions as may be necessary for enabling the court to exercise any of the powers available to the court under this Act in the case of an application for an order under section 2.

(3)Where an order made under section 15ZA(1) of this Act is in force with respect to a civil partner, the court shall not give a direction under subsection (1) above with respect to any application made under paragraph 60 or 73 of that Schedule by that civil partner on the death of the other civil partner.

26(1)Amend section 19 (effect, duration and form of orders) as follows.E+W

(2)In subsection (2)(a), for “former husband or former wife” substitute “ former spouse or former civil partner ”.

(3)In subsection (2), after paragraph (b) insert or

(c)an applicant who was the civil partner of the deceased in a case where, at the date of death, a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force in relation to their civil partnership and the separation was continuing,.

(4)In that subsection, in the words after paragraph (b), for “on the remarriage of the applicant” onwards substitute “ on the formation by the applicant of a subsequent marriage or civil partnership, except in relation to any arrears due under the order on the date of the formation of the subsequent marriage or civil partnership. ”

(5)In subsection (3), after “section 15(1)” insert “ or 15ZA(1) ”.

27(1)Amend section 25 (interpretation) as follows.E+W

(2)In subsection (1), in the definition of “former wife” and “former husband”, for “ “former wife” or “former husband”” substitute “ “former spouse” ”.

(3)In that subsection, before that definition insert—

former civil partner” means a person whose civil partnership with the deceased was during the lifetime of the deceased either—

(a)dissolved or annulled by an order made under the law of any part of the British Islands, or

(b)dissolved or annulled in any country or territory outside the British Islands by a dissolution or annulment which is entitled to be recognised as valid by the law of England and Wales;.

(4)In subsection (4)—

(a)before “wife” insert “ spouse, ” and

(b)in paragraph (b), for “entered into a later marriage” substitute “ formed a subsequent marriage or civil partnership ”.

(5)For subsection (5) substitute—

(4A)For the purposes of this Act any reference to a civil partner shall be treated as including a reference to a person who in good faith formed a void civil partnership with the deceased unless either—

(a)the civil partnership between the deceased and that person was dissolved or annulled during the lifetime of the deceased and the dissolution or annulment is recognised by the law of England and Wales, or

(b)that person has during the lifetime of the deceased formed a subsequent civil partnership or marriage.

(5)Any reference in this Act to the formation of, or to a person who has formed, a subsequent marriage or civil partnership includes (as the case may be) a reference to the formation of, or to a person who has formed, a marriage or civil partnership which is by law void or voidable.

(5A)The formation of a marriage or civil partnership shall be treated for the purposes of this Act as the formation of a subsequent marriage or civil partnership, in relation to either of the spouses or civil partners, notwithstanding that the previous marriage or civil partnership of that spouse or civil partner was void or voidable.

(6)After subsection (6) insert—

(6A)Any reference in this Act to an order made under, or under any provision of, the Civil Partnership Act 2004 shall be construed as including a reference to anything which is deemed to be an order made (as the case may be) under that Act or provision.

Section 72(1)

SCHEDULE 5E+WFinancial relief in the High Court or a county court etc.

Part 1 E+WFinancial provision in connection with dissolution, nullity or separation

Circumstances in which orders under this Part may be madeE+W

1(1)The court may make any one or more of the orders set out in paragraph 2(1)—E+W

(a)on making a dissolution, nullity or separation order, or

(b)at any time afterwards.

(2)The court may make any one or more of the orders set out in paragraph 2(1)(d), (e) and (f)—

(a)in proceedings for a dissolution, nullity or separation order, before making the order;

(b)if proceedings for a dissolution, nullity or separation order are dismissed after the beginning of the trial, either straightaway or within a reasonable period after the dismissal.

(3)The power of the court to make an order under sub-paragraph (1) or (2)(a) in favour of a child of the family is exercisable from time to time.

(4)If the court makes an order in favour of a child under sub-paragraph (2)(b), it may from time to time make a further order in the child’s favour of any of the kinds set out in paragraph 2(1)(d), (e) or (f).

The orders: periodical and secured periodical payments and lump sumsE+W

2(1)The orders are—E+W

(a)an order that either civil partner must make to the other such periodical payments for such term as may be specified;

(b)an order that either civil partner must secure to the other, to the satisfaction of the court, such periodical payments for such term as may be specified;

(c)an order that either civil partner must pay to the other such lump sum or sums as may be specified;

(d)an order that one of the civil partners must make —

(i)to such person as may be specified for the benefit of a child of the family, or

(ii)to a child of the family,

such periodical payments for such term as may be specified;

(e)an order that one of the civil partners must secure—

(i)to such person as may be specified for the benefit of a child of the family, or

(ii)to a child of the family,

to the satisfaction of the court, such periodical payments for such term as may be specified;

(f)an order that one of the civil partners must pay such lump sum as may be specified—

(i)to such person as may be specified for the benefit of a child of the family, or

(ii)to a child of the family.

(2)Specified” means specified in the order.

Particular provision that may be made by lump sum ordersE+W

3(1)An order under this Part requiring one civil partner to pay the other a lump sum may be made for the purpose of enabling the other civil partner to meet any liabilities or expenses reasonably incurred by the other in maintaining—E+W

(a)himself or herself, or

(b)a child of the family,

before making an application for an order under this Part in his or her favour.

(2)An order under this Part requiring a lump sum to be paid 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 the child before making an application for an order under this Part to be met.

(3)An order under this Part for the payment of a lump sum may—

(a)provide for its payment by instalments of such amount as may be specified, and

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

(4)Sub-paragraphs (1) to (3) do not restrict the powers to make the orders set out in paragraph 2(1)(c) and (f).

(5)If the court—

(a)makes an order under this Part for the payment of a lump sum, and

(b)directs that—

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

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

it may provide for the deferred amount or the instalments to carry interest at such rate as may be specified from such date as may be specified until the date when payment of it is due.

(6)A date specified under sub-paragraph (5) must not be earlier than the date of the order.

(7)Specified” means specified in the order.

When orders under this Part may take effectE+W

4(1)If an order is made under paragraph 2(1)(a), (b) or (c) on or after making a dissolution or nullity order, neither the order nor any settlement made in pursuance of it takes effect unless the dissolution or nullity order has been made final.E+W

(2)This paragraph does not affect the power of the court to give a direction under paragraph 76 (settlement of instrument by conveyancing counsel).

Restrictions on making of orders under this PartE+W

5The power to make an order under paragraph 2(1)(d), (e) or (f) is subject to paragraph 49(1) and (5) (restrictions on orders in favour of children who have reached 18).E+W

Part 2 E+WProperty adjustment on or after dissolution, nullity or separation

Circumstances in which property adjustment orders may be madeE+W

6(1)The court may make one or more property adjustment orders—E+W

(a)on making a dissolution, nullity or separation order, or

(b)at any time afterwards.

(2)In this Schedule “property adjustment order” means a property adjustment order under this Part.

Property adjustment ordersE+W

7(1)The property adjustment orders are—E+W

(a)an order that one of the civil partners must transfer such property as may be specified, being property to which he is entitled—

(i)to the other civil partner,

(ii)to a child of the family, or

(iii)to such person as may be specified for the benefit of a child of the family;

(b)an order that a settlement of such property as may be specified, being property to which one of the civil partners is entitled, be made to the satisfaction of the court for the benefit of—

(i)the other civil partner and the children of the family, or

(ii)either or any of them;

(c)an order varying for the benefit of—

(i)the civil partners and the children of the family, or

(ii)either or any of them,

a relevant settlement;

(d)an order extinguishing or reducing the interest of either of the civil partners under a relevant settlement.

(2)The court may make a property adjustment order under sub-paragraph (1)(c) even though there are no children of the family.

(3)In this paragraph—

  • entitled” means entitled in possession or reversion,

  • relevant settlement” means, in relation to a civil partnership, a settlement made, during its subsistence or in anticipation of its formation, on the civil partners including one made by will or codicil, but not including one in the form of a pension arrangement (within the meaning of Part 4), and

  • specified” means specified in the order.

When property adjustment orders may take effectE+W

8(1)If a property adjustment order is made on or after making a dissolution or nullity order, neither the property adjustment order nor any settlement made under it takes effect unless the dissolution or nullity order has been made final.E+W

(2)This paragraph does not affect the power to give a direction under paragraph 76 (settlement of instrument by conveyancing counsel).

Restrictions on making property adjustment ordersE+W

9The power to make a property adjustment order under paragraph 7(1)(a) is subject to paragraph 49(1) and (5) (restrictions on making orders in favour of children who have reached 18).E+W

Part 3 E+WSale of property orders

Circumstances in which sale of property orders may be madeE+W

10(1)The court may make a sale of property order—E+W

(a)on making —

(i)under Part 1, a secured periodical payments order or an order for the payment of a lump sum, or

(ii)a property adjustment order, or

(b)at any time afterwards.

(2)In this Schedule “sale of property order” means a sale of property order under this Part.

Sale of property ordersE+W

11(1)A sale of property order is an order for the sale of such property as may be specified, being property in which, or in the proceeds of sale of which, either or both of the civil partners has or have a beneficial interest, either in possession or reversion.E+W

(2)A sale of property order may contain such consequential or supplementary provisions as the court thinks fit.

(3)A sale of property order may in particular 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 property to which the order relates to be offered for sale to a specified person, or class of persons.

(4)Specified” means specified in the order.

When sale of property orders may take effectE+W

12(1)If a sale of property order is made on or after the making of a dissolution or nullity order, it does not take effect unless the dissolution or nullity order has been made final.E+W

(2)Where a sale of property order is made, the court may direct that—

(a)the order, or

(b)such provision of it as the court may specify,

is not to take effect until the occurrence of an event specified by the court or the end of a period so specified.

When sale of property orders cease to have effectE+W

13If a sale of property order 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 civil partner, the order ceases to have effect—E+W

(a)on the death of the civil partner, or

(b)on the formation of a subsequent civil partnership or marriage by the civil partner.

Protection of third partiesE+W

14(1)Sub-paragraphs (2) and (3) apply if—E+W

(a)a civil partner has a beneficial interest in any property, or in the proceeds of sale of any property, and

(b)another person (“A”) who is not the other civil partner also has a beneficial interest in the property or the proceeds.

(2)Before deciding whether to make a sale of property order in relation to the property, the court must give A an opportunity to make representations with respect to the order.

(3)Any representations made by A are included among the circumstances to which the court is required to have regard under paragraph 20.

Part 4 E+WPension sharing orders on or after dissolution or nullity order

Circumstances in which pension sharing orders may be madeE+W

15(1)The court may make a pension sharing order—E+W

(a)on making a dissolution or nullity order, or

(b)at any time afterwards.

(2)In this Schedule “pension sharing order” means a pension sharing order under this Part.

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Commencement Information

I3Sch. 5 para. 15 wholly in force at 5.12.2005; Sch. 5 para. 15 not in force at Royal Assent see s. 263; Sch. 5 para. 15(2) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 5 para. 15 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Pension sharing ordersE+W

16(1)A pension sharing order is an order which—E+W

(a)provides that one civil partner's—

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

(ii)shareable state scheme rights,

are to be subject to pension sharing for the benefit of the other civil partner, and

(b)specifies the percentage value to be transferred.

(2)Shareable rights under a pension arrangement are rights in relation to which pension sharing is available under—

(a)Chapter 1 of Part 4 of the Welfare Reform and Pensions Act 1999 (c. 30), or

(b)corresponding Northern Ireland legislation.

(3)Shareable state scheme rights are rights in relation to which pension sharing is available under—

(a)Chapter 2 of Part 4 of the 1999 Act, or

(b)corresponding Northern Ireland legislation.

(4)In this Part “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—

(i)an occupational pension scheme, or

(ii)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—

(i)section 29(1)(b) of the 1999 Act, or

(ii)corresponding Northern Ireland legislation.

(5)In sub-paragraph (4)—

  • occupational pension scheme” has the same meaning as in the Pension Schemes Act 1993 (c. 48);

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

  • retirement annuity contract” means a contract or scheme approved under Chapter 3 of Part 14 of the Income and Corporation Taxes Act 1988 (c. 1).

Pension sharing orders: apportionment of chargesE+W

17If a pension sharing order relates to rights under a pension arrangement, the court may include in the order provision about the apportionment between the civil partners of any charge under—E+W

(a)section 41 of the 1999 Act (charges in respect of pension sharing costs), or

(b)corresponding Northern Ireland legislation.

Restrictions on making of pension sharing ordersE+W

18(1)A pension sharing order may not be made in relation to a pension arrangement which—E+W

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

(b)has been the subject of pension sharing between the civil partners.

(2)A pension sharing order 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 civil partnership, or

(b)such rights have been the subject of pension sharing between the civil partners.

(3)A pension sharing order 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 Part 6 which relates to benefits or future benefits to which that person is entitled under the pension arrangement.

When pension sharing orders may take effectE+W

19(1)A pension sharing order is not to take effect unless the dissolution or nullity order on or after which it is made has been made final.E+W

(2)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.

(3)The power to make regulations under sub-paragraph (2) is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

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Commencement Information

I4Sch. 5 para. 19 wholly in force at 5.12.2005; Sch. 5 para. 19 not in force at Royal Assent see s. 263; Sch. 5 para. 19(2)(3) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 5 para. 19 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

[F9Part 4A E+WPension compensation sharing orders on or after dissolution or nullity order

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F9Sch. 5 Pt. 4A inserted (6.3.2011 for specified purposes otherwise 6.4.2011) by Pensions Act 2008 (c. 30), ss. 120, 149, Sch. 6 para. 15; S.I. 2011/664, art. 2(2)(3), Sch.

Circumstances in which pension compensation sharing orders may be madeE+W

19A(1)The court may make a pension compensation sharing order—

(a)on making a dissolution or nullity order, or

(b)at any time afterwards.

(2)In this Schedule “pension compensation sharing order” means a pension compensation sharing order under this Part.

Pension compensation sharing ordersE+W

19B(1)A pension compensation sharing order is an order which—

(a)provides that one civil partner'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 civil partner, and

(b)specifies the percentage value to be transferred.

(2)Shareable rights to PPF compensation are rights in relation to which pension compensation sharing is available under—

(a)Chapter 1 of Part 3 of the Pensions Act 2008, or

(b)corresponding Northern Ireland legislation.

(3)In sub-paragraph (1) “specified” means specified in the order.

Pension compensation sharing orders: apportionment of chargesE+W

19CThe court may include in a pension compensation sharing order provision about the apportionment between the civil partners of any charge under—

(a)section 117 of the Pensions Act 2008 (charges in respect of pension compensation sharing costs), or

(b)corresponding Northern Ireland legislation.

Restrictions on making pension compensation sharing ordersE+W

19D(1)A pension compensation sharing order 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 civil partners,

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

(d)are or have been the subject of pension compensation sharing between the civil partners.

(2)For the purposes of sub-paragraph (1)(a), rights to PPF compensation “are the subject of pension attachment” if any of the following three conditions is met.

(3)The first condition is that—

(a)the rights derive from rights under a pension scheme in relation to which an order was made under Part 1 imposing a requirement by virtue of paragraph 25(2), and

(b)that order, as modified under paragraph 31, remains in force.

(4)The second condition is that—

(a)the rights derive from rights under a pension scheme in relation to which an order was made under Part 1 imposing a requirement by virtue of paragraph 25(5), and

(b)that order—

(i)has been complied with, or

(ii)has not been complied with and, as modified under paragraph 32, remains in force.

(5)The third condition is that—

(a)the rights derive from rights under a pension scheme in relation to which an order was made under Part 1 imposing a requirement by virtue of paragraph 26, and

(b)that order remains in force.

(6)For the purposes of sub-paragraph (1)(b), rights under a pension scheme “were the subject of pension sharing between the civil partners” if the rights were at any time the subject of a pension sharing order in relation to the civil partnership or a previous civil partnership between the same parties.

(7)For the purposes of sub-paragraph (1)(c), rights to PPF compensation “are the subject of pension compensation attachment” if there is in force a requirement imposed by virtue of Part 6 relating to them.

(8)For the purposes of sub-paragraph (1)(d), rights to PPF compensation “are or have been the subject of pension compensation sharing between the civil partners” if they are or have ever been the subject of a pension compensation sharing order in relation to the civil partnership or a previous civil partnership between the same parties.

When pension compensation sharing orders may take effectE+W

19E(1)A pension compensation sharing order is not to take effect unless the dissolution or nullity order on or after which it is made has been made final.

(2)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.

(3)The power to make regulations under sub-paragraph (2) is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

InterpretationE+W

19FIn this Schedule—

  • 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 sharing) 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.]

Part 5 E+WMatters to which court is to have regard under Parts 1 to [F104A]

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Amendments (Textual)

GeneralE+W

20The court in deciding—E+W

(a)whether to exercise its powers under—

(i)Part 1 (financial provision on dissolution etc.),

(ii)Part 2 (property adjustment orders),

(iii)Part 3 (sale of property orders), F11. . .

(iv)any provision of Part 4 (pension sharing orders) other than paragraph 17 (apportionment of charges), [F12or]

[F13(v)any provision of Part 4A (pension compensation sharing orders) other than paragraph 19C (apportionment of charges), and]

(b)if so, in what way,

must have regard to all the circumstances of the case, giving first consideration to the welfare, while under 18, of any child of the family who has not reached 18.

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Amendments (Textual)

Particular matters to be taken into account when exercising powers in relation to civil partnersE+W

21(1)This paragraph applies to the exercise by the court in relation to a civil partner of its powers under—E+W

(a)Part 1 (financial provision on dissolution etc.) by virtue of paragraph 2(1)(a), (b) or (c),

(b)Part 2 (property adjustment orders),

(c)Part 3 (sale of property orders), F14. . .

(d)Part 4 (pension sharing orders) [F15, or]

[F16(e)Part 4A (pension compensation sharing orders).]

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

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

(i)has, or

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

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

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

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

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

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

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

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

(h)in the case of proceedings for a dissolution or nullity order, the value to each civil partner of any benefit which, because of the dissolution or annulment of the civil partnership, that civil partner will lose the chance of acquiring.

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Amendments (Textual)

Modifications etc. (not altering text)

Particular matters to be taken into account when exercising powers in relation to childrenE+W

22(1)This paragraph applies to the exercise by the court in relation to a child of the family of its powers under—E+W

(a)Part 1 (financial provision on dissolution etc.) by virtue of paragraph 2(1)(d), (e) or (f)),

(b)Part 2 (property adjustment orders), or

(c)Part 3 (sale of property orders).

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

(a)the financial needs of the child;

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

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

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

(e)the considerations mentioned in relation to the civil partners in paragraph 21(2)(a), (b), (c) and (e).

(3)In relation to the exercise of any of those powers against a civil partner (“A”) in favour of a child of the family who is not A’s child, the court must also have regard to—

(a)whether A has assumed any responsibility for the child’s maintenance;

(b)if so, the extent to which, and the basis upon which, A assumed such responsibility and the length of time for which A discharged such responsibility;

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

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

Terminating financial obligationsE+W

23(1)Sub-paragraphs (2) and (3) apply if, on or after the making of a dissolution or nullity order, the court decides to exercise its powers under—E+W

(a)Part 1 (financial provision on dissolution etc.) by virtue of paragraph 2(1)(a), (b) or (c),

(b)Part 2 (property adjustment orders),

(c)Part 3 (sale of property orders), F17. . .

(d)Part 4 (pension sharing orders),[F18 or]

[F19(e)Part 4A (pension compensation sharing orders),]

in favour of one of the civil partners.

(2)The court must consider whether it would be appropriate to exercise those powers in such a way that the financial obligations of each civil partner towards the other will be terminated as soon after the making of the dissolution or nullity order as the court considers just and reasonable.

(3)If the court decides to make—

(a)a periodical payments order, or

(b)a secured periodical payments order,

in favour of one of the civil partners (“A”), it must in particular consider whether it would be appropriate to require the payments to be made or secured only for such term as would in its opinion be sufficient to enable A to adjust without undue hardship to the termination of A’s financial dependence on the other civil partner.

(4)If—

(a)on or after the making of a dissolution or nullity order, an application is made by one of the civil partners for a periodical payments or secured periodical payments order in that civil partner’s favour, but

(b)the court considers that no continuing obligation should be imposed on either civil partner to make or secure periodical payments in favour of the other,

the court may dismiss the application with a direction that the applicant is not entitled to make any future application in relation to that civil partnership for an order under Part 1 by virtue of paragraph 2(1)(a) or (b).

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Amendments (Textual)

Part 6 E+WMaking of Part 1 orders having regard to pension benefits

Prospective

Pension benefits to be included in matters to which court is to have regardE+W

24(1)The matters to which the court is to have regard under paragraph 21(2)(a) include any pension benefits under a pension arrangement or by way of pension which a civil partner has or is likely to have; and, accordingly, in relation to any pension benefits paragraph 21(2)(a)(ii) has effect as if “in the foreseeable future” were omitted.E+W

(2)The matters to which the court is to have regard under paragraph 21(2)(h) include any pension benefits which, because of the making of a dissolution or nullity order, a civil partner will lose the chance of acquiring.

(3)Pension benefits” means—

(a)benefits under a pension arrangement, or

(b)benefits by way of pension (whether under a pension arrangement or not).

Provisions applying where pension benefits taken into account in decision to make Part 1 orderE+W

25(1)This paragraph applies if, having regard to any benefits under a pension arrangement, the court decides to make an order under Part 1.E+W

(2)To the extent to which the Part 1 order is made having regard to any benefits under a pension arrangement, it may require the person responsible for the pension arrangement, if at any time any payment in respect of any benefits under the arrangement becomes due to the civil partner with pension rights, to make a payment for the benefit of the other civil partner.

(3)The Part 1 order must express the amount of any payment required to be made by virtue of sub-paragraph (2) as a percentage of the payment which becomes due to the civil partner with pension rights.

(4)Any such payment by the person responsible for the arrangement—

(a)discharges so much of his liability to the civil partner with pension rights as corresponds to the amount of the payment, and

(b)is to be treated for all purposes as a payment made by the civil partner with pension rights in or towards the discharge of that civil partner’s liability under the order.

(5)If the civil partner with pension rights has a right of commutation under the arrangement, the Part 1 order may require that civil partner to exercise it to any extent.

(6)This paragraph applies to any payment due in consequence of commutation in pursuance of the Part 1 order as it applies to other payments in respect of benefits under the arrangement.

(7)The power conferred by sub-paragraph (5) may not be exercised for the purpose of commuting a benefit payable to the civil partner with pension rights to a benefit payable to the other civil partner.

(8)The powers conferred by sub-paragraphs (2) and (5) may not be exercised in relation to a pension arrangement which—

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

(b)has been the subject of pension sharing between the civil partners.

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Modifications etc. (not altering text)

Pensions: lump sumsE+W

26(1)This paragraph applies if the benefits which the civil partner with pension rights has or is likely to have under a pension arrangement include any lump sum payable in respect of that civil partner’s death.E+W

(2)The court’s power under Part 1 to order a civil partner to pay a lump sum to the other civil partner includes the power to make by the order any provision in sub-paragraph (3) to (5).

(3)If the person responsible for the pension arrangement has power to determine the person to whom the sum, or any part of it, is to be paid, the court may require him to pay the whole or part of that sum, when it becomes due, to the other civil partner.

(4)If the civil partner with pension rights has power to nominate the person to whom the sum, or any part of it, is to be paid, the court may require the civil partner with pension rights to nominate the other civil partner in respect of the whole or part of that sum.

(5)In any other case, the court may require the person 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 civil partner instead of to the person to whom, apart from the order, it would be paid.

(6)Any payment by the person responsible for the arrangement under an order made under Part 1 made by virtue of this paragraph discharges so much of his liability in respect of the civil partner with pension rights as corresponds to the amount of the payment.

(7)The powers conferred by this paragraph may not be exercised in relation to a pension arrangement which—

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

(b)has been the subject of pension sharing between the civil partners.

Pensions: supplementaryE+W

27If—E+W

(a)a Part 1 order made by virtue of paragraph 25 or 26 imposes any requirement on the person responsible for a pension arrangement (“the first arrangement”),

(b)the civil partner with pension rights acquires rights under another pension arrangement (“the new arrangement”) which are derived (directly or indirectly) from the whole of that civil partner’s rights under the first arrangement, and

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

the Part 1 order has effect as if it had been made instead in respect of the person responsible for the new arrangement.

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Commencement Information

I5Sch. 5 para. 27 wholly in force at 5.12.2005; Sch. 5 para. 27 not in force at Royal Assent see s. 263; Sch. 5 para. 27(c) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 5 para. 27 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

RegulationsE+W

28(1)The Lord Chancellor may by regulations—E+W

(a)make provision, in relation to any provision of paragraph 25 or 26 which authorises the court making a Part 1 order to require the person responsible for a pension arrangement to make a payment for the benefit of the other civil partner, as to—

(i)the person to whom, and

(ii)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 paragraph 25 or 26 in a Part 1 order, 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 Part 1 orders which include provision made by virtue of paragraphs 25 and 26;

(d)make provision for the person responsible for a pension arrangement to be discharged in prescribed circumstances from a requirement imposed by virtue of paragraph 25 or 26;

(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 (within the meaning of paragraph 16(3)),

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

(2)Regulations under sub-paragraph (1)(e) 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 1999 Act.

(3)The power to make regulations under paragraph 27 or this paragraph is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

(4)Prescribed” means prescribed by regulations.

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Commencement Information

I6Sch. 5 para. 28 wholly in force at 5.12.2005; Sch. 5 para. 28 not in force at Royal Assent see s. 263; Sch. 5 para. 28 in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 5 para. 28 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Interpretation of provisions relating to pensionsE+W

29(1)In this Part “the civil partner with pension rights” means the civil partner who has or is likely to have benefits under a pension arrangement.E+W

(2)In this Part “pension arrangement” has the same meaning as in Part 4.

(3)In this Part, references to the person responsible for a pension arrangement are to be read in accordance with section 26 of the Welfare Reform and Pensions Act 1999 (c. 30).

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Commencement Information

I7Sch. 5 para. 29 wholly in force at 5.12.2005; Sch. 5 para. 29 not in force at Royal Assent see s. 263; Sch. 5 para. 29(2)(3) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 5 para. 29 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Part 7 E+WPension protection fund compensation etc.

PPF compensation to be included in matters to which court is to have regardE+W

30(1)The matters to which a court is to have regard under paragraph 21(2)(a) include any PPF compensation to which a civil partner is or is likely to be entitled; and, accordingly, in relation to any PPF compensation paragraph 21(2)(a)(ii) has effect as if “in the foreseeable future” were omitted.E+W

(2)The matters to which a court is to have regard under paragraph 21(2)(h) include any PPF compensation which, because of the making of a dissolution or nullity order, a civil partner will lose the chance of acquiring entitlement to.

(3)F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Assumption of responsibility by PPF Board in paragraph 25(2) casesE+W

31(1)This paragraph applies to an order under Part 1 so far as it includes provision made by virtue of paragraph 25(2) which—E+W

(a)imposed requirements on the trustees or managers of an occupational pension scheme for which the Board has assumed responsibility, and

(b)was made before the trustees or managers received the transfer notice.

(2)From the time the trustees or managers of the scheme receive the transfer notice, the order has effect—

(a)except in descriptions of case prescribed by regulations, with the modifications set out in sub-paragraph (3), and

(b)with such other modifications as may be prescribed by regulations.

(3)The modifications are that—

(a)references in the order to the trustees or managers of the scheme have effect as references to the Board, and

(b)references in the order to any pension or lump sum to which the civil partner with pension rights is or may become entitled under the scheme have effect as references to any PPF compensation to which that person is or may become entitled in respect of the pension or lump sum.

Assumption of responsibility by PPF Board in paragraph 25(5) casesE+W

32(1)This paragraph applies to an order under Part 1 if—E+W

(a)it includes provision made by virtue of paragraph 25(5) which requires the civil partner 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.

(2)From the time the trustees or managers of the scheme receive the transfer notice, the order has effect with such modifications as may be prescribed by regulations.

Lump sums: power to modify paragraph 26 in respect of assessment periodE+W

33Regulations may modify paragraph 26 in its application to an occupational pension scheme during an assessment period in relation to the scheme.E+W

Assumption of responsibility by the Board not to affect power of court to vary order etc.E+W

34(1)This paragraph applies where the court makes, in relation to an occupational pension scheme—E+W

(a)a pension sharing order, or

(b)an order including provision made by virtue of paragraph 25(2) or (5).

(2)If the Board subsequently assumes responsibility for the scheme, that does not affect—

(a)the powers of the court under paragraph 51 to vary or discharge the order or to suspend or revive any provision of it;

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

Attachment of PPF compensationE+W

34A(1)This paragraph applies if, having regard to any PPF compensation to which a civil partner is or is likely to be entitled, the court decides to make an order under Part 1.E+W

(2)To the extent to which the Part 1 order is made having regard to such compensation, it may require the Board, if at any time any payment in respect of PPF compensation becomes due to the civil partner with compensation rights, to make a payment for the benefit of the other civil partner.

(3)The Part 1 order must express the amount of any payment required to be made by virtue of sub-paragraph (2) as a percentage of the payment which becomes due to the civil partner with compensation rights.

(4)Any such payment by the Board—

(a)discharges so much of its liability to the civil partner with compensation rights as corresponds to the amount of the payment, and

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

(5)If the civil partner with compensation rights has a right to commute any PPF compensation, the Part 1 order may require that civil partner to exercise it to any extent.

(6)This paragraph applies to any payment due in consequence of commutation in pursuance of the Part 1 order as it applies to other payments in respect of PPF compensation.

(7)The power conferred by sub-paragraph (5) may not be exercised for the purpose of commuting a benefit payable to the civil partner with compensation rights to a benefit payable to the other civil partner.

(8)The powers conferred by sub-paragraphs (2) and (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 civil partnership or a previous civil partnership between the same parties, or

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

[F2134B(1)Regulations may—E+W

(a)make provision, in relation to any provision of paragraph 34A which authorises the court making a Part 1 order to require the Board to make a payment for the benefit of the other civil partner, 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 paragraph 34A in a Part 1 order, 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 Part 1 orders which include provision made by virtue of paragraph 34A;

(d)make provision for the Board to be discharged in prescribed circumstances from a requirement imposed by virtue of paragraph 34A;

(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 Schedule.

(2)Regulations under sub-paragraph (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.]

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Amendments (Textual)

F21Sch. 5 para. 34B inserted (6.3.2011 for specified purposes otherwise 6.4.2011) by Pensions Act 2008 (c. 30), ss. 120, 149, Sch. 6 para. 17(4); S.I. 2011/664, art. 2(2)(3), Sch.

RegulationsE+W

35Regulations may make such consequential modifications of any provision of, or made by virtue of, this Schedule as appear to the Lord Chancellor necessary or expedient to give effect to the provisions of this Part.E+W

36(1)In this Part “regulations” means regulations made by the Lord Chancellor.E+W

(2)A power to make regulations under this Part is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

InterpretationE+W

37(1)In this Part—E+W

  • assessment period” means—

    (a)

    an assessment period within the meaning of Part 2 of the Pensions Act 2004 (pension protection), or

    (b)

    an equivalent period under corresponding Northern Ireland legislation;

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

  • [F22the civil partner with compensation rights” means the civil partner who is or is likely to be entitled to PPF compensation;]

  • the civil partner with pension rights” has the meaning given by paragraph 29(1);

  • occupational pension scheme” has the same meaning as in the Pension Schemes Act 1993 (c. 48);

[F23prescribed” means prescribed by regulations;]

  • transfer notice” has the same meaning as in—

    (a)

    Chapter 3 of Part 2 of the 2004 Act, or

    (b)

    corresponding Northern Ireland legislation.

(2)References in this Part to the Board assuming responsibility for a scheme are to the Board assuming responsibility for the scheme in accordance with—

(a)Chapter 3 of Part 2 of the 2004 Act (pension protection), or

(b)corresponding Northern Ireland legislation.

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Amendments (Textual)

F22Sch. 5 para. 37(1): definition of "the civil partner with compensation rights" inserted (6.4.2011) by Pensions Act 2008 (c. 30), ss. 120, 149, Sch. 6 para. 17(5)(a); S.I. 2011/664, art. 2(3), Sch. Pt. 2

Prospective

Part 8 E+WMaintenance pending outcome of dissolution, nullity or separation proceedings

38On an application for a dissolution, nullity or separation order, the court may make an order requiring either civil partner to make to the other for the other’s maintenance such periodical payments for such term—E+W

(a)beginning no earlier than the date on which the application was made, and

(b)ending with the date on which the proceedings are determined,

as the court thinks reasonable.

Part 9 E+WFailure to maintain: financial provision (and interim orders)

Circumstances in which orders under this Part may be madeE+W

39(1)Either civil partner in a subsisting civil partnership may apply to the court for an order under this Part on the ground that the other civil partner (“the respondent”)—E+W

(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 must not entertain an application under this paragraph[F24 unless it has jurisdiction to do so by virtue of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011.]

(3)If, on an application under this paragraph, it appears to the court that—

(a)the applicant or any child of the family to whom the application relates is in immediate need of financial assistance, but

(b)it is not yet possible to determine what order, if any, should be made on the application,

the court may make an interim order.

(4)If, on an application under this paragraph, the applicant satisfies the court of a ground mentioned in sub-paragraph (1), the court may make one or more of the orders set out in paragraph 41.

[F25(5)In this paragraph, “the Maintenance Regulation” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.]

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Amendments (Textual)

Interim ordersE+W

40An interim order is an order requiring the respondent to make to the applicant, until the determination of the application, such periodical payments as the court thinks reasonable.E+W

Orders that may be made where failure to maintain establishedE+W

41(1)The orders are—E+W

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

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

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

(d)an order that the respondent must make such periodical payments for such term as may be specified—

(i)to such person as may be specified, for the benefit of the child to whom the application relates, or

(ii)to the child to whom the application relates;

(e)an order that the respondent must secure—

(i)to such person as may be specified for the benefit of the child to whom the application relates, or

(ii)to the child to whom the application relates,

to the satisfaction of the court, such periodical payments for such term as may be specified;

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

(i)to such person as may be specified for the benefit of the child to whom the application relates, or

(ii)to the child to whom the application relates.

(2)In this Part “specified” means specified in the order.

Particular provision that may be made by lump sum ordersE+W

42(1)An order under this Part for the payment of a lump sum 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.E+W

(2)An order under this Part for the payment of a lump sum may—

(a)provide for its payment by instalments of such amount as may be specified, and

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

(3)Sub-paragraphs (1) and (2) do not restrict the power to make an order by virtue of paragraph 41(1)(c) or (f).

Matters to which the court is to have regard on application under paragraph 39(1)(a)E+W

43(1)This paragraph applies if an application under paragraph 39 is made on the ground mentioned in paragraph 39(1)(a).E+W

(2)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 Part in favour of the applicant,

the court must have regard to all the circumstances of the case including the matters mentioned in paragraph 21(2).

(3)If an application is also made under paragraph 39 in respect of a child of the family who has not reached 18, the court must give first consideration to the welfare of the child while under 18.

(4)Paragraph 21(2)(c) has effect as if for the reference in it to the breakdown of the civil partnership there were substituted a reference to the failure to provide reasonable maintenance for the applicant.

Matters to which the court is to have regard on application under paragraph 39(1)(b)E+W

44(1)This paragraph applies if an application under paragraph 39 is made on the ground mentioned in paragraph 39(1)(b).E+W

(2)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 Part in favour of the child,

the court must have regard to all the circumstances of the case.

(3)Those circumstances include—

(a)the matters mentioned in paragraph 22(2)(a) to (e), and

(b)if the child of the family to whom the application relates is not the child of the respondent, the matters mentioned in paragraph 22(3).

(4)Paragraph 21(2)(c) (as it applies by virtue of paragraph 22(2)(e)) has effect as if for the reference in it to the breakdown of the civil partnership there were substituted a reference to—

(a)the failure to provide, or

(b)the failure to make a proper contribution towards,

reasonable maintenance for the child of the family to whom the application relates.

Restrictions on making orders under this PartE+W

45The power to make an order under paragraph 41(1)(d), (e) or (f) is subject to paragraph 49(1) and (5) (restrictions on orders in favour of children who have reached 18).E+W

Part 10 E+WCommencement of certain proceedings and duration of certain orders

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

46(1)Sub-paragraph (2) applies if an application for a dissolution, nullity or separation order has been made.E+W

(2)Subject to sub-paragraph (3), proceedings for—

(a)an order under Part 1 (financial provision on dissolution etc.),

(b)a property adjustment order, or

(c)an order under Part 8 (maintenance pending outcome of dissolution, nullity or separation proceedings),

may be begun (subject to and in accordance with rules of court) at any time after the presentation of the application.

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

(a)an application for any such relief as is mentioned in sub-paragraph (2) must be made in the application or response, and

(b)an application for any such relief which—

(i)is not so made, or

(ii)is not made until after the end of such period following the presentation of the application or filing of the response as may be so prescribed,

may be made only with the leave of the court.

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Commencement Information

I8Sch. 5 para. 46 wholly in force at 5.12.2005; Sch. 5 para. 46 not in force at Royal Assent see s. 263; Sch. 5 para. 46(2) in force for certain purposes and Sch. 5 para. 46(3) in force at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 5 para. 46 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Duration of periodical and secured periodical payments orders for a civil partnerE+W

47(1)The court may specify in a periodical payments or secured periodical payments order in favour of a civil partner such term as it thinks fit, except that the term must not—E+W

(a)begin before the date of the making of an application for the order, or

(b)extend beyond the limits given in sub-paragraphs (2) and (3).

(2)The limits in the case of a periodical payments order are—

(a)the death of either civil partner;

(b)where the order is made on or after the making of a dissolution or nullity order, the formation of a subsequent civil partnership or marriage by the civil partner in whose favour the order is made.

(3)The limits in the case of a secured periodical payments order are—

(a)the death of the civil partner in whose favour the order is made;

(b)where the order is made on or after the making of a dissolution or nullity order, the formation of a subsequent civil partnership or marriage by the civil partner in whose favour the order is made.

(4)In the case of an order made on or after the making of a dissolution or nullity order, sub-paragraphs (1) to (3) are subject to paragraphs 23(3) and 59(4).

(5)If a periodical payments or secured periodical payments order in favour of a civil partner is made on or after the making of a dissolution or nullity order, the court may direct that that civil partner is not entitled to apply under paragraph 51 for the extension of the term specified in the order.

(6)If—

(a)a periodical payments or secured periodical payments order in favour of a civil partner is made otherwise than on or after the making of a dissolution or nullity order, and

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

the order ceases to have effect (regardless of anything in it) on the formation of a subsequent civil partnership or marriage by that civil partner, except in relation to any arrears due under it on the date of its formation.

Subsequent civil partnership or marriageE+W

48If after the making of a dissolution or nullity order one of the civil partners forms a subsequent civil partnership or marriage, that civil partner is not entitled to apply, by reference to the dissolution or nullity order, for—E+W

(a)an order under Part 1 in that civil partner’s favour, or

(b)a property adjustment order,

against the other civil partner in the dissolved or annulled civil partnership.

Duration of continuing orders in favour of children, and age limit on making certain orders in their favourE+W

49(1)Subject to sub-paragraph (5)—E+W

(a)no order under Part 1,

(b)no property adjustment order made by virtue of paragraph 7(1)(a) (transfer of property), and

(c)no order made under Part 9 (failure to maintain) by virtue of paragraph 41,

is to be made in favour of a child who has reached 18.

(2)The term to be specified in a periodical payments or secured periodical payments order in favour of a child may begin with—

(a)the date of the making of an application for the order or a later date, or

(b)a date ascertained in accordance with sub-paragraph (7) or (8).

(3)The term to be specified in such an order—

(a)must not in the first instance extend beyond the date of the birthday of the child next following the child’s reaching the upper limit of the compulsory school age unless the court considers that in the circumstances of the case the welfare of the child requires that it should extend to a later date, and

(b)must not in any event, subject to sub-paragraph (5), extend beyond the date of the child’s 18th birthday.

(4)Sub-paragraph (3)(a) must be read with section 8 of the Education Act 1996 (c. 56) (which applies to determine for the purposes of any enactment whether a person is of compulsory school age).

(5)Sub-paragraphs (1) and (3)(b) do not apply in the case of a child if it appears to the court that—

(a)the child is, or will be, or, if an order were made without complying with either or both of those provisions, would be—

(i)receiving instruction at an educational establishment, or

(ii)undergoing training for a trade, profession or vocation,

whether or not the child also is, will be or would be in gainful employment, or

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

(6)A periodical payments order in favour of a child, regardless of anything in the order, ceases to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the order on the date of the death.

(7)If—

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

(b)an application is made under this Schedule 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 (c. 48), and

(ii)before the end of 6 months beginning with the making of the current calculation,

the term to be specified in any such order made on that application may be expressed to begin on, or at any time after, the earliest permitted date.

(8)The earliest permitted date” is whichever is the later of—

(a)the date 6 months before the application is made, or

(b)the date on which the current calculation took effect or, where successive maintenance calculations have been continuously in force with respect to a child, on which the first of those calculations took effect.

(9)If—

(a)a maintenance calculation ceases to have effect by or under any provision of the 1991 Act, and

(b)an application is made, before the end 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 maintenance calculation was in force immediately before it ceased to have effect,

the term to be specified in any such order made on that application may begin with the date on which that maintenance calculation ceased to have effect or any later date.

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

(11)In this paragraph “maintenance calculation” has the same meaning as it has in the 1991 Act by virtue of section 54 of the 1991 Act as read with any regulations in force under that section.

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Modifications etc. (not altering text)

Part 11 E+WVariation, discharge etc. of certain orders for financial relief

Orders etc. to which this Part appliesE+W

50(1)This Part applies to the following orders—E+W

(a)a periodical payments order under Part 1 (financial provision on dissolution etc.) or Part 9 (failure to maintain);

(b)a secured periodical payments order under Part 1 or 9;

(c)an order under Part 8 (maintenance pending outcome of dissolution proceedings etc.);

(d)an interim order under Part 9;

(e)an order made under Part 1 by virtue of paragraph 3(3) or under Part 9 by virtue of paragraph 42(2) (lump sum by instalments);

(f)a deferred order made under Part 1 by virtue of paragraph 2(1)(c) (lump sum for civil partner) which includes provision made by virtue of—

(i)paragraph 25(2), F26. . .

(ii)paragraph 26,[F27 or]

[F28(iii)paragraph 34A(2),]

(provision in respect of pension rights [F29or pension compensation rights]);

(g)a property adjustment order made on or after the making of a separation order by virtue of paragraph 7(1)(b), (c) or (d) (order for settlement or variation of settlement);

(h)a sale of property order;

(i)a pension sharing order [F30, or a pension compensation sharing order,] made before the dissolution or nullity order has been made final.

(2)If the court has made an order referred to in sub-paragraph (1)(f)(ii), this Part ceases to apply to the order on the death of either of the civil partners.

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

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Amendments (Textual)

Powers to vary, discharge, suspend or revive orderE+W

51(1)If the court has made an order to which this Part applies, it may—E+W

(a)vary or discharge the order,

(b)suspend any provision of it temporarily, or

(c)revive the operation of any provision so suspended.

(2)Sub-paragraph (1) is subject to the provisions of this Part and paragraph 47(5).

Power to remit arrearsE+W

52(1)If the court has made an order referred to in paragraph 50(1)(a), (b), (c) or (d), it may remit the payment of any arrears due under the order or under any part of the order.E+W

(2)Sub-paragraph (1) is subject to the provisions of this Part.

Additional powers on discharging or varying a periodical or secured periodical payments order after dissolution of civil partnershipE+W

53(1)Sub-paragraph (2) applies if, after the dissolution of a civil partnership, the court—E+W

(a)discharges a periodical payments order or secured periodical payments order made in favour of a civil partner, 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.

(2)The court may make supplemental provision consisting of any of the following—

(a)an order for the payment of a lump sum in favour of one of the civil partners;

(b)one or more property adjustment orders in favour of one of the civil partners;

(c)one or more pension sharing orders;

[F31(ca)a pension compensation sharing order;]

(d)a direction that the civil partner 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.

(3)The power under sub-paragraph (2) is in addition to any power the court has apart from that sub-paragraph.

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Amendments (Textual)

54(1)An order for the payment of a lump sum under paragraph 53 may—E+W

(a)provide for the payment of it by instalments of such amount as may be specified, and

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

(2)Sub-paragraphs (5) and (6) of paragraph 3 (interest on deferred instalments) apply where the court makes an order for the payment of a lump sum under paragraph 53 as they apply where it makes such an order under Part 1.

(3)If under paragraph 53 the court makes more than one property adjustment order in favour of the same civil partner, each of those orders must fall within a different paragraph of paragraph 7(1) (types of property adjustment orders).

(4)Part 3 (orders for the sale of property) and paragraph 76 (direction for settlement of instrument) apply where the court makes a property adjustment order under paragraph 53 as they apply where it makes any other property adjustment order.

(5)Paragraph 18 (restrictions on making of pension sharing order) applies in relation to a pension sharing order under paragraph 53 as it applies in relation to any other pension sharing order.

[F32(6)Paragraph 19D (restrictions on making pension compensation sharing orders) applies in relation to a pension compensation sharing order under paragraph 53 as it applies in relation to any other pension compensation sharing order.]

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Amendments (Textual)

Variation etc. of periodical or secured periodical payments orders made in cases of failure to maintainE+W

55(1)An application for the variation under paragraph 51 of a periodical payments order or secured periodical payments order made under Part 9 in favour of a child may, if the child has reached 16, be made by the child himself.E+W

(2)Sub-paragraph (3) applies if a periodical payments order made in favour of a child under Part 9 ceases to have effect—

(a)on the date on which the child reaches 16, or

(b)at any time after that date but before or on the date on which the child reaches 18.

(3)If, on an application made to the court for an order under this sub-paragraph, it appears to the court that—

(a)the child is, will be or, if an order were made under this sub-paragraph, would be—

(i)receiving instruction at an educational establishment, or

(ii)undergoing training for a trade, profession or vocation,

whether or not the child also is, will be or would be in gainful employment, or

(b)there are special circumstances which justify the making of an order under this sub-paragraph,

the court may by order revive the order mentioned in sub-paragraph (2) from such date as it may specify.

(4)A date specified under sub-paragraph (3) must not be earlier than the date of the application under that sub-paragraph.

(5)If under sub-paragraph (3) the court revives an order it may exercise its power under paragraph 51 in relation to the revived order.

Variation etc. of property adjustment [F33, pension sharing and pension compensation sharing orders]E+W

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Amendments (Textual)

F33Words in cross-heading before Sch. 5 para. 56 substituted (6.4.2011) by Pensions Act 2008 (c. 30), ss. 120, 149, Sch. 6 para. 18(6); S.I. 2011/664, art. 2(3), Sch. Pt. 2

56The court must not exercise the powers conferred by this Part in relation to a property adjustment order falling within paragraph 7(1)(b), (c) or (d) (order for settlement or for variation of settlement) except on an application made in proceedings—E+W

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

(b)for a dissolution order in relation to the civil partnership.

57(1)In relation to a pension sharing order [F34or pension compensation sharing order] which is made at a time before the dissolution or nullity order has been made final—E+W

(a)the powers conferred by this Part (by virtue of paragraph 50(1)(i)) may be exercised—

(i)only on an application made before the pension sharing order [F35or pension compensation sharing order] has or, but for paragraph (b), would have taken effect, and

(ii)only if, at the time when the application is made, the dissolution or nullity order has not been made final, and

(b)an application made in accordance with paragraph (a) prevents the pension sharing order [F36or pension compensation sharing order] from taking effect before the application has been dealt with.

(2)No variation of a pension sharing order [F37or pension compensation sharing order] is to be made so as to take effect before the order is made final.

(3)The variation of a pension sharing order [F38or pension compensation sharing order] prevents the order taking effect before the end of such period after the making of the variation as may be prescribed by regulations made by the Lord Chancellor.

(4)The power to make regulations under sub-paragraph (3) is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

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Amendments (Textual)

F38Words in Sch. 5 para. 57(3) inserted (6.3.2011 for specified purposes otherwise 6.4.2011) by Pensions Act 2008 (c. 30), ss. 120, 149, Sch. 6 para. 18(7)(e); S.I. 2011/664, art. 2(2)(3), Sch.

Commencement Information

I9Sch. 5 para. 57 wholly in force at 5.12.2005; Sch. 5 para. 57 not in force at Royal Assent see s. 263; Sch. 5 para. 57(3)(4) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 5 para. 57 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

58(1)Sub-paragraphs (2) and (3)—E+W

(a)are subject to paragraphs 53 and 54, and

(b)do not affect any power exercisable by virtue of paragraph 50(e), (f), (g) or (i) or otherwise than by virtue of this Part.

(2)No property adjustment order [F39, pension sharing order or pension compensation sharing order] may be made on an application for the variation of a periodical payments or secured periodical payments order made (whether in favour of a civil partner or in favour of a child of the family) under Part 1.

(3)No order for the payment of a lump sum may be made on an application for the variation of a periodical payments or secured periodical payments order in favour of a civil partner (whether made under Part 1 or 9).

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Amendments (Textual)

Matters to which court is to have regard in exercising powers under this PartE+W

59(1)In exercising the powers conferred by this Part the court must have regard to all the circumstances of the case, giving first consideration to the welfare, while under 18, of any child of the family who has not reached 18.E+W

(2)The circumstances of the case include, in particular, any change in any of the matters to which the court was required to have regard when making the order to which the application relates.

(3)Sub-paragraph (4) applies in the case of—

(a)a periodical payments order, or

(b)a secured periodical payments order,

made on or after the making of a dissolution or nullity order.

(4)The court must consider whether in all the circumstances, and after having regard to any such change, it would be appropriate to vary the order so that payments under the order are required—

(a)to be made, or

(b)to be secured,

only for such further period as will in the opinion of the court be sufficient to enable the civil partner in whose favour the order was made to adjust without undue hardship to the termination of those payments.

(5)In considering what further period will be sufficient, the court must, if the civil partnership has been dissolved, take into account any proposed exercise by it of its powers under paragraph 53.

(6)If the civil partner against whom the order was made has died, the circumstances of the case also include the changed circumstances resulting from that civil partner’s death.

Variation of secured periodical payments order where person liable has diedE+W

60(1)This paragraph applies if the person liable to make payments under a secured periodical payments order has died.E+W

(2)Subject to sub-paragraph (3), an application under this Part relating to the order (and to any sale of property order which requires the proceeds of sale of property to be used for securing those payments) may be made by—

(a)the person entitled to payments under the periodical payments order, or

(b)the personal representatives of the deceased person.

(3)No such application may be made without the leave of the court after the end of 6 months from the date on which representation in regard to the estate of that person is first taken out.

(4)The personal representatives of the person who has died are not liable for having distributed any part of the estate of the deceased after the end of the 6 month period on the ground that they ought to have taken into account the possibility that the court might allow an application under this paragraph to be made after that period by the person entitled to payments under the order.

(5)Sub-paragraph (4) does not affect any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this paragraph.

(6)In considering for the purposes of sub-paragraph (3) the question when representation was first taken out—

(a)a grant limited to settled land or to trust property is to be disregarded, and

(b)a grant limited to real estate or to personal estate is to be disregarded unless a grant limited to the remainder of the estate has previously been made or is made at the same time.

Power to direct when variation etc. is to take effectE+W

61(1)If the court, in exercise of its powers under this Part, decides—E+W

(a)to vary, or

(b)to discharge,

a periodical payments or secured periodical payments order, it may direct that the variation or discharge is not to take effect until the end of such period as may be specified in the order.

(2)Sub-paragraph (1) is subject to paragraph 47(1) and (6).

62(1)If—E+W

(a)a periodical payments or secured periodical payments order in favour of more than one child (“the order”) is in force,

(b)the order requires payments specified in it to be made to or for the benefit of more than one child without apportioning those payments between them,

(c)a maintenance calculation (“the calculation”) is made with respect to one or more, but not all, of the children with respect to whom those payments are to be made, and

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

the court may, in exercise of its powers under this Part to vary or discharge the order, direct that the variation or discharge is to take effect from the date on which the calculation took effect or any later date.

(2)If—

(a)an order (“the child order”) of a kind prescribed for the purposes of section 10(1) of the Child Support Act 1991 (c. 48) is affected by a maintenance calculation,

(b)on the date on which the child order became so affected there was in force a periodical payments or secured periodical payments order (“the civil partner’s order”) in favour of a civil partner having the care of the child in whose favour the child order was made, and

(c)an application is made, before the end of the period of 6 months beginning with the date on which the maintenance calculation was made, for the civil partner’s order to be varied or discharged,

the court may, in exercise of its powers under this Part to vary or discharge the civil partner’s order, direct that the variation or discharge is to take effect from the date on which the child order became so affected or any later date.

(3)For the purposes of sub-paragraph (2), an order is affected if it ceases to have effect or is modified by or under section 10 of the 1991 Act.

(4)Sub-paragraphs (1) and (2) do not affect any other power of the court to direct that the variation of discharge of an order under this Part is to take effect from a date earlier than that on which the order for variation or discharge was made.

(5)In this paragraph “maintenance calculation” has the same meaning as it has in the 1991 Act by virtue of section 54 of the 1991 Act as read with any regulations in force under that section.

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Modifications etc. (not altering text)

Part 12 E+WArrears and repayments

Payment of certain arrears unenforceable without the leave of the courtE+W

Prospective

63(1)This paragraph applies if any arrears are due under—E+W

(a)an order under Part 1 (financial provision on dissolution etc.),

(b)an order under Part 8 (maintenance pending outcome of dissolution, nullity or separation proceedings), or

(c)an order under Part 9 (failure to maintain),

and the arrears became due more than 12 months before proceedings to enforce the payment of them are begun.

(2)A person is not entitled to enforce through the High Court or any county court the payment of the arrears without the leave of that court.

(3)The court hearing an application for the grant of leave under this paragraph may—

(a)refuse leave,

(b)grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment or the making of payment by instalments) as that court thinks proper, or

(c)remit the payment of the arrears or of any part of them.

(4)An application for the grant of leave under this paragraph must be made in such manner as may be prescribed by rules of court.

Orders for repayment in certain cases of sums paid under certain ordersE+W

64(1)This paragraph applies if—E+W

(a)a person (“R”) is entitled to receive payments under an order listed in sub-paragraph (2), and

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

(2)The orders are—

(a)any order under Part 8 (maintenance pending outcome of dissolution, nullity or separation proceedings);

(b)any interim order under Part 9;

(c)any periodical payments order;

(d)any secured periodical payments order.

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

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

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

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

(7)An application under this paragraph—

(a)may be made in proceedings in the High Court or a county court for—

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

(ii)leave to enforce, or the enforcement of, the payment of arrears under that order, but

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

and accordingly references in this paragraph to the court are references to the High Court or a county court, as the circumstances require.

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

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

65(1)Sub-paragraphs (3) and (4) apply if—E+W

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

(b)the person liable to make payments under the order (“P”) (or P’s personal representatives) has made payments in accordance with it in respect of a relevant period in the mistaken belief that the order was still subsisting.

(2)Relevant period” means a period after the date of the formation of the subsequent civil partnership or marriage.

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

(4)But, on an application under this paragraph by P (or P’s personal representatives) against R (or R’s personal representatives), the court—

(a)may order the respondent to pay to the applicant a sum equal to the amount of the payments made in respect of the relevant period, or

(b)if it appears to the court that it would be unjust to make that order, may—

(i)order the respondent to pay to the applicant such lesser sum as it thinks fit, or

(ii)dismiss the application.

(5)An order under this paragraph for the payment of any sum may provide for the payment of that sum by instalments of such amount as may be specified in the order.

(6)An application under this paragraph—

(a)may be made in proceedings in the High Court or a county court for leave to enforce, or the enforcement of, payment of arrears under the order in question, but

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

and accordingly references in this paragraph to the court are references to the High Court or a county court, as the circumstances require.

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

(8)Subject to sub-paragraph (9)—

(a)the designated officer for a magistrates' court to whom any payments under a payments order are required to be made is not liable for any act done by him in pursuance of the payments order after the date on which that order ceased to have effect because of the formation of a subsequent civil partnership or marriage by the person entitled to payments under it, and

(b)the collecting officer under an attachment of earnings order made to secure payments under a payments order is not liable 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.

(9)Sub-paragraph (8) applies if (and only if) the act—

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

(b)was done before notice in writing of the formation of the subsequent civil partnership or marriage was given to him by or on behalf of—

(i)the person entitled to payments under the payments order,

(ii)the person liable to make payments under it, or

(iii)the personal representatives of either of them.

(10)In sub-paragraphs (8) and (9) “payments order” means a periodical payments order or secured periodical payments order and “collecting officer”, in relation to an attachment of earnings order, means—

(a)the officer of the High Court,

(b)the district judge of a county court, or

(c)the designated officer for a magistrates' court,

to whom a person makes payments in compliance with the order.

Part 13 E+WConsent orders and maintenance agreements

Consent orders for financial reliefE+W

66(1)Regardless of anything in the preceding provisions of this Schedule, on an application for a consent order for financial relief, the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of such information supplied with the application as is required by rules of court.E+W

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

(3)In this paragraph—

  • consent order”, in relation to an application for an order, means an order in the terms applied for to which the respondent agrees;

  • order for financial relief” means an order under any of Parts 1, 2, 3, 4 and 9.

Meaning of “maintenance agreement” and “financial arrangements”E+W

67(1)In this Part “maintenance agreement” means any agreement in writing between the civil partners in a civil partnership which—E+W

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

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

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

(a)the making or securing of payments, or

(b)the disposition or use of any property,

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

(3)Education” includes training.

Validity of maintenance agreementsE+W

68If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements—E+W

(a)that provision is void, but

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

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

(ii)unless void or unenforceable for any other reason, are (subject to paragraphs 69 and 73) binding on the parties to the agreement.

Alteration of agreements by court during lives of partiesE+W

69(1)[F40Subject to sub-paragraph (1A),] either party to a maintenance agreement may apply to the court or, subject to sub-paragraph (6), to a magistrates' court for an order under this paragraph if—E+W

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

(b)each of the parties to the agreement is for the time being domiciled or resident in England and Wales.

[F41(1A)If an application or part of an application relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011—

(a)the requirement as to domicile or residence in sub-paragraph (1)(b) does not apply to the application or that part of it, but

(b)the court may not entertain the application or that part of it unless it has jurisdiction to do so by virtue of that Regulation and that Schedule.]

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

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

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

(ii)financial arrangements were omitted from it,

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

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

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

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

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

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

as appear to the court to be just having regard to all the circumstances, including, if relevant, the matters mentioned in paragraph 22(3).

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

(6)The power to make an order under this paragraph is subject to paragraphs 70 and 71.

[F42(7)In this paragraph, “the Maintenance Regulation” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.]

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Amendments (Textual)

Restrictions on applications to and orders by magistrates' courts under paragraph 69E+W

70(1)A magistrates' court must not entertain an application under paragraph 69(1) unless—E+W

(a)both the parties to the agreement are resident in England and Wales, and

(b)the 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.

(2)A magistrates' court must not make any order on such an application other than—

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

(i)the other party, or

(ii)any child of the family;

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

Provisions relating to periodical and secured periodical payments: durationE+W

71(1)If a court decides to make an order under paragraph 69 altering an agreement—E+W

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

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

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

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

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

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

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

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

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

(4)Sub-paragraph (5) applies if a court decides to make an order under paragraph 69 altering an agreement by—

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

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

(5)The court, in deciding the term for which under the agreement as altered by the order—

(a)the payments are to be made or secured for the benefit of the child, or

(b)the additional payments attributable to the increase are to be made or secured for the benefit of the child,

must apply paragraph 49(2) to (5) (age limits) as if the order in question were a periodical payments or secured periodical payments order in favour of the child.

SavingE+W

72Nothing in paragraphs 68 to 71 affects—E+W

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

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

Alteration of agreements by court after death of one partyE+W

73(1)This paragraph applies if—E+W

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

(b)that party (“A”) dies domiciled in England and Wales.

(2)Subject to sub-paragraph (4), the surviving party or A’s personal representatives may apply to the High Court or a county court for an order under paragraph 69.

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

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

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

(6)Sub-paragraph (5) does not affect any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this paragraph.

(7)Paragraph 60(6) applies for the purposes of sub-paragraph (4) as it applies for the purposes of paragraph 60(3).

Part 14 E+WMiscellaneous and supplementary

Avoidance of transactions intended to prevent or reduce financial reliefE+W

74(1)This paragraph applies if proceedings for relief (“financial relief”) are brought by one person (“A”) against another (“B”) under Part 1, 2, 4, 8, 9, or 11 (other than paragraph 60(2)), or paragraph 69.E+W

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

(a)make any disposition, or

(b)transfer out of the jurisdiction or otherwise deal with any property,

it may make such order as it thinks fit for restraining B from doing so or otherwise for protecting the claim.

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

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

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

it make an order setting aside the disposition.

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

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

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

75(1)Any reference in paragraph 74 to defeating A’s claim for financial relief is to—E+W

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

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

(c)frustrating or impeding the enforcement of any order which might be or has been made at A’s instance under any of those provisions.

(2)In paragraph 74 and this paragraph “disposition”—

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

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

(3)Any disposition made by B (whether before or after the commencement of the proceedings for financial relief) is a reviewable disposition for the purposes of paragraphs 74(3) and (4) unless it was made—

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

(b)to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any intention on B’s part to defeat A’s claim for financial relief.

(4)If an application is made under paragraph 74 with respect to a disposition which took place less than 3 years before the date of the application or with respect to a disposition or other dealing with property which is about to take place and the court is satisfied—

(a)in a case falling within paragraph 74(2) or (3), that the disposition or other dealing would (apart from paragraph 74) have the consequence of defeating A’s claim for financial relief, or

(b)in a case falling within paragraph 74(4), that the disposition has had the consequence of defeating A’s claim for financial relief,

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

Direction for settlement of instrument for securing payments or effecting property adjustmentE+W

76(1)This paragraph applies if the court decides to make—E+W

(a)an order under Part 1 or 9 requiring any payments to be secured, or

(b)a property adjustment order.

(2)The court 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.

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

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

77The fact that—E+W

(a)a settlement, or

(b)a transfer of property,

had to be made in order to comply with a property adjustment order does not prevent the settlement or transfer from being a transaction in respect of which an order may be made under section 339 or 340 of the Insolvency Act 1986 (c. 45) (transfers at an undervalue and preferences).

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

78(1)This paragraph applies if—E+W

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

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

(ii)property to be transferred,

to a civil partner, and

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

(2)Mental disorder” has the same meaning as in the Mental Health Act 1983 (c. 20).

(3)Subject to any order, direction or authority made or given in relation to that person under Part 8 of the 1983 Act, the court may order the payments to be made or, as the case may be, the property to be transferred to such persons having charge of that person as the court may direct.

Appeals relating to pension sharing orders which have taken effectE+W

79(1)Sub-paragraphs (2) and (3) apply if an appeal against a pension sharing order is begun on or after the day on which the order takes effect.E+W

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

(3)If the pension sharing order relates to a person’s shareable state scheme rights, the appeal court may not set aside or vary the order if the Secretary of State has acted to his detriment in reliance on the taking effect of the order.

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

(6)Paragraph 19 only applies to a pension sharing order under this paragraph if the decision of the appeal court can itself be the subject of an appeal.

(7)In sub-paragraph (2), the reference to the person responsible for the pension arrangement is to be read in accordance with paragraph 29(3).

[F43Appeals relating to pension compensation sharing orders which have taken effectE+W

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Amendments (Textual)

79A(1)This paragraph applies where an appeal against a pension compensation sharing order is begun on or after the day on which the order takes effect.E+W

(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 sub-paragraph (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)Paragraph 19E only applies to a pension compensation sharing order under this paragraph if the decision of the appeal court can itself be the subject of an appeal.]

InterpretationE+W

80(1)References in this Schedule to—E+W

(a)periodical payments orders,

(b)secured periodical payments orders, and

(c)orders for the payment of a lump sum,

are references to such of the orders that may be made under Parts 1 and 9 (other than interim orders) as are relevant in the context of the reference in question.

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

(a)a child of both of them, and

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

(3)In this Schedule “the court” (except where the context otherwise requires) means—

(a)the High Court, or

(b)where a county court has jurisdiction by virtue of Part 5 of the Matrimonial and Family Proceedings Act 1984 (c. 42), a county court.

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

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

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Commencement Information

I10Sch. 5 para. 80 wholly in force at 5.12.2005; Sch. 5 para. 80 not in force at Royal Assent see s. 263; Sch. 5 para. 80(3) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 5 para. 80 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Section 72(3)

SCHEDULE 6E+WFinancial relief in magistrates' courts etc.

Part 1 E+WFailure to maintain etc.: financial provision

Circumstances in which orders under this Part may be madeE+W

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

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

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

(c)has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent, or

(d)has deserted the applicant.

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

The orders: periodical and secured periodical payments and lump sumsE+W

2(1)The orders are—E+W

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

(b)an order that the respondent must pay to the applicant such lump sum as may be specified;

(c)an order that the respondent must make—

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

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

such periodical payments for such term as may be specified;

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

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

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

(2)The amount of a lump sum required to be paid under sub-paragraph (1)(b) or (d) must not exceed—

(a)£1,000, or

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

(3)The power to make an order under sub-paragraph (2) is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

(4)Specified” means specified in the order.

Particular provision that may be made by lump sum ordersE+W

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

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

Matters to which court is to have regard in exercising its powers under this Part—generalE+W

4If an application is made for an order under this Part, the court, in deciding—E+W

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

(b)if so, in what way,

must have regard to all the circumstances of the case, giving first consideration to the welfare while under 18 of any child of the family who has not reached 18.

Particular matters to be taken into account when exercising powers in relation to civil partnersE+W

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

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

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

(i)has, or

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

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

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

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

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

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

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

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

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Modifications etc. (not altering text)

Particular matters to be taken into account when exercising powers in relation to childrenE+W

6(1)This paragraph applies in relation to the exercise by the court of its power to make an order by virtue of paragraph 2(1)(c) or (d).E+W

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

(a)the financial needs of the child;

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

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

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

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

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

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

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

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

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

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

ReconciliationE+W

7(1)If an application is made for an order under this Part—E+W

(a)the court, before deciding whether to exercise its powers under this Part, must consider whether there is any possibility of reconciliation between the civil partners, and

(b)if at any stage of the proceedings on that application it appears to the court that there is a reasonable possibility of such a reconciliation, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect a reconciliation.

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

(a)an officer of the Children and Family Court Advisory and Support Service, or

(b)any other person,

to attempt to effect a reconciliation between the civil partners.

(3)If any such request is made, the officer or other person—

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

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

Refusal of order in case more suitable for High CourtE+W

8(1)If on hearing an application for an order under this Part a magistrates' court is of the opinion that any of the matters in question between the civil partners would be more conveniently dealt with by the High Court, the magistrates' court must refuse to make any order on the application.E+W

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

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

Part 2 E+WOrders for agreed financial provision

Orders for payments which have been agreed by the partiesE+W

9(1)Either civil partner may apply to a magistrates' court for an order under this Part on the ground that that civil partner or the other civil partner has agreed to make such financial provision as may be specified in the application.E+W

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

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

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

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

Meaning of “financial provision” and of references to specified financial provisionE+W

10(1)In this Part “financial provision” means any one or more of the following—E+W

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

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

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

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

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

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

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

(c)in the case of periodical payments, to the term so specified as the term for which the payments are to be made.

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Commencement Information

I11Sch. 6 para. 10 wholly in force at 5.12.2005; Sch. 6 para. 10 not in force at Royal Assent see s. 263; Sch. 6 para. 10 in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 6 para. 10 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Evidence to be produced where respondent not present etc.E+W

11(1)This paragraph applies if—E+W

(a)the respondent is not present, or

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

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

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

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

(b)the financial resources of the respondent, and

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

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I12Sch. 6 para. 11 wholly in force at 5.12.2005; Sch. 6 para. 11 not in force at Royal Assent see s. 263; Sch. 6 para. 11(2) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 6 para. 11 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Exercise of powers in relation to childrenE+W

12(1)This paragraph applies if the financial provision specified in an application under this Part—E+W

(a)includes, or

(b)consists of,

provision in respect of a child of the family.

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

Power to make alternative ordersE+W

13(1)This paragraph applies if on an application under this Part the court decides—E+W

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

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

(2)If the court is of the opinion—

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

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

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

Relationship between this Part and Part 1E+W

14(1)A civil partner who has applied for an order under Part 1 is not precluded at any time before the determination of the application from applying for an order under this Part.E+W

(2)If—

(a)an order is made under this Part on the application of either civil partner, and

(b)either of them has also made an application for a Part 1 order,

the application for the Part 1 order is to be treated as if it had been withdrawn.

Part 3 E+WOrders of court where civil partners living apart by agreement

Powers of court where civil partners are living apart by agreementE+W

15(1)If—E+W

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

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

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

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

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

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

The orders that may be made under this PartE+W

16(1)The orders are—E+W

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

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

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

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

such periodical payments for such term as may be specified.

(2)Specified” means specified in the order.

Restrictions on orders under this PartE+W

17The court in the exercise of its powers under this Part must not require—E+W

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

(i)the applicant, or

(ii)a child of the family,

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

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

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

Relationship with powers under Part 1E+W

18(1)Sub-paragraph (2) applies if on an application under this Part the court considers that the orders which it has the power to make under this Part—E+W

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

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

(2)The court—

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

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

Matters to be taken into considerationE+W

19Paragraphs 4 to 6 apply in relation to an application for an order under this Part as they apply in relation to an application for an order under Part 1, subject to the modification that for the reference in paragraph 5(2)(c) to the occurrence of the conduct which is alleged as the ground of the application substitute a reference to the living apart of the civil partners.E+W

Part 4 E+WInterim orders

Circumstances in which interim orders may be madeE+W

Prospective

20(1)This paragraph applies if an application has been made for an order under Part 1, 2 or 3.E+W

(2)A magistrates' court may make an interim order—

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

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

(3)The High Court may make an interim order on ordering the application to be reheard by a magistrates' court (either after the refusal of an order under paragraph 8 or on an appeal made by virtue of paragraph 46).

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

(5)Sub-paragraph (4) does not affect the power of a court to make an interim order on a further application under Part 1, 2 or 3.

Meaning of interim orderE+W

21(1)An interim order is an order requiring the respondent to make such periodical payments as the court thinks reasonable—E+W

(a)to the applicant,

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

(c)to the applicant for the benefit of such a child.

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

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

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

When interim order may startE+W

22(1)An interim order may provide for payments to be made from such date as the court may specify, except that the date must not be earlier than the date of the making of the application for an order under Part 1, 2 or 3.E+W

(2)Sub-paragraph (1) is subject to paragraph 27(7) and (8).

Payments which can be treated as having been paid on accountE+W

23(1)If an interim order made by the High Court on an appeal made by virtue of paragraph 46 provides for payments to be made from a date earlier than the date of the making of the order, the interim order may provide that payments made by the respondent under an order made by a magistrates' court are to be treated, to such extent and in such manner as may be provided by the interim order, as having been paid on account of any payment provided for by the interim order.E+W

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

When interim order ceases to have effectE+W

24(1)Subject to sub-paragraphs (2) and (3), an interim order made on an application for an order under Part 1, 2 or 3 ceases to have effect on the earliest of the following dates—E+W

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

(b)the date on which the period of 3 months beginning with the date of the making of the interim order ends;

(c)the date on which a magistrates' court either makes a final order on, or dismisses, the application.

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

(a)the magistrates' court which made the order, or

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

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

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

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

(b)the date on which ends the period of 3 months beginning with—

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

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

(c)the date on which the court either makes a final order on, or dismisses, the application.

SupplementaryE+W

25(1)An interim order made by the High Court under paragraph 20(3) on ordering an application to be reheard by a magistrates' court is to be treated for the purposes of—E+W

(a)its enforcement, and

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

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

(2)No appeal lies from the making of or refusal to make, the variation of or refusal to vary, or the revocation of or refusal to revoke, an interim order.

Part 5 E+WCommencement and duration of orders under Parts 1, 2 and 3

Duration of periodical payments order for a civil partnerE+W

26(1)The court may specify in a periodical payments order made under paragraph 2(1)(a) or Part 3 in favour of a civil partner such term as it thinks fit, except that the term must not—E+W

(a)begin before the date of the making of the application for the order, or

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

(2)If—

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

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

the periodical payments order ceases to have effect (regardless of anything in it) on the formation of a subsequent civil partnership or marriage by that civil partner, except in relation to any arrears due under the order on the date of that event.

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

27(1)Subject to sub-paragraph (5), no order is to be made under paragraph 2(1)(c) or (d) or Part 3 in favour of a child who has reached 18.E+W

(2)The term to be specified in a periodical payments order made under paragraph 2(1)(c) or Part 3 in favour of a child may begin with—

(a)the date of the making of an application for the order or a later date, or

(b)a date ascertained in accordance with sub-paragraph (7) or (8).

(3)The term to be specified in such an order—

(a)must not in the first instance extend beyond the date of the birthday of the child next following his reaching the upper limit of the compulsory school age unless the court considers that in the circumstances of the case the welfare of the child requires that it should extend to a later date, and

(b)must not in any event, subject to sub-paragraph (5), extend beyond the date of the child’s 18th birthday.

(4)Sub-paragraph (3)(a) must be read with section 8 of the Education Act 1996 (c. 56) (which applies to determine for the purposes of any enactment whether a person is of compulsory school age).

(5)Sub-paragraphs (1) and (3)(b) do not apply in the case of a child if it appears to the court that—

(a)the child is, or will be, or, if such an order were made without complying with either or both of those provisions, would be—

(i)receiving instruction at an educational establishment, or

(ii)undergoing training for a trade, profession or vocation,

whether or not also the child is, will be or would be, in gainful employment, or

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

(6)Any order made under paragraph 2(1)(c) or Part 3 in favour of a child, regardless of anything in the order, ceases to have effect on the death of the person liable to make payments under the order.

(7)If—

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

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

(i)in accordance with section 8 of the Child Support Act 1991 (c. 48), and

(ii)before the end of 6 months beginning with the making of the current calculation,

the term to be specified in any such order made on that application may be expressed to begin on, or at any time after, the earliest permitted date.

(8)The earliest permitted date” is whichever is the later of—

(a)the date 6 months before the application is made, or

(b)the date on which the current calculation took effect or, where successive maintenance calculations have been continuously in force with respect to a child, on which the first of those calculations took effect.

(9)If—

(a)a maintenance calculation ceases to have effect by or under any provision of the 1991 Act, and

(b)an application is made, before the end of 6 months beginning with the relevant date, for a periodical payments order under paragraph 2(1)(c) or Part 3 in favour of a child with respect to whom that maintenance calculation was in force immediately before it ceased to have effect,

the term to be specified in any such order, or in any interim order under Part 4, made on that application, may begin with the date on which that maintenance calculation ceased to have effect or any later date.

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

(11)In this Schedule “maintenance calculation” has the same meaning as it has in the 1991 Act by virtue of section 54 of the 1991 Act as read with any regulations in force under that section.

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Modifications etc. (not altering text)

Application of paragraphs 26 and 27 to Part 2 ordersE+W

28(1)Subject to sub-paragraph (3), paragraph 26 applies in relation to an order under Part 2 which requires periodical payments to be made to a civil partner for his own benefit as it applies in relation to an order under paragraph 2(1)(a).E+W

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

(3)If—

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

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

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

Effect on certain orders of parties living togetherE+W

29(1)Sub-paragraph (2) applies if periodical payments are required to be made to a civil partner (whether for the civil partner’s own benefit or for the benefit of a child of the family)—E+W

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

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

(2)The order is enforceable even though—

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

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

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

(3)Sub-paragraph (4) applies if—

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

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

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

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

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

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

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

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

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

a magistrates' court may, on an application made by either civil partner, make an order declaring that the order ceased to have effect from such date as the court may specify.

Part 6 E+WVariation etc. of orders

Power to vary, revoke, suspend or revive orderE+W

30(1)If a magistrates' court has made an order for the making of periodical payments under Part 1, 2 or 3, the court may, on an application made under this Part—E+W

(a)vary or revoke the order,

(b)suspend any provision of it temporarily, or

(c)revive any provision so suspended.

(2)If a magistrates' court has made an interim order under Part 4, the court may, on an application made under this Part—

(a)vary or revoke the order,

(b)suspend any provision of it temporarily, or

(c)revive any provision so suspended,

except that it may not by virtue of this sub-paragraph extend the period for which the order is in force.

Powers to order lump sum on variationE+W

31(1)If a magistrates' court has made an order under paragraph 2(1)(a) or (c) for the making of periodical payments, the court may, on an application made under this Part, make an order for the payment of a lump sum under paragraph 2(1)(b) or (d).E+W

(2)If a magistrates' court has made an order under Part 2 for the making of periodical payments by a civil partner the court may, on an application made under this Part, make an order for the payment of a lump sum by that civil partner—

(a)to the other civil partner, or

(b)to a child of the family or to that other civil partner for the benefit of that child.

(3)Where the court has power by virtue of this paragraph to make an order for the payment of a lump sum—

(a)the amount of the lump sum must not exceed the maximum amount that may at that time be required to be paid under Part 1, but

(b)the court may make an order for the payment of a lump sum not exceeding that amount even if the person required to pay it was required to pay a lump sum by a previous order under this Schedule.

(4)Where—

(a)the court has power by virtue of this paragraph to make an order for the payment of a lump sum, and

(b)the respondent or the applicant (as the case may be) has agreed to pay a lump sum of an amount exceeding the maximum amount that may at that time be required to be paid under Part 1,

the court may, regardless of sub-paragraph (3), make an order for the payment of a lump sum of that amount.

Power to specify when order as varied is to take effectE+W

32An order made under this Part which varies an order for the making of periodical payments may provide that the payments as so varied are to be made from such date as the court may specify, except that, subject to paragraph 33, the date must not be earlier than the date of the making of the application under this Part.E+W

33(1)If—E+W

(a)there is in force an order (“the order”)—

(i)under paragraph 2(1)(c),

(ii)under Part 2 making provision of a kind set out in paragraph 10(1)(c) (regardless of whether it makes provision of any other kind mentioned in paragraph 10(1)(c)),

(iii)under paragraph 16(1)(b), or

(iv)which is an interim order under Part 4 under which the payments are to be made to a child or to the applicant for the benefit of a child,

(b)the order requires payments specified in it to be made to or for the benefit of more than one child without apportioning those payments between them,

(c)a maintenance calculation (“the calculation”) is made with respect to one or more, but not all, of the children with respect to whom those payments are to be made, and

(d)an application is made, before the end of 6 months beginning with the date on which the calculation was made, for the variation or revocation of the order,

the court may, in exercise of its powers under this Part to vary or revoke the order, direct that the variation or revocation is to take effect from the date on which the calculation took effect or any later date.

(2)If—

(a)an order (“the child order”) of a kind prescribed for the purposes of section 10(1) of the Child Support Act 1991 is affected by a maintenance calculation,

(b)on the date on which the child order became so affected there was in force an order (“the civil partner’s order”)—

(i)under paragraph 2(1)(a),

(ii)under Part 2 making provision of a kind set out in paragraph 10(1)(a) (regardless of whether it makes provision of any other kind mentioned in paragraph 10(1)(a)),

(iii)under paragraph 16(1)(a), or

(iv)which is an interim order under Part 4 under which the payments are to be made to the applicant (otherwise than for the benefit of a child), and

(c)an application is made, before the end of 6 months beginning with the date on which the maintenance calculation was made, for the civil partner’s order to be varied or revoked,

the court may, in exercise of its powers under this Part to vary or revoke the civil partner’s order, direct that the variation or revocation is to take effect from the date on which the child order became so affected or any later date.

(3)For the purposes of sub-paragraph (2), an order is affected if it ceases to have effect or is modified by or under section 10 of the 1991 Act.

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Modifications etc. (not altering text)

Matters to which court is to have regard in exercising powers under this PartE+W

34(1)In exercising the powers conferred by this Part the court must, so far as it appears to the court just to do so, give effect to any agreement which has been reached between the civil partners in relation to the application.E+W

(2)If—

(a)there is no such agreement, or

(b)if the court decides not to give effect to the agreement,

the court must have regard to all the circumstances of the case, giving first consideration to the welfare while under 18 of any child of the family who has not reached 18.

(3)Those circumstances include any change in any of the matters—

(a)to which the court was required to have regard when making the order to which the application relates, or

(b)in the case of an application for the variation or revocation of an order made under Part 2 or on an appeal made by virtue of paragraph 46, to which the court would have been required to have regard if that order had been made under Part 1.

Variation of orders for periodical payments: further provisionsE+W

35(1)The power of the court under paragraphs 30 to 34 to vary an order for the making of periodical payments includes power, if the court is satisfied that payment has not been made in accordance with the order, to exercise one of its powers under section 59(3)(a) to (d) of the Magistrates' Courts Act 1980 (c. 43).E+W

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

36(1)If—E+W

(a)a magistrates' court has made an order under this Schedule for the making of periodical payments, and

(b)payments under the order are required to be made by any method of payment falling within section 59(6) of the 1980 Act (standing order, etc.),

an application may be made under this sub-paragraph to the court for the order to be varied as mentioned in sub-paragraph (2).

(2)Subject to sub-paragraph (4), if an application is made under sub-paragraph (1), a justices' clerk, after—

(a)giving written notice (by post or otherwise) of the application to the respondent, and

(b)allowing the respondent, within the period of 14 days beginning with the date of the giving of that notice, an opportunity to make written representations,

may vary the order to provide that payments under the order are to be made to the designated officer for the court.

(3)The clerk may proceed with an application under sub-paragraph (1) even if the respondent has not received written notice of the application.

(4)If an application has been made under sub-paragraph (1), the clerk may, if he considers it inappropriate to exercise his power under sub-paragraph (2), refer the matter to the court which, subject to paragraph 37, may vary the order by exercising one of its powers under section 59(3)(a) to (d) of the 1980 Act.

37(1)Before varying the order by exercising one of its powers under section 59(3)(a) to (d) of the 1980 Act, the court must have regard to any representations made by the parties to the application.E+W

(2)If the court does not propose to exercise its power under section 59(3)(c), (cc) or (d) of the 1980 Act, the court must, unless upon representations expressly made in that behalf by the person to whom payments under the order are required to be made it is satisfied that it is undesirable to do so, exercise its power under section 59(3)(b).

38(1)Section 59(4) of the 1980 Act (power of court to order that account be opened) applies for the purposes of paragraphs 35 and 36(4) as it applies for the purposes of section 59.E+W

(2)None of the powers of the court, or of a justices' clerk, conferred by paragraphs 35 to 37 and sub-paragraph (1) is exercisable in relation to an order under this Schedule for the making of periodical payments which is not a qualifying maintenance order (within the meaning of section 59 of the 1980 Act).

Persons who may apply under this PartE+W

39An application under paragraph 30, 31 or 36 may be made—E+W

(a)if it is for the variation or revocation of an order under Part 1, 2, 3 or 4 for periodical payments, by either civil partner, and

(b)if it is for the variation of an order under paragraph 2(1)(c) or Part 2 or 3 for periodical payments to or in respect of a child, also by the child himself, if he has reached 16.

Revival of orders for periodical paymentsE+W

40(1)If an order made by a magistrates' court under this Schedule for the making of periodical payments to or in respect of a child (other than an interim order) ceases to have effect—E+W

(a)on the date on which the child reaches 16, or

(b)at any time after that date but before or on the date on which he reaches 18,

the child may apply to the court which made the order for an order for its revival.

(2)If on such an application it appears to the court that—

(a)the child is, will be or (if an order were made under this sub-paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment, or

(b)there are special circumstances which justify the making of an order under this sub-paragraph,

the court may by order revive the order from such date as the court may specify, not being earlier than the date of the making of the application.

(3)Any order revived under this paragraph may be varied or revoked under paragraphs 30 to 34 in the same way as it could have been varied or revoked had it continued in being.

Variation of instalments of lump sumE+W

41If in the exercise of its powers under section 75 of the 1980 Act a magistrates' court orders that a lump sum required to be paid under this Schedule is to be paid by instalments, the court, on an application made by either the person liable to pay or the person entitled to receive that sum, may vary that order by varying—E+W

(a)the number of instalments payable,

(b)the amount of any instalment payable, and

(c)the date on which any instalment becomes payable.

Supplementary provisions with respect to variation and revocation of ordersE+W

42None of the following powers apply in relation to an order made under this Schedule—E+W

(a)the powers of a magistrates' court to revoke, revive or vary an order for the periodical payment of money and the power of a justices' clerk to vary such an order under section 60 of the 1980 Act;

(b)the power of a magistrates' court to suspend or rescind certain other orders under section 63(2) of the 1980 Act.

Part 7 E+WArrears and repayments

Enforcement etc. of orders for payment of moneyE+W

43Section 32 of the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22) applies in relation to orders under this Schedule as it applies in relation to orders under Part 1 of that Act.E+W

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

44(1)Sub-paragraphs (3) and (4) apply if—E+W

(a)an order made under paragraph 2(1)(a) or Part 2 or 3 has, under paragraph 26(2), ceased to have effect because of the formation of a subsequent civil partnership or marriage by the party (“R”) in whose favour it was made, and

(b)the person liable to make payments under the order (“P”) made payments in accordance with it in respect of a relevant period in the mistaken belief that the order was still subsisting.

(2)Relevant period” means a period after the date of the formation of the subsequent civil partnership or marriage.

(3)No proceedings in respect of a cause of action arising out of the circumstances mentioned in sub-paragraph (1)(a) and (b) is maintainable by P (or P’s personal representatives) against R (or R’s personal representatives).

(4)But on an application made under this paragraph by P (or P’s personal representatives) against R (or R’s personal representatives) the court—

(a)may order the respondent to pay to the applicant a sum equal to the amount of the payments made in respect of the relevant period, or

(b)if it appears to the court that it would be unjust to make that order, may—

(i)order the respondent to pay to the applicant such lesser sum as it thinks fit, or

(ii)dismiss the application.

(5)An order under this paragraph for the payment of any sum may provide for the payment of that sum by instalments of such amount as may be specified in the order.

(6)An application under this paragraph—

(a)may be made in proceedings in the High Court or a county court for leave to enforce, or the enforcement of, the payment of arrears under an order made under paragraph 2(1)(a) or Part 2 or 3, but

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

and accordingly references in this paragraph to the court are references to the High Court or a county court, as the circumstances require.

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

(8)Subject to sub-paragraph (9)—

(a)the designated officer for a magistrates' court to whom any payments under an order made under paragraph 2(1)(a), or Part 2 or 3, are required to be made is not liable for any act done by him in pursuance of the order after the date on which that order ceased to have effect because of the formation of a subsequent civil partnership or marriage by the person entitled to payments under it, and

(b)the collecting officer under an attachment of earnings order made to secure payments under the order under paragraph 2(1)(a), or Part 2 or 3, is not liable 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.

(9)Sub-paragraph (8) applies if (but only if) the act—

(a)was one which he would have been under a duty to do had the order under paragraph 2(1)(a) or Part 2 or 3 not ceased to have effect, and

(b)was done before notice in writing of the formation of the subsequent civil partnership or marriage was given to him by or on behalf of—

(i)the person entitled to payments under the order,

(ii)the person liable to make payments under it, or

(iii)the personal representatives of either of them.

(10)In this paragraph “collecting officer”, in relation to an attachment of earnings order, means—

(a)the officer of the High Court, or

(b)the officer designated by the Lord Chancellor,

to whom a person makes payments in compliance with the order.

Part 8 E+WSupplementary

Restrictions on making of orders under this Schedule: welfare of childrenE+W

45If—E+W

(a)an application is made by a civil partner for an order under Part 1, 2 or 3, and

(b)there is a child of the family who is under 18,

the court must not dismiss or make a final order on the application until it has decided whether to exercise any of its powers under the Children Act 1989 (c. 41) with respect to the child.

Constitution of courts, powers of High Court and county court in relation to orders and appealsE+W

46The following provisions of the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22) apply in relation to an order under this Schedule relating to a civil partnership as they apply in relation to an order under Part 1 of that Act relating to a marriage—E+W

(a)section 28 (powers of the High Court and a county court in relation to certain orders),

(b)section 29 (appeals), and

(c)section 31 (constitution of courts).

Provisions as to jurisdiction and procedureE+W

47(1)Subject to [F44sub-paragraph (1A) and to] section 2 of the Family Law Act 1986 (c. 55) and section 70 of the Magistrates' Courts Act 1980 (c. 43) and any determination of the Lord Chancellor, a magistrates' court has jurisdiction to hear an application for an order under this Schedule if it acts in, or is authorised by the Lord Chancellor to act for, a local justice area in which either the applicant or the respondent ordinarily resides at the date of the making of the application.E+W

[F45(1A)If an application or part of an application for an order under this Schedule relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, a magistrates' court may not entertain that application or that part of it unless it has jurisdiction to do so by virtue of that Regulation and that Schedule.]

(2)Any jurisdiction conferred on a magistrates' court by this Schedule is exercisable even if any party to the proceedings is not domiciled in England and Wales.

[F46(3)The Lord Chancellor may make a determination for the purposes of sub-paragraph (1) only with the concurrence of the Lord Chief Justice.

(4)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 paragraph.]

[F47(5)In this paragraph “the Maintenance Regulation” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.]

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Amendments (Textual)

Meaning of “child of the family”E+W

48In this Schedule “child of the family”, in relation to two people who are civil partners of each other, means—E+W

(a)a child of both of them, and

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

Section 72(4)

SCHEDULE 7E+WFinancial relief in England and Wales after overseas dissolution etc. of a civil partnership

Part 1 E+WFinancial relief

Part applies where civil partnership has been dissolved etc. overseasE+W

1(1)This Part of this Schedule applies where—E+W

(a)a civil partnership has been dissolved or annulled, or the civil partners have been legally separated, by means of judicial or other proceedings in an overseas country, and

(b)the dissolution, annulment or legal separation is entitled to be recognised as valid in England and Wales.

(2)This Part of this Schedule applies even if the date of the dissolution, annulment or legal separation is earlier than the date on which the Part comes into force.

(3)In this Schedule “overseas country” means a country or territory outside the British Islands.

(4)In this Part of this Schedule “child of the family” means—

(a)a child of both of the civil partners, and

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

Either civil partner may make application for financial reliefE+W

2(1)Either of the civil partners may make an application to the court for an order under paragraph 9 or 13.E+W

(2)The rights conferred by sub-paragraph (1) are subject to—

(a)paragraph 3 (civil partner may not apply after forming subsequent civil partnership etc.), and

(b)paragraph 4 (application may not be made until leave to make it has been granted).

(3)An application for an order under paragraph 9 or 13 must be made in a manner prescribed by rules of court.

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Commencement Information

I13Sch. 7 para. 2 wholly in force at 5.12.2005; Sch. 7 para. 2 not in force at Royal Assent see s. 263; Sch. 7 para. 2(3) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 7 para. 2 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

No application after formation of subsequent civil partnership or marriageE+W

3(1)If—E+W

(a)the civil partnership has been dissolved or annulled, and

(b)after the dissolution or annulment, one of the civil partners forms a subsequent civil partnership or marriage,

that civil partner shall not be entitled to make, in relation to the civil partnership, an application for an order under paragraph 9 or 13.

(2)The reference in sub-paragraph (1) to the forming of a subsequent civil partnership or marriage includes a reference to the forming of a civil partnership or marriage which is by law void or voidable.

Leave of court required for making of applicationE+W

4(1)No application for an order under paragraph 9 or 13 shall be made unless the leave of the court has been obtained in accordance with rules of court.E+W

(2)The court shall not grant leave under this paragraph unless it considers that there is substantial ground for the making of an application for such an order.

(3)The court may grant leave under this paragraph notwithstanding that an order has been made by a court in a country outside England and Wales requiring the other civil partner to make any payment, or transfer any property, to the applicant or to a child of the family.

(4)Leave under this paragraph may be granted subject to such conditions as the court thinks fit.

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Commencement Information

I14Sch. 7 para. 4 wholly in force at 5.12.2005; Sch. 7 para. 4 not in force at Royal Assent see s. 263; Sch. 7 para. 4(1) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 7 para. 4 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Interim orders for maintenanceE+W

5(1)Where—E+W

(a)leave is granted under paragraph 4, and

(b)it appears to the court that the civil partner who applied for leave, or any child of the family, is in immediate need of financial assistance,

the court may, subject to sub-paragraph (4), make an interim order for maintenance.

(2)An interim order for maintenance is one requiring the other civil partner to make—

(a)to the applicant, or

(b)to the child,

such periodical payments as the court thinks reasonable for such term as the court thinks reasonable.

(3)The term must be one—

(a)beginning not earlier than the date of the grant of leave, and

(b)ending with the date of the determination of the application made under the leave.

(4)If it appears to the court that the court will, in the event of an application being made under the leave, have jurisdiction to entertain the application only under paragraph 7(4), the court shall not make an interim order under this paragraph.

(5)An interim order under this paragraph may be made subject to such conditions as the court thinks fit.

Paragraphs 7 and 8 apply where application made for relief under paragraph 9 or 13E+W

6Paragraphs 7 and 8 apply where—E+W

(a)one of the civil partners has been granted leave under paragraph 4, and

(b)acting under the leave, that civil partner makes an application for an order under paragraph 9 or 13.

Jurisdiction of the courtE+W

7(1)[F48Subject to sub-paragraph (6),] the court shall have jurisdiction to entertain the application only if one or more of the following jurisdictional requirements is satisfied.E+W

(2)The first requirement is that either of the civil partners—

(a)was domiciled in England and Wales on the date when the leave was applied for, or

(b)was domiciled in England and Wales on the date when the dissolution, annulment or legal separation took effect in the overseas country in which it was obtained.

(3)The second is that either of the civil partners—

(a)was habitually resident in England and Wales throughout the period of one year ending with the date when the leave was applied for, or

(b)was habitually resident in England and Wales throughout the period of one year ending with the date on which the dissolution, annulment or legal separation took effect in the overseas country in which it was obtained.

(4)The third is that either or both of the civil partners had, at the date when the leave was applied for, a beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the civil partnership a civil partnership home of the civil partners.

(5)In sub-paragraph (4) “possession” includes receipt of, or the right to receive, rents and profits, but here “rent” does not include mortgage interest.

[F49(6)If an application or part of an application relates to a matter where jurisdiction falls to be determined by the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, those requirements are to determine whether the court has jurisdiction to entertain the application or that part of it.

(7)In sub-paragraph (6) “the Maintenance Regulation” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.]

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Amendments (Textual)

Duty of the court to consider whether England and Wales is appropriate venue for applicationE+W

8(1)Before deciding the application, the court must consider whether in all the circumstances of the case it would be appropriate for an order of the kind applied for to be made by a court in England and Wales.E+W

(2)[F50Subject to sub-paragraph (4),] if the court is not satisfied that it would be appropriate, the court shall dismiss the application.

(3)The court must, in particular, have regard to the following matters—

(a)the connection which the civil partners have with England and Wales;

(b)the connection which the civil partners have with the country in which the civil partnership was dissolved or annulled or in which they were legally separated;

(c)the connection which the civil partners have with any other country outside England and Wales;

(d)any financial benefit which, in consequence of the dissolution, annulment or legal separation—

(i)the applicant, or

(ii)a child of the family,

has received, or is likely to receive, by virtue of any agreement or the operation of the law of a country outside England and Wales;

(e)in a case where an order has been made by a court in a country outside England and Wales requiring the other civil partner—

(i)to make any payment, or

(ii)to transfer any property,

for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;

(f)any right which the applicant has, or has had, to apply for financial relief from the other civil partner under the law of any country outside England and Wales and, if the applicant has omitted to exercise that right, the reason for that omission;

(g)the availability in England and Wales of any property in respect of which an order under this Schedule in favour of the applicant could be made;

(h)the extent to which any order made under this Schedule is likely to be enforceable;

(i)the length of time which has elapsed since the date of the dissolution, annulment or legal separation.

[F51(4)If the court has jurisdiction in relation to the application or part of it by virtue of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, the court may not dismiss the application or that part of it on the ground mentioned in sub-paragraph (2) if to do so would be inconsistent with the jurisdictional requirements of that Regulation and that Schedule.

(5)In sub-paragraph (4) “the Maintenance Regulation” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.]

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Amendments (Textual)

Orders for financial provision, property adjustment [F52, pension sharing and pension compensation sharing]E+W

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Amendments (Textual)

9(1)Sub-paragraphs (2) and (3) apply where one of the civil partners has made an application for an order under this paragraph.E+W

(2)If the civil partnership has been dissolved or annulled, the court may on the application make any one or more of the orders which it could make under Part 1, 2 [F53, 4 or 4A] of Schedule 5 (financial provision, property adjustment [F54, pension sharing and pension compensation sharing]) if a dissolution order or nullity order had been made in respect of the civil partnership under Chapter 2 of Part 2 of this Act.

(3)If the civil partners have been legally separated, the court may on the application make any one or more of the orders which it could make under Part 1 or 2 of Schedule 5 (financial provision and property adjustment) if a separation order had been made in respect of the civil partners under Chapter 2 of Part 2 of this Act.

(4)Where under sub-paragraph (2) or (3) the court makes—

(a)an order which, if made under Schedule 5, would be a secured periodical payments order,

(b)an order for the payment of a lump sum, or

(c)an order which, if made under that Schedule, would be a property adjustment order,

then, on making that order or at any time afterwards, the court may make any order which it could make under Part 3 of Schedule 5 (sale of property) if the order under sub-paragraph (2) or (3) had been made under that Schedule.

(5)The powers under sub-paragraphs (2) to (4) are subject to paragraph 11.

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Amendments (Textual)

Matters to which court is to have regard in exercising its powers under paragraph 9E+W

10(1)The court, in deciding—E+W

(a)whether to exercise its powers under paragraph 9, and

(b)if so, in what way,

must act in accordance with this paragraph.

(2)The court must have regard to all the circumstances of the case, giving first consideration to the welfare, while under 18, of any child of the family who has not reached 18.

(3)The court, in exercising its powers under paragraph 9 in relation to one of the civil partners—

(a)must in particular have regard to the matters mentioned in paragraph 21(2) of Schedule 5, and

(b)shall be under duties corresponding to those imposed by sub-paragraphs (2) and (3) of paragraph 23 of that Schedule (duties to consider termination of financial obligations) where it decides to exercise under paragraph 9 powers corresponding to the powers referred to in those sub-paragraphs.

(4)The matters to which the court is to have regard under sub-paragraph (3)(a), so far as relating to paragraph 21(2)(a) of Schedule 5 (regard to be had to financial resources), include—

(a)any benefits under a pension arrangement which either of the civil partners has or is likely to have, and

(b)any PPF compensation to which a civil partner is or is likely to be entitled,

(whether or not in the foreseeable future).

(5)The matters to which the court is to have regard under sub-paragraph (3)(a), so far as relating to paragraph 21(2)(h) of Schedule 5 (regard to be had to benefits that cease to be acquirable), include—

(a)any benefits under a pension arrangement which, because of the dissolution or annulment of the civil partnership, one of the civil partners will lose the chance of acquiring, and

(b)any PPF compensation which, because of the making of the dissolution or nullity order, a civil partner will lose the chance of acquiring entitlement to.

(6)The court, in exercising its powers under paragraph 9 in relation to a child of the family, must in particular have regard to the matters mentioned in paragraph 22(2) of Schedule 5.

(7)The court, in exercising its powers under paragraph 9 against a civil partner (“A”) in favour of a child of the family who is not A’s child, must also have regard to the matters mentioned in paragraph 22(3) of Schedule 5.

(8)Where an order has been made by a court outside England and Wales for—

(a)the making of payments, or

(b)the transfer of property,

by one of the civil partners, the court in considering in accordance with this paragraph the financial resources of the other civil partner, or of a child of the family, shall have regard to the extent to which that order has been complied with or is likely to be complied with.

(9)In this paragraph—

(a)pension arrangement” has the same meaning as in Part 4 of Schedule 5,

(b)references to benefits under a pension arrangement include any benefits by way of pension, whether under a pension arrangement or not, and

(c)PPF compensation” has the same meaning as in F55. . . Schedule 5.

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Amendments (Textual)

Commencement Information

I15Sch. 7 para. 10 wholly in force at 6.4.2006; Sch. 7 para. 10 not in force at Royal Assent see s. 263; Sch. 7 para. 10(1)(2)(3)(4)(a)(5)(a)(6)(7)(8)(9)(a)(b) in force at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1 and Sch. 7 para. 10(4)(b)(5)(b)(9)(c) in force at 6.4.2006 by S.I. 2006/639, art. 2(b)

Restriction of powers under paragraph 9 where jurisdiction depends on civil partnership home in England or WalesE+W

11(1)Sub-paragraphs (2) to (4) apply where the court has jurisdiction to entertain an application for an order under paragraph 9 only because a dwelling-house which was a civil partnership home of the civil partners is situated in England or Wales.E+W

(2)The court may make under paragraph 9 any one or more of the following orders (but no other)—

(a)an order that one of the civil partners shall pay to the other a specified lump sum;

(b)an order that one of the civil partners shall pay to a child of the family, or to a specified person for the benefit of a child of the family, a specified lump sum;

(c)an order that one of the civil partners shall transfer that civil partner’s interest in the dwelling-house, or a specified part of that interest—

(i)to the other,

(ii)to a child of the family, or

(iii)to a specified person for the benefit of a child of the family;

(d)an order that a settlement of the interest of one of the civil partners in the dwelling-house, or a specified part of that interest, be made to the satisfaction of the court for the benefit of any one or more of—

(i)the other civil partner and the children of the family, or

(ii)either or any of them;

(e)an order varying for the benefit of any one or more of—

(i)the civil partners and the children of the family, or

(ii)either or any of them,

a relevant settlement so far as that settlement relates to an interest in the dwelling-house;

(f)an order extinguishing or reducing the interest of either of the civil partners under a relevant settlement so far as that interest is an interest in the dwelling-house;

(g)an order for the sale of the interest of one of the civil partners in the dwelling-house.

(3)Where under paragraph 9 the court makes just one order for the payment of a lump sum by one of the civil partners, the amount of the lump sum must not exceed the amount specified in sub-paragraph (5).

(4)Where under paragraph 9 the court makes two or more orders each of which is an order for the payment of a lump sum by the same civil partner, the total of the amounts of the lump sums must not exceed the amount specified in sub-paragraph (5).

(5)That amount is—

(a)if the interest of the paying civil partner in the dwelling-house is sold in pursuance of an order made under sub-paragraph (2)(g), the amount of the proceeds of sale of that interest after deducting from those proceeds any costs incurred in the sale of that interest;

(b)if that interest is not so sold, the amount which in the opinion of the court represents the value of that interest.

(6)Where the interest of one of the civil partners in the dwelling-house is held jointly or in common with any other person or persons—

(a)the reference in sub-paragraph (2)(g) to the interest of one of the civil partners shall be construed as including a reference to the interest of that other person, or the interest of those other persons, in the dwelling-house, and

(b)the reference in sub-paragraph (5)(a) to the amount of the proceeds of a sale ordered under sub-paragraph (2)(g) shall be construed as a reference to that part of those proceeds which is attributable to the interest of that civil partner in the dwelling-house.

(7)In sub-paragraph (2)—

  • relevant settlement” means a settlement made, during the subsistence of the civil partnership or in anticipation of its formation, on the civil partners, including one made by will or codicil;

  • specified” means specified in the order.

Consent orders under paragraph 9E+W

12(1)On an application for a consent order under paragraph 9, the court may make an order in the terms agreed on the basis only of the prescribed information furnished with the application.E+W

(2)Sub-paragraph (1) does not apply if the court has reason to think that there are other circumstances into which it ought to inquire.

(3)Sub-paragraph (1) applies to an application for a consent order varying or discharging an order under paragraph 9 as it applies to an application for such an order.

(4)Sub-paragraph (1) applies despite paragraph 10.

(5)In this paragraph—

  • consent order”, in relation to an application for an order, means an order in the terms applied for to which the respondent agrees;

  • prescribed” means prescribed by rules of court.

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Commencement Information

I16Sch. 7 para. 12 wholly in force at 5.12.2005; Sch. 7 para. 12 not in force at Royal Assent see s. 263; Sch. 7 para. 12(1)(5) in force for certain purposes at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 7 para. 12 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Orders for transfers of tenancies of dwelling-housesE+W

13(1)This paragraph applies if—E+W

(a)an application is made by one of the civil partners for an order under this paragraph, and

(b)one of the civil partners is entitled, either in his own right or jointly with the other civil partner, to occupy a dwelling-house in England or Wales by virtue of a tenancy which is a relevant tenancy within the meaning of Schedule 7 to the Family Law Act 1996 (c. 27).

(2)The court may make in relation to that dwelling-house any order which it could make under Part 2 of that Schedule (order transferring tenancy or switching statutory tenants) if it had power to make a property adjustment order under Part 2 of Schedule 5 to this Act with respect to the civil partnership.

(3)The provisions of paragraphs 10, 11 and 14(1) of Schedule 7 to the Family Law Act 1996 (payments by transferee, pre-transfer liabilities and right of landlord to be heard) apply in relation to any order under this paragraph as they apply to any order under Part 2 of that Schedule.

Application to orders under paragraphs 5 and 9 of provisions of Schedule 5E+W

14(1)The following provisions of Schedule 5 apply in relation to an order made under paragraph 5 or 9 of this Schedule as they apply in relation to a like order made under that Schedule—E+W

(a)paragraph 3(1) to (3) and (7) (lump sums);

(b)paragraph 11(2) to (4), 12(2), 13 and 14 (orders for sale);

(c)paragraphs 17, 18 and 19(2) and (3) (pension sharing);

[F56(ca)paragraphs 19C, 19D and 19E(2) and (3) (pension compensation sharing);]

(d)paragraphs 25 and 26 (orders under Part 1 relating to pensions);

(e)paragraphs 31 to [F5734 and 35 to 37] (orders under Part 1 relating to pensions where Board has assumed responsibility for scheme);

[F58(ea)paragraph 34A (orders under Part 1 relating to pension compensation attachment);]

(f)paragraphs 47(1) to (4) and (6) and 49 (duration of orders);

(g)paragraphs 50 to 54 and 57 to 62, except paragraph 50(1)(g) (variation etc. of orders);

(h)paragraphs 63 to 65 (arrears and repayments);

(i)paragraphs 76 to [F5979A] (drafting of instruments, bankruptcy, mental disorder [F60, pension-sharing appeals and pension compensation-sharing appeals]).

(2)Sub-paragraph (1)(d) [F61and (ea)] does not apply where the court has jurisdiction to entertain an application for an order under paragraph 9 only because a dwelling-house which was a civil partnership home of the civil partners is situated in England or Wales.

(3)Paragraph 27 of Schedule 5 (change of pension arrangement under which rights are shared) applies in relation to an order made under paragraph 9 of this Schedule by virtue of sub-paragraph (1)(d) above as it applies to an order made under Part 1 of Schedule 5 by virtue of paragraph 25 or 26 of that Schedule.

(4)The Lord Chancellor may by regulations make for the purposes of this Schedule provision corresponding to any provision which may be made by him under paragraph 28(1) to (3) of Schedule 5 (supplementary provision about orders relating to pensions under Part 1 of that Schedule) [F62or under paragraphs 34B to 36 of that Schedule (supplementary provision about orders relating to pension compensation)].

(5)The power to make regulations under this paragraph is exercisable by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.

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Amendments (Textual)

F62Words in Sch. 7 para. 14(4) added (6.3.2011 for specified purposes otherwise 6.4.2011) by Pensions Act 2008 (c. 30), ss. 120, 149, Sch. 6 para. 20(4)(g); S.I. 2011/664, art. 2(2)(3), Sch.

Modifications etc. (not altering text)

C9Sch. 7 para. 14 wholly in force at 5.12.2005; Sch. 7 para. 14 not in force at Royal Assent see s. 263; Sch. 7 para. 14(4)(5) in force at 15.4.2005 by S.I. 2005/1112, art. 2, Sch. 1 and Sch. 7 para. 14 in force otherwise at 5.12.2005 by S.I. 2005/3175, art. 2(1), Sch. 1

Avoidance of transactions designed to defeat claims under paragraphs 5 and 9E+W

15(1)Sub-paragraphs (2) and (3) apply where one of the civil partners (“A”) is granted leave under paragraph 4 to make an application for an order under paragraph 9.E+W

(2)If the court is satisfied, on application by A, that the other civil partner (“B”) is, with the intention of defeating a claim by A, about to—

(a)make any disposition, or

(b)transfer out of the jurisdiction, or otherwise deal with, any property,

it may make such order as it thinks fit for restraining B from doing so or otherwise for protecting the claim.

(3)If the court is satisfied, on application by A—

(a)that the other civil partner (“B”) has, with the intention of defeating a claim by A, made a reviewable disposition, and

(b)that, if the disposition were set aside—

(i)financial relief under paragraph 5 or 9, or

(ii)different financial relief under paragraph 5 or 9,

would be granted to A,

it may make an order setting aside the disposition.

(4)If—

(a)an order under paragraph 5 or 9 has been made by the court at the instance of one of the civil partners (“A”), and

(b)the court is satisfied, on application by A, that the other civil partner (“B”) has, with the intention of defeating a claim by A, made a reviewable disposition,

the court may make an order setting aside the disposition.

(5)Where the court has jurisdiction to entertain an application for an order under paragraph 9 only under paragraph 7(4), it shall not make any order under sub-paragraph (2), (3) or (4) in respect of any property other than the dwelling-house concerned.

(6)Where the court makes an order under sub-paragraph (3) or (4) 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).

(7)For the purposes of sub-paragraphs (3) and (4), but subject to sub-paragraph (8), any disposition made by B is a “reviewable disposition” (whether made before or after the commencement of A’s application under that sub-paragraph).

(8)A disposition made by B is not a reviewable disposition for those purposes if made for valuable consideration (other than formation of a civil partnership) 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 B to defeat A’s claim.

(9)A reference in this paragraph to defeating a claim by one of the civil partners is a reference to—

(a)preventing financial relief being granted, or reducing the amount of financial relief which might be granted, under paragraph 5 or 9 at the instance of that civil partner, or

(b)frustrating or impeding the enforcement of any order which might be, or has been, made under paragraph 5 or 9 at the instance of that civil partner.

Presumptions for the purposes of paragraph 15E+W

16(1)Sub-paragraph (3) applies where—E+W

(a)an application is made under paragraph 15(2) or (3) by one of the civil partners with respect to—

(i)a disposition which took place less than 3 years before the date of the application, or

(ii)a disposition or other dealing with property which is about to take place, and

(b)the court is satisfied that the disposition or other dealing would (apart from paragraph 15 and this paragraph of this Schedule) have the consequence of defeating a claim by the applicant.

(2)Sub-paragraph (3) also applies where—

(a)an application is made under paragraph 15(4) by one of the civil partners with respect to a disposition which took place less than 3 years before the date of the application, and

(b)the court is satisfied that the disposition has had the consequence of defeating a claim by the applicant.

(3)It shall be presumed, unless the contrary is shown, that the person who—

(a)disposed of, or

(b)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.

(4)A reference in this paragraph to defeating a claim by one of the civil partners has the meaning given by paragraph 15(9).

Part 2 E+WSteps to prevent avoidance prior to application for leave under paragraph 4

Prevention of transactions intended to defeat prospective claims under paragraphs 5 and 9E+W

17(1)If it appears to the court, on application by one of the persons (“A”) who formed a civil partnership—E+W

(a)that the civil partnership has been dissolved or annulled, or that the civil partners have been legally separated, by means of judicial or other proceedings in an overseas country,

(b)that A intends to apply for leave to make an application for an order under paragraph 9 as soon as he or she has been habitually resident in England and Wales for the period of one year, and

(c)that the other civil partner (“B”) is, with the intention of defeating A’s claim, about to—

(i)make any disposition, or

(ii)transfer out of the jurisdiction, or otherwise deal with, any property,

the court may make such order as it thinks fit for restraining B from taking such action as is mentioned in paragraph (c).

(2)Sub-paragraph (1) applies even if the date of the dissolution, annulment or legal separation is earlier than the date on which that sub-paragraph comes into force.

(3)Sub-paragraph (4) applies where—

(a)an application is made under sub-paragraph (1) with respect to—

(i)a disposition which took place less than 3 years before the date of the application, or

(ii)a disposition or other dealing with property which is about to take place, and

(b)the court is satisfied that the disposition or other dealing would (apart from this paragraph of this Schedule) have the consequence of defeating a claim by the applicant.

(4)It shall be presumed, unless the contrary is shown, that the person who—

(a)disposed of, or

(b)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.

(5)A reference in this paragraph to defeating a person’s claim is a reference to preventing financial relief being granted, or reducing the amount of financial relief which might be granted, under paragraph 5 or 9 at the instance of that person.

Part 3 E+WSupplementary

Paragraphs 15 to 17: meaning of “disposition” and savingE+W

18(1)In paragraphs 15 to 17 “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.E+W

(2)The provisions of paragraphs 15 to 17 are without prejudice to any power of the High Court to grant injunctions under section 37 of the [F63Senior Courts Act 1981](c. 54).

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Amendments (Textual)

Interpretation of ScheduleE+W

19In this Schedule—E+W

  • the court” means the High Court or, where a county court has jurisdiction by virtue of Part 5 of the Matrimonial and Family Proceedings Act 1984 (c. 42), a county court;

  • dwelling-house” includes—

    (a)

    any building, or part of a building, which is occupied as a dwelling, and

    (b)

    any yard, garden, garage or outhouse belonging to, and occupied with, the dwelling-house;

  • overseas country” has the meaning given by paragraph 1(3).

Section 81

SCHEDULE 8E+WHousing and tenancies

Law of Property Act 1925 (c. 20)E+W

1(1)Amend section 149(6) (which includes provision for a lease determinable on marriage of the lessee to take effect as a lease for 90 years determinable by notice after the lessee’s marriage) as follows.E+W

(2)After “or on the marriage of the lessee,” insert “ or on the formation of a civil partnership between the lessee and another person, ”.

(3)For “after the death or marriage (as the case may be) of the original lessee, or of the survivor of the original lessees,” substitute “ after (as the case may be) the death or marriage of, or the formation of a civil partnership by, the original lessee or the survivor of the original lessees, ”.

Landlord and Tenant Act 1954 (c. 56)E+W

2In paragraph 1(e) of Schedule 3 (grounds for possession: premises required as residence for landlord or family member), for the words from “as a residence” to “spouse, and” substitute as a residence for— E+W

(i)himself,

(ii)any son or daughter of his over eighteen years of age,

(iii)his father or mother, or

(iv)the father, or mother, of his spouse or civil partner,

and .

Leasehold Reform Act 1967 (c. 88)E+W

3In section 1(1ZC)(c) (which refers to section 149(6) of the Law of Property Act 1925), after “terminable after a death or marriage” insert “ or the formation of a civil partnership ”.E+W

4In section 1B (which refers to a tenancy granted so as to become terminable by notice after a death or marriage), for “a death or marriage” substitute “ a death, a marriage or the formation of a civil partnership ”.E+W

5(1)Amend section 3(1) (meaning of “long tenancy”) as follows.E+W

(2)In the words describing section 149(6) of the Law of Property Act 1925, after “terminable after a death or marriage” insert “ or the formation of a civil partnership ”.

(3)In the proviso (exclusion of certain tenancies terminable by notice after death or marriage)—

(a)for “a death or marriage” substitute “ a death, a marriage or the formation of a civil partnership ”, and

(b)in paragraph (a), after “marriage of” insert “ , or the formation of a civil partnership by, ”.

6(1)Amend section 7 (rights of members of family succeeding to tenancy on death) as follows.E+W

(2)In subsection (7) (“family member”), for “wife or husband” (in each place) substitute “ spouse or civil partner ”.

(3)In subsection (8) (surviving spouse’s rights on intestacy)—

(a)in paragraph (a), for “wife or husband” substitute “ spouse or civil partner ”, and

(b)in paragraph (b), for “husband or wife” substitute “ spouse or civil partner ”.

7In section 18(3) (members of landlord’s family whose residential rights exclude enfranchisement or extension), for “wife or husband” (in each place) substitute “ spouse or civil partner ”.E+W

Caravan Sites Act 1968 (c. 52)E+W

8In section 3(2) (“occupier” includes surviving spouse of deceased occupier), for “or widower” (in each place) substitute “ , widower or surviving civil partner ”.E+W

Rent (Agriculture) Act 1976 (c. 80)E+W

9(1)Amend section 3 (protected occupiers by succession) as follows.E+W

(2)For subsection (2) (succession by surviving spouse) substitute—

(2)Where the original occupier was a person who died leaving a surviving partner who was residing in the dwelling-house immediately before the original occupier’s death then, after the original occupier’s death, if the surviving partner has, in relation to the dwelling-house, a relevant licence or tenancy, the surviving partner shall be a protected occupier of the dwelling-house.

(3)In subsection (3) (succession by other family members)—

(a)for “surviving spouse” substitute “ surviving partner ”,

(b)for “his” (in each place) substitute “ the original occupier's ”, and

(c)for “him” substitute “ the original occupier ”.

(4)After subsection (3) insert—

(3A)In subsections (2) and (3) above “surviving partner” means surviving spouse or surviving civil partner.

10(1)Amend section 4 (statutory tenants and tenancies) as follows.E+W

(2)For subsection (3) (surviving spouse’s statutory tenancy) substitute—

(3)If the original occupier was a person who died leaving a surviving partner who was residing in the dwelling-house immediately before the original occupier’s death then, after the original occupier’s death, unless the surviving partner is a protected occupier of the dwelling-house by virtue of section 3(2) above, the surviving partner shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence.

(3)In subsection (4) (statutory tenancy for other family members)—

(a)for “surviving spouse” substitute “ surviving partner ”,

(b)for “his” (in each place) substitute “ the original occupier's ”, and

(c)for “him” substitute “ the original occupier ”.

(4)For subsection (5A) (references to original occupier’s spouse include person living with occupier as his or her wife or husband) substitute—

((5ZA))In subsections (3) and (4) above “surviving partner” means surviving spouse or surviving civil partner.

(5A)For the purposes of subsection (3) above—

(a)a person who was living with the original occupier as his or her husband or wife shall be treated as the spouse of the original occupier, and

(b)a person who was living with the original occupier as if they were civil partners shall be treated as the civil partner of the original occupier,

and, subject to subsection (5B) below, “surviving spouse” and “surviving civil partner” in subsection (5ZA) above shall be construed accordingly.

11In section 31(3)(c) (power of Secretary of State and National Assembly for Wales to require information about occupiers of housing accommodation associated with agricultural or forestry land), after “who has been married to” insert “ , or has been the civil partner of, ”.E+W

12In paragraph 1 of Case 9 in Part 1 of Schedule 4 (discretionary grounds for possession: dwelling required as residence for member of landlord’s family), after “husband” (in each place) insert “ or civil partner ”.E+W

Rent Act 1977 (c. 42)E+W

13(1)In Part 1 of Schedule 1 (statutory tenants by succession), amend paragraph 2 (succession by surviving spouse) as follows.E+W

(2)In sub-paragraph (1), after “surviving spouse” insert “ , or surviving civil partner, ”.

(3)For sub-paragraph (2) substitute—

(2)For the purposes of this paragraph—

(a)a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant, and

(b)a person who was living with the original tenant as if they were civil partners shall be treated as the civil partner of the original tenant.

(4)In sub-paragraph (3), for the words after “the county court” substitute “ shall for the purposes of this paragraph be treated (according to whether that one of them is of the opposite sex to, or of the same sex as, the original tenant) as the surviving spouse or the surviving civil partner. ”

14In Schedule 15 (grounds for possession), in Case 9 in Part 1 (dwelling required as residence for landlord or member of his family), for “wife or husband” substitute “ spouse or civil partner ”.E+W

Protection from Eviction Act 1977 (c. 43)E+W

15In section 4(2)(b) (special provisions for agricultural employees: “occupier” includes surviving spouse of former tenant), for “widow or widower” (in each place) substitute “ surviving spouse or surviving civil partner ”.E+W

Housing Act 1980 (c. 51)E+W

16In section 54(2) (protected shorthold tenancy etc. may not be assigned except in pursuance of certain orders), after paragraph (c) insert , or E+W

(d)Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).

17In section 76(3) (which amends provisions of the Rent (Agriculture) Act 1976 replaced by this Schedule), for “sections 3(2) and (3)(a) and 4(3) and (4)(a)” substitute “ sections 3(3)(a) and 4(4)(a) ”.E+W

Housing Act 1985 (c. 68)E+W

18In sections 39(2)(b) and 160(2)(b) (meaning of “qualifying person” in definition of “exempted disposal”), after “the spouse or a former spouse” insert “ , or the civil partner or a former civil partner, ”.E+W

19In section 39(3) (disposals exempt if in pursuance of certain orders), after paragraph (d) insert , or E+W

(e)Part 2 or 3 of Schedule 5, or paragraph 9 of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders, or orders for the sale of property, in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).

20In section 87(a) (entitlement of tenant’s spouse to succeed to secure tenancy), after “spouse” insert “ or civil partner ”.E+W

21(1)Amend section 88 (cases where secure tenant is a successor) as follows.E+W

(2)In subsection (1)(d), for “(2) and (3)” substitute “ (2) to (3) ”.

(3)After subsection (2) insert—

(2A)A tenant to whom the tenancy was assigned in pursuance of an order under Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.) is a successor only if the other civil partner was a successor.

22(1)Amend section 89 (succession to periodic secured tenancy) as follows.E+W

(2)In subsection (2)(a) (tenant’s spouse is preferred successor), after “spouse” insert “ or civil partner ”.

(3)In subsection (3)(a), after “parents)” in sub-paragraph (iii) insert , or

(iv)Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).

23In section 90(3)(a) (secure tenancy for term certain does not cease to be secure tenancy if vested under certain orders), after sub-paragraph (iii) insert—E+W

(iv)Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.), or.

24In section 91(3)(b) (assignments not prohibited if in pursuance of certain orders), after “parents)” in sub-paragraph (iii) insert , or E+W

(iv)Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).

25In section 99B(2)(e) (subsection applies to assignees in pursuance of certain orders), after “parents)” in sub-paragraph (iii) insert , or E+W

(iv)Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).

26In section 101(3)(c) (assignees in pursuance of certain orders are qualifying successors), after “parents)” in sub-paragraph (iii) insert , or E+W

(iv)Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).

27(1)Amend sections 113 and 186 (meaning of “member of a person’s family” in Parts 3 and 4) as follows.E+W

(2)In subsection (1)(a)—

(a)after “spouse” insert “ or civil partner ”, and

(b)after “live together as husband and wife” insert “ or as if they were civil partners ”.

(3)In subsection (2)(a), after “a relationship by marriage” insert “ or civil partnership ”.

28In section 123(2)(a) (family members with whom right to buy may be exercised), after “is his spouse” insert “ , is his civil partner ”.E+W

29In section 130(3) (persons whose receipt of discount results in reduction of subsequent discount)—E+W

(a)in paragraph (b), after “spouse” insert “ , or civil partner, ” and

(b)in paragraph (c), after “deceased spouse” insert “ , or deceased civil partner, ”.

30In section 160(3) (right to buy: disposals in pursuance of certain orders are exempted), after paragraph (d) insert , or E+W

(e)Part 2 or 3 of Schedule 5, or paragraph 9 of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders, or orders for the sale of property, in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).

31In section 171B(4)(b) (persons who become tenants in pursuance of certain orders are qualifying successors), after sub-paragraph (iv) insert or E+W

(v)an order under Part 2 of Schedule 5, or a property adjustment order under paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.),.

32In section 554(2A) (grant by registered social landlords to former owner-occupier of defective dwelling), for paragraph (b) substitute—E+W

(b)is the spouse or civil partner, or a former spouse or former civil partner, or the surviving spouse or surviving civil partner, of a person falling within paragraph (a); or.

33In Part 1 of Schedule 2 (secure tenancies: grounds for possession if court considers possession reasonable), in ground 2A (violence by member of a couple)—E+W

(a)for “a married couple or” substitute “ a married couple, a couple who are civil partners of each other, ” and

(b)after “as husband or wife” insert “ or a couple living together as if they were civil partners ”.

34In paragraphs 2, 5 and 5A of Schedule 4 (qualifying period for right to buy and discount)—E+W

(a)after “deceased spouse” in paragraph (c) of each of those paragraphs insert “ , or deceased civil partner, ” and

(b)after “spouse” (in each other place) insert “ or civil partner ”.

35(1)Amend Schedule 6A (redemption of landlord’s share) as follows.E+W

(2)In paragraph 1(2)(a) (meaning of “excluded disposal”), after “spouse” insert “ or civil partner ”.

(3)In paragraph 1(2)(c) (disposals excluded if in pursuance of certain orders), after sub-paragraph (iv) insert or

(v)Part 2 or 3 of Schedule 5, or paragraph 9 of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders, or orders for the sale of property, in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.),.

(4)In paragraphs 4(3)(b) and 12(1), (2) and (3)(d), for “qualifying spouse” substitute “ qualifying partner ”.

(5)In paragraph 12(2) (which will define “qualifying partner”), for paragraph (c) and the words after that paragraph substitute—

(c)he—

(i)is the spouse, the civil partner, a former spouse, a former civil partner, the surviving spouse, the surviving civil partner, a surviving former spouse or a surviving former civil partner of the person who immediately before that time was entitled to the interest to which this paragraph applies or, as the case may be, the last remaining such interest, or

(ii)is the surviving spouse, the surviving civil partner, a surviving former spouse or a surviving former civil partner of a person who immediately before his death was entitled to such an interest.

Agricultural Holdings Act 1986 (c. 5)E+W

36(1)In sections 35(2) and 49(3) (interpretation respectively of sections 36 to 48, and sections 49 to 58, etc.), amend the definition of “close relative” as follows.E+W

(2)In paragraph (a), for “or husband” substitute “ , husband or civil partner ”.

(3)In paragraph (d), after “marriage” (in each place) insert “ or civil partnership ”.

37In section 36 (eligible person may apply for new tenancy on death of tenant), after subsection (4) insert—E+W

(4A)In the case of the deceased’s civil partner the reference in subsection (3)(a) above to the relative’s agricultural work shall be read as a reference to agricultural work carried out by either the civil partner or the deceased (or both of them).

38In section 50 (eligible person may apply for new tenancy on retirement of tenant), after subsection (3) insert—E+W

(3A)In the case of the civil partner of the retiring tenant the reference in subsection (2)(a) above to the relative’s agricultural work shall be read as a reference to agricultural work carried out by either the civil partner or the retiring tenant (or both of them).

39(1)Amend Schedule 6 (eligibility to apply for new tenancy under Part 4) as follows.E+W

(2)In paragraph 1(2) (control of body corporate by deceased’s close relative)—

(a)after “or his spouse” insert “ or his civil partner ”, and

(b)after “together” insert “ or he and his civil partner together ”.

(3)In paragraph 1 (preliminary), after sub-paragraph (3) insert—

(4)Any reference in this Schedule to the civil partner of a close relative of the deceased does not apply in relation to any time when the relative’s civil partnership is subject to—

(a)a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004, or

(b)a dissolution order, nullity order or presumption of death order that is a conditional order under that Chapter.

(4)In paragraph 6(2) (no disregard of occupation by relative under tenancy granted by his spouse), after “spouse” insert “ or civil partner ”.

(5)In paragraph 9(1)(a) (occupation by spouse of relative treated as occupation by relative), after “spouse” insert “ , or civil partner, ”.

(6)In paragraph 9(2) (cases involving joint occupation by spouse, or controlled body, and another)—

(a)for the words from “joint occupation of land” to “sub-paragraphs” substitute joint occupation of land by—

(a)his spouse or civil partner or a body corporate, and

(b)any other person or persons,

sub-paragraphs , and

(b)after “spouse” (in the second place) insert “ or civil partner, ”.

(7)In paragraph 10(3)(a) (meaning of “connected person”), after “spouse” insert “ or civil partner ”.

(8)In the italic heading before each of paragraphs 9 and 10, after “spouse” insert “ , civil partner ”.

Landlord and Tenant Act 1987 (c. 31)E+W

Prospective

40(1)Amend section 4 (meaning of “relevant disposal” for purposes of tenants' rights of first refusal) as follows.E+W

(2)In subsection (2)(c) (disposals in pursuance of certain orders not relevant disposals), after sub-paragraph (vi) insert—

(vii)Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of a civil partnership, etc.), or

(viii)Part 3 of Schedule 5, or paragraph 9(4) of Schedule 7, to the Civil Partnership Act 2004 (orders for the sale of property in connection with civil partnership proceedings or after overseas dissolution of a civil partnership, etc.) where the order includes provision requiring the property concerned to be offered for sale to a person or class of persons specified in the order;.

(3)In subsection (5)(a)—

(a)after “spouse” insert “ or civil partner ”, and

(b)after “live together as husband and wife” insert “ or as if they were civil partners ”.

(4)In subsection (6)(a), after “a relationship by marriage” insert “ or civil partnership ”.

Housing Act 1988 (c. 50)E+W

41(1)Amend section 17 (succession to assured periodic tenancy by spouse) as follows.E+W

(2)In subsection (1), after “spouse” (in each place) insert “ or civil partner ”.

(3)For subsection (4) substitute—

(4)For the purposes of this section—

(a)a person who was living with the tenant as his or her wife or husband shall be treated as the tenant’s spouse, and

(b)a person who was living with the tenant as if they were civil partners shall be treated as the tenant’s civil partner.

(4)In subsection (5), for the words after “the county court” substitute “ shall for the purposes of this section be treated (according to whether that one of them is of the opposite sex to, or of the same sex as, the tenant) as the tenant’s spouse or the tenant’s civil partner. ”

42In section 82(1)(b) (after disposal by housing action trust, legal assistance may be given to surviving spouse of pre-disposal tenant), for “or widower” substitute “ , widower or surviving civil partner ”.E+W

43(1)Amend Schedule 2 (assured tenancies: grounds for possession) as follows.E+W

(2)In Part 1 (cases where court must order possession), in paragraph (b) of Ground 1 (landlord previously resident or requiring premises as residence for himself or his spouse), for “his or his spouse's” substitute “ his, his spouse’s or his civil partner's ”.

(3)In Part 2 (cases where court may order possession), in Ground 14A (violence by member of a couple)—

(a)for “a married couple or” substitute “ a married couple, a couple who are civil partners of each other, ” and

(b)after “as husband or wife” insert “ or a couple living together as if they were civil partners ”.

44(1)Amend paragraph 3 of Schedule 3 (agricultural worker condition where dwelling occupied by surviving spouse or family member of previous qualifying occupier) as follows.E+W

(2)In sub-paragraphs (1)(c)(i), (3)(a) and (6), for “widow or widower” substitute “ surviving partner ”.

(3)For sub-paragraph (2) substitute—

(2)For the purposes of sub-paragraph (1)(c)(i) above and sub-paragraph (3) below—

(a)surviving partner” means widow, widower or surviving civil partner; and

(b)a surviving partner of the previous qualifying occupier of the dwelling-house is a qualifying surviving partner if that surviving partner was residing in the dwelling-house immediately before the previous qualifying occupier’s death.

(4)For sub-paragraph (5) (person living as wife or husband with previous occupier) substitute—

(5)For the purposes of sub-paragraph (2)(a) above—

(a)a person who, immediately before the previous qualifying occupier’s death, was living with the previous occupier as his or her wife or husband shall be treated as the widow or widower of the previous occupier, and

(b)a person who, immediately before the previous qualifying occupier’s death, was living with the previous occupier as if they were civil partners shall be treated as the surviving civil partner of the previous occupier.

45(1)Amend paragraph 4 of Schedule 11 (exempted disposals by housing action trusts) as follows.E+W

(2)In sub-paragraph (2)(b) (meaning of “qualifying person” in definition of “exempted disposal”), after “the spouse or a former spouse” insert “ , or the civil partner or a former civil partner, ”.

(3)In sub-paragraph (4) (disposals in pursuance of certain orders), after paragraph (d) insert , or

(e)Part 2 or 3 of Schedule 5, or paragraph 9 of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders, or orders for the sale of property, in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).

Local Government and Housing Act 1989 (c. 42)E+W

46In paragraph 5(1)(c) of Schedule 10 (long residential tenancies: grounds for possession: premises required as residence for landlord or family member), for the words from “as a residence” to “mother and,” substitute as a residence for— E+W

(i)himself,

(ii)any son or daughter of his over eighteen years of age,

(iii)his father or mother, or

(iv)the father, or mother, of his spouse or civil partner,

and, .

Leasehold Reform, Housing and Urban Development Act 1993 (c. 28)E+W

47(1)Amend section 7 (meaning of “long lease”) as follows.E+W

(2)In subsection (1)(b) (which refers to section 149(6) of the Law of Property Act 1925), after “terminable after a death or marriage” insert “ or the formation of a civil partnership ”.

(3)In subsection (2) (exclusion of certain leases terminable by notice after death or marriage)—

(a)for “a death or marriage” substitute “ a death, a marriage or the formation of a civil partnership ”, and

(b)in paragraph (a), after “marriage of” insert “ , or the formation of a civil partnership by, ”.

48In section 10(5) (members of family of resident landlord), for “wife or husband” (in each place) substitute “ spouse or civil partner ”.E+W

Agricultural Tenancies Act 1995 (c. 8)E+W

49In section 7(3) (which refers to section 149(6) of the Law of Property Act 1925), after “marriage of” insert “ , or formation of a civil partnership by, ”.E+W

Housing Act 1996 (c. 52)E+W

50(1)Amend section 15 (relevant and exempted disposals) as follows.E+W

(2)In subsection (5)(b) (meaning of “qualifying person” in the definition of “exempted disposal”), after “the spouse or a former spouse” insert “ , or the civil partner or a former civil partner, ”.

(3)In subsection (6) (disposals in pursuance of certain orders are exempt), after paragraph (d) insert ; or

(e)Part 2 or 3 of Schedule 5, or paragraph 9 of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders, or orders for the sale of property, in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).

51(1)Amend sections 62 and 140 (meaning of “member of a person’s family” in Part 1 and in Chapter 1 of Part 5) as follows.E+W

(2)In subsection (1)(a)—