Office of Public Sector Information
SCHEDULE 5 continued PART 11 continued
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.
(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.
60 (1) This paragraph applies if the person liable to make payments under a secured periodical payments order has died.
(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.
61 (1) If the court, in exercise of its powers under this Part, decides—
(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—
(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.
63 (1) This paragraph applies if any arrears are due under—
(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.
64 (1) This paragraph applies if—
(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.
65 (1) Sub-paragraphs (3) and (4) apply if—
(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.
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.
(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.
67 (1) In this Part “maintenance agreement” means any agreement in writing between the civil partners in a civil partnership which—
(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.
68 If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements—
(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.
69 (1) 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—
(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.
(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.
70 (1) A magistrates' court must not entertain an application under paragraph 69(1) unless—
(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.
71 (1) If a court decides to make an order under paragraph 69 altering an agreement—
(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.
72 Nothing in paragraphs 68 to 71 affects—
(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.
73 (1) This paragraph applies if—
(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).
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.
(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—
(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.
76 (1) This paragraph applies if the court decides to make—
(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.
77 The fact that—
(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).
78 (1) This paragraph applies if—
(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.
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.
(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).
Civil Partnership Act 2004