Commentary on Sections Part 4 – Civil Partnership: Northern Ireland.Introduction Chapter 2 – Dissolution, Nullity and Other Proceedings Section 172: Proceedings before order made final: protection for respondent in separation cases
320.Subsection (1) provides that the court can rescind a dissolution order which has not been made final, where the application was on the basis of 2 years’ separation coupled with the other civil partner’s consent, if the applicant misled their civil partner over any matter which was taken into account when giving that consent.
321.Subsections (2) to (5) allow the respondent to an application for a dissolution order alleging either 2 years’ or 5 years’ separation to apply to the court to consider his or her financial position after dissolution of the civil partnership. The court must consider all the relevant circumstances including the age, health, conduct, earning capacity, financial resources and obligations of each civil partner and the position of the respondent on the death of the applicant, assuming the applicant died first. Under subsection (4) the court must not make the dissolution order final unless it has, by order, declared that it is satisfied either that the applicant should not be required to make financial provision for the respondent or that the provision made for the respondent is reasonable and fair, or is the best that can be made in the circumstances or that there are circumstances making it desirable to make the order final without delay. Subsection (8) provides that if the court will not make an order under subsection (4), it must, on the applicant’s application make an order declaring that it is not satisfied as mentioned in that subsection.
322.Under subsection (5) the court must not declare it is satisfied that the order should be made final without delay unless it has obtained an undertaking from the applicant to bring the question of financial provision for the respondent before the court within a specified time.
323.Subsections (6) and (7) provide that where an application has been made for a dissolution order on the basis of 2 years’ separation or 5 years’ separation, and the court makes a final order without making an order under subsection (4), the final order is voidable at the instance of the respondent or the court, but no person may challenge the validity of the final order on the grounds that subsections (4) and (5) were not satisfied.