Commentary on Sections Schedule 7 - Financial relief in England and Wales after overseas dissolution etc. of a civil partnership Part 1 Financial relief
585.Part 1 provides that the Schedule will apply where a civil partnership has been dissolved or annulled or the civil partners have been legally separated in an overseas country and the dissolution etc is entitled to be recognised as valid in England and Wales. For the circumstances in which an overseas dissolution, annulment or legal separation is entitled to be recognised in England and Wales see sections 234 to 237 (and note section 234(2) and the power to make regulations under section 219 for the recognition of orders made in an EU member State).
586.Under paragraph 2 either civil partner may apply to the court for orders under paragraph 9 or 13 of the Schedule. However, under paragraph 3 no application will be possible if the applicant has subsequently formed a new civil partnership or married. Paragraph 4 provides that the courts’ permission is required for an application to be made.
587.Under paragraph 5 where it appears to the court that the applicant or a child of the family is in need of immediate assistance, an interim order for maintenance may be made in favour of the applicant or the child.
588.Paragraph 7 sets out the circumstances in which the court has jurisdiction to hear an application under the Schedule. One of the civil partners must be domiciled or have been habitually resident in England and Wales for a period of one year when the application is made or when the civil partnership was dissolved or annulled or the order for legal separation was made. Alternatively either or both of the civil partners must have an interest in a dwelling-house in England and Wales on the date of application for leave to apply which was at some time during the civil partnership a civil partnership home of the civil partners.
589.Paragraph 8 provides that the court must consider whether England and Wales is the appropriate venue for the application, and outlines the criteria the court is to take into account when considering this. If the court is not satisfied that England and Wales is the appropriate venue it must dismiss the application.
590.Paragraph 9 describes the orders that the court is able to make on applications under this Schedule. The court may make the same orders for financial provision as are available under Part 1, 2 and 4 of Schedule 5 to the Act for civil partnerships formed in England and Wales, including orders for property adjustment and pension sharing if the civil partnership has been dissolved or annulled. If the civil partners are legally separated the court may make orders for financial provision and property adjustment as provided in Parts 1 and 2 of Schedule 5 to the Act.
591.Paragraph 10 sets out the matters to which the court must have regard when exercising its powers under this Schedule, which are the same as those to be considered when making financial provision following a dissolution, annulment or legal separation order made in England and Wales.
592.Paragraph 11 restricts the court’s powers when its jurisdiction to deal with the application arises only from the fact that the civil partnership home is situated in England and Wales.
593.Paragraph 12 provides for the court to make an order on terms agreed by the civil partners (a consent order).
594.Paragraph 13 provides for the court to order transfer of tenancies of dwelling houses.
595.Paragraph 14 applies certain provisions of Schedule 5 to interim orders or orders for financial provision, property adjustment and pension sharing made under paragraphs 5 and 9 of this Schedule.
596.Paragraph 15 provides for the avoidance of transactions designed to defeat claims under paragraphs 5 and 9. Where one of the civil partners (A) is granted leave to make an application for an order under paragraph 9 and the court is satisfied that the other civil partner (B) is, with the intention of defeating a claim by A, about to deal with any property, it may make an order restraining B from doing so. Paragraph 15 also provides that where one civil partner (A) is granted leave to make an application under paragraph 9 or where an order has been made under paragraph 5 or 9 and the other civil partner (B) has, with the intention of defeating a claim by A, made a disposition, then the court may in certain circumstances set aside the disposition.
597.Paragraph 16 provides circumstances in which it can be presumed, for the purposes of paragraph 15, that the person who disposed of or is about to dispose of property did so, or is about to do so, with the intention of defeating the other civil partner’s claim.