N.I.

PART IN.I.INTRODUCTORY

Title and commencementN.I.

1.-(1) This Order may be cited as the Matrimonial and Family Proceedings (Northern Ireland) Order 1989.

(2) Except as provided by paragraph (3), this Order shall come into operation on the expiration of two months from the day on which it is made.

(3) The following provisions namely-

(a)Article 10;

(b)Article 13;

(c)Part IV;

(d)Part V;

(e)Part VI and Schedule 1;

(f)in Schedule 2, paragraphs 1 to 9, 15 and 16(a) and (b); and

(g)Schedule 3, except so far as it relates to the principal Order,

shall come into operation on such day or days as the Secretary of State may by order appointF1.

InterpretationN.I.

2.-(1) The Interpretation Act (Northern Ireland) 1954F2 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

(2) In this Order "the principal Order" means the Matrimonial Causes (Northern Ireland) Order 1978F3.

PART IIN.I.TIME RESTRICTIONS ON PRESENTATION OF PETITIONS FOR DIVORCE OR NULLITY OF MARRIAGE

Bar on petitions for divorce within two years of marriageN.I.

3. For Article 5 of the principal Order (which provides that no petition for divorce shall be presented within three years of marriage unless the leave of the court has been obtained) there shall be substituted the following Article-

Extension of period for proceedings for decree of nullity in respect of voidable marriageN.I.

4.-(1) Article 16 of the principal Order (which imposes restrictions on the institution of proceedings for a decree of nullity in respect of a voidable marriage) shall be amended as follows.

(2) For paragraph (2) there shall be substituted the following paragraph-

"(2) Without prejudice to paragraph (1), the court shall not grant a decree of nullity by virtue of Article 14 on the grounds mentioned in paragraph (c), (d), (e) or (f) of that Article unless-

(a)it is satisfied that proceedings were instituted within the period of three years from the date of the marriage, or

(b)leave for the institution of proceedings after the expiration of that period has been granted under paragraph (4)." .

(3) At the end of the Article there shall be added the following paragraphs-

"(4) In the case of proceedings for the grant of a decree of nullity by virtue of Article 14 on the grounds mentioned in paragraph (c), (d), (e) or (f) of that Article, a judge of the court may, on an application made to him, grant leave for the institution of proceedings after the expiration of the period of three years from the date of the marriage if-

(a)he is satisfied that the petitioner has at some time during that period suffered from mental disorder within the meaning of the Mental Health (Northern Ireland) Order 1986F4; and

(b)he considers that in all the circumstances of the case it would be just to grant leave for the institution of proceedings.

(5) An application for leave under paragraph (4) may be made after the expiration of the period of three years from the date of the marriage." .

PART IIIN.I.FINANCIAL RELIEF IN MATRIMONIAL PROCEEDINGS

Provisions relating to powers of the High Court and county courtsN.I.

Interest on lump sumsN.I.

5. In Article 25 of the principal Order (financial provision orders in connection with divorce proceedings, etc.) after paragraph (6) there shall be added the following paragraph-

"(7) Where the court

(a)makes an order under this Article 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." .

Orders for financial relief after divorce, etc.N.I.

6. For Article 27 of the principal Order there shall be substituted the following Articles-

Orders for financial relief in case of neglect to maintainN.I.

7. In Article 29 of the principal Order (financial provision in case of neglect to maintain) for paragraphs (2) and (3) there shall be substituted the following paragraphs-

"(2) Where an application under this Article is made on the ground mentioned in paragraph (1)(a), then, in deciding-

(a)whether the respondent has failed to provide reasonable maintenance for the applicant, and

(b)what order, if any, to make under this Article in favour of the applicant, it shall be the duty of the court to have regard to all the circumstances of the case (including the matters mentioned in Article 27(2)(a) to (g)), first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18.

(3) Where an application under this Article is made on the ground mentioned in paragraph (1)(b), then, in deciding-

(a)whether the respondent has failed to provide, or to make a proper contribution towards, reasonable maintenance for the child of the family to whom the application relates, and

(b)what order, if any, to make under this Article in favour of the child,

it shall be the duty of the court to have regard to all the circumstances of the case (including the matters specified in paragraph (3A)), first consideration being given to the welfare while a minor of the child.

(3A) The matters referred to in paragraph (3) are-

(a)where the child of the family to whom the application relates is not the child of the respondent, the matters mentioned in Article 27(3)(a) to (e) and those mentioned in Article 27(4)(a) to (c);

(b)in any other case, the matters mentioned in Article 27(3)(a) to (e)." .

Duration of orders for periodical payments and effect of remarriageN.I.

8.-(1) In Article 30(1) of the principal Order (duration of continuing financial provision orders in favour of party to a marriage), for the words from the beginning to "the following limits" there shall be substituted the words " Subject in the case of an order made on or after the grant of a decree of divorce or nullity of marriage to the provisions of Articles 27A(2) and 33(7), the term to be specified in a periodical payments or secured periodical payments order in favour of a party to a marriage shall be such term as the court thinks fit, except that the term shall not begin before or extend beyond the following limits" .

(2) After paragraph (1) of the said Article 30 there shall be inserted the following paragraph-

"(1A) Where a periodical payments or secured periodical payments order in favour of a party to a marriage is made on or after the grant of a decree of divorce or nullity of marriage, the court may direct that that party shall not be entitled to apply under Article 33 for the extension of the term specified in the order" .

(3) In paragraph (3) of the said Article 30 (effect of remarriage on financial provision orders), after the word "remarries" there shall be inserted the words " whether at any time before or after the commencement of this Article" .

(4) In Article 31(2) of the principal Order (duration of continuing financial provision orders in favour of children), in sub-paragraph (a), for the words "unless the court thinks it right in the circumstances of the case to specify a later date" there shall be substituted the words " 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" .

Variation and discharge of orders for periodical paymentsN.I.

9.-(1) Article 33 of the principal Order (variation and discharge of orders) shall be amended as follows.

(2) In paragraph (1) after the words "subject to the provisions of this Article" there shall be inserted the words " and of Article 30(1A)" .

(3) After paragraph (2) there shall be inserted the following paragraph-

"(2A) Where the court has made an order referred to in paragraph (2)(a), (b) or (c), then, subject to the provisions of this Article, the court shall have power to remit the payment of any arrears due under the order or of any part thereof." .

(4) For paragraph (7) there shall be substituted the following paragraph-

"(7) In exercising the powers conferred by this Article the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18, and the circumstances of the case shall include 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, and-

(a)in the case of a periodical payments or secured periodical payments order made on or after the grant of a decree of divorce or nullity of marriage, the court shall 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 to be made or secured only for such further period as will in the opinion of the court be sufficient to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments;

(b)in a case where the party against whom the order was made has died, the circumstances of the case shall also include the changed circumstances resulting from his or her death." .

(5) After paragraph (9) there shall be added the following paragraph-

"(10) Where the court, in exercise of its powers under this Article, decides to vary or discharge a periodical payments or secured periodical payments order, then, subject to Article 30(1) and (2), the court shall have power to direct that the variation or discharge shall not take effect until the expiration of such period as may be specified in the order." .

Consent orders for financial provision or property adjustmentN.I.

10. The following cross-heading and Article shall be inserted after Article 35 of the principal Order-

Restrictions imposed in divorce proceedings etc., on applications under Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979N.I.

11. For paragraph (1) of Article 17 of the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979F5 (under which the court on the grant of a decree of divorce, nullity or judicial separation has power, if the parties to the marriage agree, to order that one party shall not on the death of the other party be entitled to apply for an order under Article 4 of that Order) there shall be substituted the following paragraph-

"(1) On the grant of a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter the High Court or a divorce county court, if it considers it just to do so, may, on the application of either party to the marriage, order that the other party to the marriage shall not on the death of the applicant be entitled to apply for an order under Article 4." .

Provisions relating to powers of courts of summary jurisdictionN.I.

Orders for financial relief made by courts of summary jurisdiction in matrimonial proceedingsN.I.

12.-(1) For Article 5 of the Domestic Proceedings (Northern Ireland) Order 1980F6 there shall be substituted the following Article-

(2) In Article 7(2) of that Order (duration of periodical payments orders in favour of children), in sub-paragraph (a), for the words "unless the court thinks it right in the circumstances of the case to specify a later date" there shall be substituted the words " 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".

(3) In Article 22(11) of that Order (variation and revocation of orders for periodical payments) for the words "including any change" there shall be substituted the words " first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18, and the circumstances of the case shall include any change" .

Orders for payments which have been agreed by the partiesN.I.

13. For Article 8 of the Domestic Proceedings (Northern Ireland) Order 1980F7 there shall be substituted the following Article-

Variation of consent orders by courts of summary jurisdictionN.I.

14. For Article 22(2) of the Domestic Proceedings (Northern Ireland) Order 1980F8 (under which the court can vary a consent order by ordering the payment of a lump sum if the consent order provided for the payment of a lump sum) there shall be substituted the following paragraph-

"(2) Where the court has made an order under Article 8 for the making of periodical payments by a party to a marriage the court shall have power, on an application made under this Article, to vary or revoke that order and also to make an order for the payment of a lump sum by that party either-

(a)to the other party to the marriage, or

(b)to a child of the family or to that other party for the benefit of that child." .

Domestic proceedings in courts of summary jurisdiction to include applications to alter maintenance agreementsN.I.

15. In Article 88 of the Magistrates' Courts (Northern Ireland) Order 1981F9 (which defines what proceedings are domestic proceedings) after paragraph (c) there shall be inserted the following paragraph-

"(cc)under Article 37 of the Matrimonial Causes (Northern Ireland) Order 1978;" .

PART IVN.I.FINANCIAL RELIEF IN NORTHERN IRELAND AFTER OVERSEAS DIVORCE ETC.

Applications for financial reliefN.I.

Applications for financial relief after overseas divorce etc.N.I.

16.-(1) Where-

(a)a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and

(b)the divorce, annulment or legal separation is entitled to be recognised as valid in Northern Ireland,

either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part.

(2) If after a marriage has been dissolved or annulled in an overseas country one of the parties to the marriage[F10 forms a subsequent marriage or civil partnership,] that party shall not be entitled to make an application in relation to that marriage.

The reference in paragraph (2) to the forming of a subsequent marriage or civil partnership includes a reference to the forming of a marriage or civil partnership which is by law void or voidable.]

In this Part, except Articles 23, 27 and 28, "order for financial relief" means an order under Article 21 or 26 of a description referred to in that Article.

Leave of the court required for applications for financial reliefN.I.

17.-(1) No application for an order for financial relief shall be made under this Part unless the leave of the court has been obtained in accordance with rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order.

(2) The court may grant leave under this Article notwithstanding that an order has been made by a court in a country outside Northern Ireland requiring the other party to the marriage to make any payment or transfer any property to the applicant or a child of the family.

(3) Leave under this Article may be granted subject to such conditions as the court thinks fit.

Interim orders for maintenanceN.I.

18.-(1) Where leave is granted under Article 17 for the making of an application for an order for financial relief and it appears to the court that the applicant or any child of the family is in immediate need of financial assistance, the court may make an interim order for maintenance, that is to say, an order requiring the other party to the marriage to make to the applicant or to the child such periodical payments, and for such term, being a term beginning not earlier than the date of the grant of leave and ending with the date of the determination of the application for an order for financial relief, as the court thinks reasonable.

(2) If it appears to the court that the court has jurisdiction to entertain the application for an order for financial relief by reason only of sub-paragraph (c) of Article 19(1) the court shall not make an interim order under this Article.

(3) An interim order under paragraph (1) may be made subject to such conditions as the court thinks fit.

Jurisdiction of the courtN.I.

19.-(1) Subject to paragraph (2), the court shall have jurisdiction to entertain an application for an order for financial relief if any of the following jurisdictional requirements are satisfied, that is to say-

(a)either of the parties to the marriage was domiciled in Northern Ireland on the date of the application for leave under Article 17 or was so domiciled on the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or

(b)either of the parties to the marriage was habitually resident in Northern Ireland throughout the period of one year ending with the date of the application for leave or was so resident throughout the period of one year ending with the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or

(c)either or both of the parties to the marriage had at the date of the application for leave a beneficial interest in possession in a dwelling-house situated in Northern Ireland which was at some time during the marriage a matrimonial home of the parties to the marriage.

(2) Where the jurisdiction of the court to entertain proceedings under this Part would fall to be determined by reference to the jurisdictional requirements imposed by virtue of Part I of the Civil Jurisdiction and Judgments Act 1982F11 (implementation of certain European conventions)[F12 or by virtue of Council Regulation (EC) No.44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters or] then-

(a)satisfaction of the requirements of paragraph (1) shall not obviate the need to satisfy the requirements imposed by virtue of[F12 that Regulation or] Part I of that Act; and

(b)satisfaction of the requirements imposed by virtue of[F12 that Regulation or] Part I of that Act shall obviate the need to satisfy the requirements of paragraph (1);

and the court shall entertain or not entertain the proceedings accordingly.

Duty of the court to consider whether Northern Ireland is appropriate venue for applicationN.I.

20.-(1) Before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in Northern Ireland, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application.

(2) The court shall in particular have regard to the following matters-

(a)the connection which the parties to the marriage have with Northern Ireland;

(b)the connection which those parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated;

(c)the connection which those parties have with any other country outside Northern Ireland;

(d)any financial benefit which the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a country outside Northern Ireland;

(e)in a case where an order has been made by a court in a country outside Northern Ireland requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;

(f)any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside Northern Ireland and if the applicant has omitted to exercise that right the reason for that omission;

(g)the availability in Northern Ireland of any property in respect of which an order under this Part in favour of the applicant could be made;

(h)the extent to which any order made under this Part is likely to be enforceable;

(i)the length of time which has elapsed since the date of the divorce, annulment or legal separation.

Orders for financial provision and property adjustmentN.I.

[F13Orders for financial provision and property adjustmentN.I.

Subject to Article 24, on an application by a party to a marriage for an order for financial relief under this Article, the court may-

(a)make any one or more of the orders which it could make under Part III of the principal Order if a decree of divorce, a decree of nullity of marriage or a decree of judicial separation in respect of the marriage had been granted in Northern Ireland, that is to say-

(i)any order mentioned in Article 25(1) of the principal Order (financial provision orders);

(ii)any order mentioned in Article 26(1) of that Order (property adjustment orders); and

(b)if the marriage has been dissolved or annulled, make one or more orders each of which would, within the meaning of that Part, be a pension sharing order in relation to the marriage.]

Matters to which the court is to have regard in exercising its powers under Article 21N.I.

22.-(1) In deciding whether to exercise its powers under Article 21 and, if so, in what manner the court shall act in accordance with this Article.

(2) The court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18.

(3) As regards the exercise of those powers in relation to a party to the marriage, the court shall in particular have regard to the matters mentioned in Article 27(2)(a) to (h) of the principal Order and shall be under duties corresponding with those imposed by Article 27A(1) and (2) of the principal Order where it decides to exercise under Article 21 powers corresponding with the powers referred to in those paragraphs.

The matters to which the court is to have regard under paragraph (3)-

(a)so far as relating to sub-paragraph (a) of Article 27(2) of the principal Order, include any benefits under a pension arrangement which a party to the marriage has or is likely to haveF15 (whether or not in the foreseeable future), and

F16(b)so far as relating to sub-paragraph (h) of that provision, include any benefits under a pension arrangement which, by reason of the dissolution or annulment of the marriage, a party to the marriage will lose the chance of acquiring.]

As regards the exercise of those powers in relation to a child of the family, the court shall in particular have regard to the matters mentioned in Article 27(3)(a) to (e) of the principal Order.

(5) As regards the exercise of those powers against a party to the marriage in favour of a child of the family who is not the child of that party, the court shall also have regard to the matters mentioned in Article 27(4)(a) to (c) of the principal Order.

(6) Where an order has been made by a court outside Northern Ireland for the making of payments or the transfer of property by a party to the marriage, the court in considering in accordance with this Article the financial resources of the other party to the marriage or a child of the family shall have regard to the extent to which that order has been complied with or is likely to be complied with.

In this Article-

(a)"pension arrangement" has the meaning given by Article 27D(3) of the principal Order, and

(b)references to benefits under a pension arrangement include any benefits by way of pension, whether under a pension arrangement or not.F17]

Consent orders for financial provision or property adjustmentN.I.

23.-(1) Notwithstanding anything in Article 22, 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 the prescribed information furnished with the application.

(2) 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 Article-

"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 Article 21; and

"prescribed" means prescribed by rules of court.

Restriction of powers of court where jurisdiction depends on matrimonial home in Northern IrelandN.I.

24.-(1) Where the court has jurisdiction to entertain an application for an order for financial relief by reason only of the situation in Northern Ireland of a dwelling-house which was a matrimonial home of the parties, the court may make under Article 21 any one or more of the following orders (but no other)-

(a)an order that either party to the marriage shall pay to the other such lump sum as may be specified in the order;

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

(c)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 so specified for the benefit of such a child, the interest of the first-mentioned party in the dwelling-house, or such part of that interest as may be so specified;

(d)an order that a settlement of the interest of a party to the marriage in the dwelling-house, or such part of that interest as may be so specified, 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;

(e)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 so far as that settlement relates to an interest in the dwelling-house;

(f)an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement so far as that interest is an interest in the dwelling-house;

(g)an order for the sale of the interest of a party to the marriage in the dwelling-house.

(2) Where, in the circumstances mentioned in paragraph (1) the court makes an order for the payment of a lump sum by a party to the marriage, the amount of the lump sum shall not exceed, or where more than one such order is made the total amount of the lump sums shall not exceed in aggregate, the following amount, that is to say-

(a)if the interest of that party in the dwelling-house is sold in pursuance of an order made under paragraph (1)(g), the amount of the proceeds of the sale of that interest after deducting therefrom any costs incurred in the sale thereof;

(b)if the interest of that party is not so sold, the amount which in the opinion of the court represents the value of that interest.

(3) Where the interest of a party to the marriage in the dwelling-house is held jointly or in common with any other person or persons-

(a)the reference in paragraph (1)(g) to the interest of a party to the marriage shall be construed as including a reference to the interest of that other person, or the interest of those other persons, in the dwelling-house, and

(b)the reference in paragraph (2)(a) to the amount of the proceeds of a sale ordered under paragraph (1)(g) shall be construed as a reference to that part of those proceeds which is attributable to the interest of that party to the marriage in the dwelling-house.

Application to orders under Articles 18 and 21 of certain provisions of Part III of the principal OrderN.I.

25.-[F18(1)] The following provisons of Part III of the principal Order (financial relief for parties to marriage and children of family) shall apply in relation to an order under Article 18 or 21 as they apply in relation to a like order under that Part of that Order, that is to say-

(a)Article 25(3) (provisions as to lump sums);

(b)Article 25(6) (consequential directions by court);

[F18(ba)Article 26A(3) to (5) (provisions about pension sharing orders in relation to divorce and nullity);

(bb)Article 26B (duty to stay pension sharing orders);

(bc)Article 26C (apportionment of pension sharing charges);]

[F18(bd)Article 27B(3) to (9) (power, by financial provision order, to attach payments under a pension arrangement, or to require the exercise of a right of commutation under such an arrangement);

(be)Article 27C (extension of lump sum powers in relation to death benefits under a pension arrangement);]

F19(c)Article 30(1) and (2) (duration of continuing financial provision orders in favour of party to marriage);

(d)Article 31 (duration of continuing financial provision orders in favour of children, and age limit on making certain orders in their favour);

(e)Article 32 (direction for settlement of instrument for securing payments or effecting property adjustment), except paragraph (b);

(f)Article 33 (variation, discharge etc. of certain orders for financial relief), except paragraph (2)(e) and paragraph (4);

(g)Article 34 (payment of certain arrears unenforceable without the leave of the court);

(h)Article 35 (orders for repayment of sums paid under certain orders);

(i)Article 40 (orders for repayment of sums paid after cessation of order by reason of remarriage);

(j)Article 41 (settlements etc. made in compliance with a property adjustment order may be avoided on bankruptcy of settlor); and

(k)Article 42 (payments etc. under order made in favour of person suffering from mental disorder).

[F18(l)Article 42A (appeals relating to pension sharing orders which have taken effect).]

Paragraph (1)(bd) and (be) shall not apply where the court has jurisdiction to entertain an application for an order for financial relief by reason only of the situation in Northern Ireland of a dwelling-house which was a matrimonial home of the parties.

Article 27D(1) of the principal Order (effect of transfers on orders relating to rights under a pension arrangement) shall apply in relation to an order made under Article 21 by virtue of paragraph (1)(bd) or (be) as it applies in relation to an order made under Article 25 of the principal Order by virtue of Article 27B or 27C of that Order.

The Lord Chancellor may by regulations make for the purposes of this Part provision corresponding to any provision which may be made by him under paragraphs (2) and (2A) of Article 27D of the principal Order.

Regulations under this Article shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.]

Orders for transfer of tenanciesN.I.

[F20Powers of the court in relation to certain tenancies of dwelling-housesN.I.

26.-(1) This Article applies if-

(a)an application is made by a party to a marriage for an order for financial relief; and

(b)one of the parties to the marriage is entitled, either in his own right or jointly with the other party, to occupy a dwelling-house situated in Northern Ireland by virtue of a tenancy which is a tenancy mentioned in Schedule 2 to the Family Homes and Domestic Violence (Northern Ireland) Order 1998.

The court may make in relation to that dwelling-house any order which it could make under Part II of that Schedule if a decree of divorce, a decree of nullity of marriage or a decree of judicial separation had been granted in Northern Ireland in respect of the marriage.

The provisions of paragraphs 9, 10 and 13(1) in Part III of that Schedule shall apply in relation to any order made under this Article as they apply to any order under Part II of that Schedule.]

Avoidance of transactions intended to prevent or reduce financial reliefN.I.

Avoidance of transactions intended to defeat applications for financial reliefN.I.

27.-(1) For the purposes of this Article "financial relief" means relief under Article 18 or 21 and any reference to defeating a claim by a party to a marriage for financial relief is a reference to preventing financial relief from being granted or reducing the amount of relief which might be granted, or frustrating or impeding the enforcement of any order which might or has been made under either of those provisions at the instance of that party.

(2) Where leave is granted under Article 17 for the making by a party to a marriage of an application for an order for financial relief under Article 21, the court may, on an application by that party-

(a)if it is satisfied that the other party to the marriage is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim;

(b)if it is satisfied that the other party has, with that intention, made a reviewable disposition and that if the disposition were set aside financial relief or different financial relief would be granted to the applicant, make an order setting aside the disposition.

(3) Where an order for financial relief under Article 18 or 21 has been made by the court at the instance of a party to a marriage, then, on an application made by that party, the court may, if it is satisfied that the other party to the marriage has, with the intention of defeating the claim for financial relief, made a reviewable disposition, make an order setting aside the disposition.

(4) Where the court has jurisdiction to entertain the application for an order for financial relief by reason only of sub-paragraph (c) of Article 19(1), it shall not make any order under paragraph (2) or (3) in respect of any property other than the dwelling-house concerned.

(5) Where the court makes an order under paragraph (2)(b) or (3) setting aside a disposition it shall 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).

(6) Any disposition made by the other party to the marriage (whether before or after the commencement of the application) is a reviewable disposition for the purposes of paragraphs (2)(b) and (3) unless it was made for valuable consideration (other than marriage) 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 the part of the other party to defeat the applicant's claim for financial relief.

(7) Where an application is made under paragraph (2) or (3) with respect to a disposition which took place less than three 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 (2)(a) or (b), that the disposition or other dealing would (apart from this Article) have the consequence, or

(b)in a case falling within paragraph (3), that the disposition has had the consequence,

of defeating a claim by the applicant for financial relief, it shall be 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 the applicant's claim for financial relief.

(8) In this Article "disposition" does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise.

(9) The preceding provisions of this Article are without prejudice to any power of the court to grant injunctions under section 91 of the Judicature (Northern Ireland) Act 1978F21.

Prevention of transactions intended to defeat prospective applications for financial reliefN.I.

28.-(1) Where, on an application by a party to a marriage, it appears to the court-

(a)that the marriage has been dissolved or annulled, or that the parties to the marriage have been legally separated, by means of judicial or other proceedings in an overseas country; and

(b)that the applicant intends to apply for leave to make an application for an order for financial relief under Article 21 as soon as he or she has been habitually resident in Northern Ireland for a period of one year; and

(c)that the other party to the marriage is, with the intention of defeating a claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property,

the court may make such order as it thinks fit for restraining the other party from taking such action as is mentioned in sub-paragraph (c).

(2) For the purposes of an application under paragraph (1)-

(a)the reference to defeating a claim for financial relief shall be construed in accordance with paragraph (1) of Article 27 (omitting the reference to any order which has been made); and

(b)paragraphs (7) and (8) of Article 27 shall apply as they apply for the purposes of an application under that Article.

(3) The preceding provisions of this Article are without prejudice to any power of the court to grant injunctions under section 91 of the Judicature (Northern Ireland) Act 1978F22.

Financial provision out of estate of deceased party to marriageN.I.

Extension of powers under Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979 in respect of former spousesN.I.

29.-(1) The Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979F23 shall have effect with the following amendments, being amendments designed to give to persons whose marriages are dissolved or annulled overseas the same rights to apply for provision under that Order as persons whose marriages are dissolved or annulled under the principal Order.

(2) In Article 2(2) for the definition of "former wife" and "former husband" there shall be substituted the following definition-

"" former wife" or "former husband" means a person whose marriage with the deceased was during the lifetime of the deceased either-

(a)dissolved or annulled by a decree of divorce or a decree of nullity of marriage granted under the law of any part of the United Kingdom or the Channel Islands or under the law of the Isle of Man, or

(b)dissolved or annulled in any country or territory outside the United Kingdom, the Channel Islands and the Isle of Man by a divorce or annulment which is entitled to be recognised as valid by the law of Northern Ireland;" .

(3) After Article 17 (restriction in divorce proceedings etc. of applications under the Order) there shall be inserted the following Article-

InterpretationN.I.

Interpretation of Part IVN.I.

30. In this Part-

• "child of the family" and "rules of court" have the same meanings as in the principal Order;

• "the court" means the High Court;

• "dwelling-house" includes any building or part thereof which is occupied as a dwelling, and any yard, garden, garage or outhouse belonging to the dwelling-house and occupied therewith;

• "order for financial relief" has the meaning given by Article 16(4);

• "overseas country" means a country or territory outside the United Kingdom, the Channel Islands and the Isle of Man;

• "possession" includes receipt of, or the right to receive, rents and profits;

• "rent" does not include mortgage interest.

PART VN.I.DECLARATIONS OF STATUS

Declarations as to marital statusN.I.

31.-(1) Subject to the provisions of this Article, any person may apply to the court for one or more of the following declarations in relation to a marriage specified in the application, that is to say-

(a)a declaration that the marriage was at its inception a valid marriage;

(b)a declaration that the marriage subsisted on a date specified in the application;

(c)a declaration that the marriage did not subsist on a date so specified;

(d)a declaration that the validity of a divorce, annulment or legal separation obtained in any country outside Northern Ireland in respect of the marriage is entitled to recognition in Northern Ireland;

(e)a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in Northern Ireland.

(2) A court shall have jurisdiction to entertain an application under paragraph (1) if (and only if) either of the parties to the marriage to which the application relates-

(a)is domiciled in Northern Ireland on the date of the application, or

(b)has been habitually resident in Northern Ireland throughout the period of one year ending with that date, or

(c)died before that date and either-

(i)was at death domiciled in Northern Ireland, or

(ii)had been habitually resident in Northern Ireland throughout the period of one year ending with the date of death.

(3) Where an application under paragraph (1) is made by any person other than a party to the marriage to which the application relates, the court shall refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of that application.

Art. 31A inserted prosp. by 1993 NI 6

[F24Declarations of parentageN.I.

31B.-(1) Subject to the provisions of this Article, any person may apply to the High Court, a county court or a court of summary jurisdiction for a declaration as to whether or not a person named in the application is or was the parent of another person so named.

A court shall have jurisdiction to entertain an application under paragraph (1) if, and only if, either of the persons named in it for the purposes of that paragraph-

(a)is domiciled in Northern Ireland on the date of the application, or

(b)has been habitually resident in Northern Ireland throughout the period of one year ending with that date, or

(c)died before that date and either-

(i)was at death domiciled in Northern Ireland, or

(ii)had been habitually resident in Northern Ireland throughout the period of one year ending with the date of death.

Except in a case falling within paragraph (4), the court shall refuse to hear an application under paragraph (1) unless it considers that the applicant has a sufficient personal interest in the determination of the application (but this is subject to Article 28 of the Child Support (Northern Ireland) Order 1991).

The excepted cases are where the declaration sought is as to whether or not-

(a)the applicant is the parent of a named person;

(b)a named person is the parent of the applicant; or

(c)a named person is the other parent of a named child of the applicant.

Where an application under paragraph (1) is made and one of the persons named in it for the purposes of that paragraph is a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child.

Where a court refuses to hear an application under paragraph (1) it may order that the applicant may not apply again for the same declaration without leave of the court.

Where a declaration is made by a court on an application under paragraph (1), the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration.

In this Article-

• "prescribed" means prescribed by rules of court;

• "Registrar General" has the same meaning as in the Births and Deaths Registration (Northern Ireland) Order 1976;

• "rules of court" has the same meaning as in Article 36(5), but in relation to an application made to, or a declaration made by, a court of summary jurisdiction, means magistrates' courts rules.]

[F25Declaration of parentage, legitimacy or legitimationN.I.

32.-(1) Any person may apply to the court for a declaration-

(b)that he is the legitimate child of his parents.

Any person may apply to the court for one (or for one or, in the alternative, the other) of the following declarations, that is to say-

(a)a declaration that he has become a legitimated person;

(b)a declaration that he has not become a legitimated person.

A court shall have jurisdiction to entertain an application under this Article if (and only if) the applicant-

(a)is domiciled in Northern Ireland on the date of the application; or

(b)has been habitually resident in Northern Ireland throughout the period of one year ending with that date.

Where a declaration is made on an application under paragraph (1), the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration.

In this Article-

"legitimated person" means a person legitimated or recognised as legitimated-

(a)under section 1 or 8 of the Legitimacy Act (Northern Ireland) 1928; or

(b)by a legitimation (whether or not by virtue of the subsequent marriage of his parents) recognised by the law of Northern Ireland and effected under the law of another country;

"prescribed" means prescribed by rules of court;

"Registrar General" has the same meaning as in the Births and Deaths Registration (Northern Ireland) Order 1976;

"rules of court" has the same meaning as that given in Article 36(5).]

Declarations as to adoptions effected overseasN.I.

33.-(1) Any person whose status as an adopted child of any person depends on whether he has been adopted by that person by either-

[F26(a)a Convention adoption as defined by Article 2(2) of the Adoption (Northern Ireland) Order 1987 or an overseas adoption as so defined; or]

(b)an adoption recognised by the law of Northern Ireland and effected under the law of any country outside the United Kingdom, the Channel Islands and the Isle of Man;

may apply to the court for one (or for one or, in the alternative, the other) of the declarations mentioned in paragraph (2).

(2) The said declarations are-

(a)a declaration that the applicant is for the purposes of Article 40 of the Adoption (Northern Ireland) Order 1987F27 the adopted child of that person;

(b)a declaration that the applicant is not for the purposes of that Article the adopted child of that person.

(3) A court shall have jurisdiction to entertain an application under paragraph (1) if (and only if) the applicant-

(a)is domiciled in Northern Ireland on the date of the application, or

(b)has been habitually resident in Northern Ireland throughout the period of one year ending with that date.

General provisions as to the making and effect of declarationsN.I.

34.-(1) Where on an application for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.

(2) Any declaration made under this Part shall be binding on the Crown and all other persons.

(3) The court, on the dismissal of an application for a declaration under this Part, shall not have power to make any declaration for which an application has not been made.

(4) No declaration which may be applied for under this Part may be made otherwise than under this Part by any court.

(5) No declaration may be made by any court, whether under this Part or otherwise-

(a)that a marriage was at its inception void;

Sub-�para. (b) rep. by 2000 c. 4 (NI)

(6) Nothing in this Part shall affect the powers of any court to grant a decree of nullity of marriage.

Provisions relating to the Attorney-GeneralN.I.

35.-(1) On an application for a declaration under this Part the court may at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the Attorney-General.

(2) The Attorney-General, whether or not he is sent papers in relation to an application for a declaration under this Part, may-

(a)intervene in the proceedings on that application in such manner as he thinks necessary or expedient, and

(b)argue before the court any question in relation to the application which the court considers it necessary to have fully argued.

(3) Where any costs are incurred by the Attorney-General in connection with any application for a declaration under this Part, the court may make such order as it considers just as to the payment of those costs by parties to the proceedings.

Supplementary provisions as to declarationsN.I.

36.-(1) Any declaration made under this Part, and any application for such a declaration, shall be in the form prescribed by rules of court.

(2) Rules of court may make provision-

(a)as to the information required to be given by any applicant for a declaration under this Part;

(b)as to the persons who are to be parties to proceedings on an application under this Part;

(c)requiring notice of an application under this Part to be served on the Attorney-General[F28 and on persons who may be affected by any declaration applied for].

(3) No proceedings under this Part shall affect any final judgment or decree already pronounced or made by any court of competent jurisdiction.

(4) The court hearing an application under this Part may direct that the whole or any part of the proceedings shall be heard in camera, and an application for a direction under this paragraph shall be heard in camera unless the court otherwise directs.

(5) In this Article and Article 37(2) "rules of court"

(a)in relation to an application or declaration under Article 31F29, means[F30 family proceedings rules made under Article 12 of the Family Law (Northern Ireland) Order 1993];

(b)in relation to any other application made to, or declaration made by, the High Court, means rules of court within the meaning of section 21(4) of the Interpretation Act (Northern Ireland) 1954F31;

(c)in relation to any other application made to, or declaration made by, the county court, means county court rules within the meaning of section 21(5) of that Act.

An appeal shall lie to the county court against-

(a)the making by a court of summary jurisdiction of a declaration under Article 31B,

(b)any refusal by a court of summary jurisdiction to make such a declaration, or

(c)any order under paragraph (6) of that Article made on such a refusal.]

Declarations in respect of polygamous marriagesN.I.

37.-(1) A court shall not be precluded from making any declaration under this Part involving a determination as to the validity of a marriage by reason only that[F33 either party to the marriage is, or has during the subsistence of the marriage been, married to more than one person].

Provision may be made by rules of court-

(a)for requiring notice of proceedings brought by virtue of this Article to be served on any additional spouse of a party to the marriage in question; and

(b)for conferring on any such additional spouse the right to be heard in the proceedings,

in such cases as may be specified in the rules.]

Repeal of certain statutory provisions relating to declarationsN.I.

38. The following statutory provisions shall cease to have effect, namely-

(a)the Legitimacy Declaration Act (Ireland) 1868F34 (declarations as to legitimacy and validity of marriage); and

(b)section 2 of the Legitimacy Act (Northern Ireland) 1928F35 (declarations as to legitimation).

Abolition of right to petition for jactitation of marriageN.I.

39. No person shall after the coming into operation of this Part be entitled to petition the court for jactitation of marriage.

Meaning of "the court" and appeals from county courtsN.I.

40.-(1) In this Part "the court"

(a)in Article 31F36 and in the other provisions of this Part as they apply for the purposes of that Article means the High Court or a divorce county court within the meaning of the principal Order;

[F37(aa)in Article 31B means the High Court, the county court or a court of summary jurisdiction,]

(b)in the other provisions of this Part means the High Court or the county court.

(2) Without prejudice to Article 61 of the County Courts (Northern Ireland) Order 1980F38 (cases stated),[F39 family proceedings rules made under Article 12 of the Family Law (Northern Ireland) Order 1993] shall make provision for an appeal to the Court of Appeal from any declaration made by a divorce county court on an application under Article 31 or from the dismissal of any such application, upon a point of law, a question of fact or the admission or rejection of any evidence.

(3) A person dissatisfied with a declaration made by a county court on an application under Article 32 or 33 or with the dismissal of any such application made by him shall be entitled to appeal from the declaration or dismissal as if the declaration or dismissal had been made in exercise of the jurisdiction conferred by Part III of the County Courts (Northern Ireland) Order 1980 and the appeal brought under Part VI of that Order and Articles 61 and 62 (cases stated by county court judge and High Court judge, respectively) of that Order shall apply accordingly.

N.I.

Part. VI (Art. 41) rep. by 1998 NI 6

PART VIIN.I.SUPPLEMENTAL PROVISIONS

Art. 42-�Amendments and repeals

Transitional provisionsN.I.

43.-(1) Where at the coming into operation of Article 3-

(a)leave has been granted under Article 5 of the principal Order for the presentation of a petition for divorce or proceedings on an application for leave under that Article are pending, and

(b)the period of two years from the date of the marriage has not expired,

nothing in Article 3 shall prohibit the presentation of a petition for divorce before the expiration of that period; and in relation to such a case Articles 3(5) and 5 of the principal Order as in force immediately before the coming into operation of Article 3 shall continue to apply.

(2) Where at the coming into operation of Article 3-

(a)proceedings on an application for leave under Article 5 of the principal Order are pending, and

(b)the period of two years from the date of the marriage has expired,

the proceedings shall abate but without prejudice to the powers of the court as to costs.

(3) An application for leave under Article 16(4) of the principal Order to institute proceedings after the expiration of the period of three years from the date of the marriage may be made where that period expired before as well as where it expires after the coming into operation of Article 4.

(4) Nothing in this Order shall affect-

(a)any proceedings under the Legitimacy Declaration Act (Ireland) 1868F40 or section 2 of the Legitimacy Act (Northern Ireland) 1928F41 begun before the date of the coming into operation of Part V;

(b)any proceedings for jactitation of marriage begun before that date; or

(c)any proceedings for a declaration begun in the High Court before that date.

N.I.

Schedule 1 rep. by 1998 NI 6

N.I.

Schedule 2-Amendments

N.I.

Schedule 3-Repeals