Office of Public Sector Information
SCHEDULE 5 continued PART 14 continued
80 (1) References in this Schedule to—
(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.
Section 72(3)
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—
(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.
2 (1) The orders are—
(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.
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.
(2) Sub-paragraph (1) does not restrict the power to make the orders set out in paragraph 2(1)(b) and (d).
4 If an application is made for an order under this Part, the court, in deciding—
(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.
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).
(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.
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).
(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.
7 (1) If an application is made for an order under this Part—
(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.
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.
(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.
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.
(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.
10 (1) In this Part “financial provision” means any one or more of the following—
(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.
11 (1) This paragraph applies if—
(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.
12 (1) This paragraph applies if the financial provision specified in an application under this Part—
(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.
13 (1) This paragraph applies if on an application under this Part the court decides—
(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.
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.
(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.
15 (1) If—
(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.
16 (1) The orders are—
(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.
17 The court in the exercise of its powers under this Part must not require—
(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.
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—
(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.
19 Paragraphs 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.
20 (1) This paragraph applies if an application has been made for an order under Part 1, 2 or 3.
(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.
21 (1) An interim order is an order requiring the respondent to make such periodical payments as the court thinks reasonable—
(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.
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.
(2) Sub-paragraph (1) is subject to paragraph 27(7) and (8).
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.
(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.
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—
(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.
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—
(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.
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—
(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.
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.
(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.
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).
(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.
Civil Partnership Act 2004