Office of Public Sector Information

Part II Financial Relief for Parties to Marriage and Children of Family

Financial provision and property adjustment orders

21 Financial provision and property adjustment orders

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

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

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

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

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

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

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

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

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

[ F121A Pension sharing orders

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

(a)provides that one party’s—

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

(ii)shareable state scheme rights,

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

(b)specifies the percentage value to be transferred.

(2)In subsection (1) above—

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

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

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

Ancillary relief in connection with divorce proceedings, etc

22 Maintenance pending suit

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

[F122A Financial provision orders: divorce and separation

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

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

(b)any of the children of the family.

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

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

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

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

(d)after a divorce order has been made;

(e)when a separation order is in force.

(3)The court may make—

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

(b)separate orders on different occasions,

(c)different orders in favour of different children,

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

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

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

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

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

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

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

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

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

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

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

(b)directs—

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

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

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

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

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

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

[ F122B Restrictions affecting section 22A

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

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

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

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

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

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

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

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

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

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

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

23 Financial provision orders in connection with divorce proceedings, etc

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[F1(6)Where the court—

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

(b)directs—

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

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

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

[F123A Property adjustment orders: divorce and separation

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

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

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

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

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

[ F123B Restrictions affecting section 23A

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

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

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

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

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

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

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

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

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

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

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

24 Property adjustment orders in connection with divorce proceedings, etc

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

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

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

(c)an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage [F1,other than one in the form of a pension arrangement (within the meaning of section 25D below)];

(d)an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement [F1, other than one in the form of a pension arrangement (within the meaning of section 25D below)];

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

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

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

[F124A Orders for sale of property

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

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

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

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

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

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

(5)Where an order under subsection (1) above contains a provision requiring the proceeds of sale of the property to which the order relates to be used to secure periodical payments to a party to the marriage, the order shall cease to have effect on the death or re-marriage of [F2, or formation of a civil partnership by,] that person.

[F3(6)Where a party to a marriage has a beneficial interest in any property, or in the proceeds of sale thereof, and some other person who is not a party to the marriage also has a beneficial interest in that property or in the proceeds of sale thereof, then, before deciding whether to make an order under this section in relation to that property, it shall be the duty of the court to give that other person an opportunity to make representations with respect to the order; and any representations made by that other person shall be included among the circumstances to which the court is required to have regard under section 25(1) below.]]

[ F124BPension sharing orders in connection with divorce proceedings etc

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

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

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

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

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

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

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

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

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

[F124BA Restrictions affecting section 24B

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

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

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

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

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

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

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

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